Legal Systems in Modern Civilization - Essay Example

appears here] appears here] appears here] appears here] Law Legal systems It has been suggested that an important measure of a civilization is the quality of justice received by its citizens. In the past decade there has been an increasing concern that the traditional adversary system is not adequate to handle effectively all the disputes currently being placed before it. A number of factors have combined to create this concern. The increasing complexities of modern life have increased considerably the number of potential disputes. The capacities of traditional, informal dispute resolution institutions to resolve disputes, such as the family, neighborhood or church, seem to have diminished. The expansion of the role of government in the lives of its citizens has brought with it an increasing number of controversies between citizen and state. There is a perception too that as a people we have become more litigious. All this has resulted in an increase in litigation, aggravating the problems within the current judicial structure, causing delays from the ensuing backlog of cases, higher costs to the parties and the taxpayer, the bureaucratization of dispute-processing systems and exaggeration of minor disputes as a result of regulations, delays and costs. Furthermore, both court congestion and high cost are used as bargaining tools to extract settlements which may otherwise be unacceptable. For many, however, the concern runs deeper. There is a growing awareness that the corner-stone of our judicial structure, the adversary system itself, is not the most appropriate for the effective resolution of all forms of disputes; it may not be capable of resolving a problem to both parties' satisfaction and may easily cause disputes to escalate to more serious levels. Moreover, even though the vast majority of disputes are 'resolved' outside the courtroom, they are still resolved 'under the shadow' of this adversary mentality; for instance, the threat of instituting court proceedings may be enough to exact an inappropriate settlement. It is often unfortunate that the adversary mentality permeates all resolution processes, polarizing the parties and exacerbating their disaffection. Still, negotiated or 'lumped' settlements far exceed in number those resolved through other means. On many occasions the 'threat' of suit is therapeutic where otherwise stubbornness might prevail. The basic philosophy of the adversary system is that it is the best means to find the truth through the testing of the various versions of the disputants by putting each to the proof of his or her claim. Correlatively the burden of establishing legal entitlement rests with the litigants. The system is based on individualistic premises: each party is presumed to be equally motivated and competent to investigate the facts and to present his or her case to a passive, neutral and independent court and each is presumed to have equal opportunity to pursue the claim. Implicitly the system presumes adequate resources in both time and money in order to do so. Each party confronts the other, as an adversary, before the court, each having an opportunity to present her or his story, to a judge, whose business is to decide the dispute under law. Eventually so the theory goes, the truth will emerge at least to the extent it can be discovered. However, it is generally accepted that the practice does not work nearly as well as the theory, despite an absence of empirical evidence either way. Each party will usually not have equal or even adequate time, money, motivation or ability to present his or her case properly. Furthermore, because the system is in part predicated on competitiveness, combativeness and confrontation, the emphasis is less on the best resolution of conflict but rather, oftentimes it seems, on 'winning at all costs'. It is little wonder that this system has been labeled 'the sporting theory of justice'. The end results include a lot of wasted time and money and a perceived lack of fairness in the justice system as a whole. In the final analysis to be efficacious a legal system must be perceived as both fair and just. To the extent that users of the legal system feel dissatisfied there is a strong likelihood of disaffection and loss of faith. There have even been fears that the system might collapse under its own weight. (Michael Zander, 2003) As back in the 1980s, experts and executives similarly heralded alternative dispute resolution (ADR) as a rational, cost-effective means to keep corporations out of court as well as away from the kind of litigation that overwhelms winners almost as much as losers. Over the next few years, above 600 large corporations implemented the ADR policy statement recommended by the Center for Public Resources and several of these companies reported substantial savings in time and money. However the great hopes for ADR faded rapidly. Damage awards, legal billings, as well as the number of lawsuits in the United States carried on rising even for many of the companies that had embraced ADR. In truth, one study found that rather than reducing costs and delays, as a minimum one form of ADR court-annexed arbitration had in fact increased them. What had gone wrong Was ADR really just an empty promise We believed it was not, but lack of success with ADR at so many companies prompted us to take a closer look at how managers were implementing the ADR process. The bad news is that ADR as currently practiced too often mutates into a private judicial system that looks and costs like the litigation it's supposed to prevent. At many companies, ADR procedures now typically include a lot of excess baggage in the form of motions, briefs, discovery, depositions, judges, lawyers, court reporters, expert witnesses, publicity, and damage awards beyond reason (and beyond contractual limits). The good news is that a number of companies have learned to use ADR effectively, and those companies are in fact reaping ADR's predicted benefits: lower costs, quicker dispute resolutions, and outcomes that preserve and sometimes even improve relationships. At Chevron, for instance, ADR-based mediation of one dispute cost $25,000, whereas mediation through outside counsel would have cost an estimated $700,000 and going to court as much as $2.5 million over a period of three to five years. At Toyota's U.S. subsidiary, a Reversal Arbitration Board, set up to ease contention between the company and its dealers concerning allocation of cars and sales credits, has brought about a steady decline in the number of these cases, from 178 cases in 1985 to 3 in 1992. What are Chevron and Toyota doing that other companies are not The difference between success and failure lies chiefly in the level of commitment. Companies that give ADR top priority--even in cases where they're sure they're right--are realizing immense savings of time, money, and relationships. In contrast, companies that let old litigious habits worm their way into the process might as well go back to court. Few companies have made the commitment to ADR more effectively than NCR (recently renamed AT & T Global Information Solutions). NCR executives made a firm commitment to alternative dispute resolution a decade ago, and the results have been dramatic: the number of the company's filed lawsuits (excluding insured risks) pending in the United States dropped from 263 in March 1984 to 28 in November 1993. Last year, only nine disputes incurred outside attorneys' fees exceeding $20,000, and total outside legal fees--not quite $1 million--were less than half what they were in 1984. Moreover, the reduction in outside fees has not increased the costs of in-house counsel. NCR manages its filed cases with only four in-house lawyers and four paralegals. Several years ago, in a case in which it did not have an arbitration clause, NCR spent hundreds of thousands of dollars defending itself in a conventional lawsuit and nevertheless lost a multimillion-dollar jury verdict. In the past five years, NCR has paid out less in awards and settlements--and in outside and in-house counsel fees for all of its ADR matters--than the outlays for that single case. How ADR Goes Wrong As we've said, to make alternative dispute resolution work, management must adopt the principle wholeheartedly. Consider the following sad but true story of two large electronics manufacturers both, ironically, subscribers to the Center for Public Resources policy statement. About 15 years ago, Company A, which makes computer-support products, licensed Company B to manufacture a new device. The arrangement was a means of expanding the market by offering a second source of the product. The device was wildly successful, but by the mid-1980s, Company A had developed its technology and improved the device, and it refused to let Company B manufacture the new design. Fearing it would lose a lucrative market, Company B threatened a lawsuit, and when the threat had no effect, it reverse engineered the new device and began to manufacture and market its own version. Now it was Company A's turn to threaten a suit. Instead of litigating, however, the companies respected a clause in their contract and headed into arbitration. Under normal circumstances, arbitration might take anywhere from 6 to 12 weeks, but in this case it ballooned into a five-year marathon, with five to six hours of testimony four or five days every single week. While the proceeding followed the customary rules of arbitration--in theory, extremely limited discovery and depositions--the judge in the case skirted convention by subpoenaing evidence, so that much of the time was actually spent in discovery nevertheless. In addition, lawyers on both sides began taking depositions, though they were careful not to use that word. One observer characterized the two sides as being driven by "fierce litigiousness, arrogance, and greed," and charges of attorney misconduct flew back and forth almost daily. Eventually, the judge ruled against Company A, which promptly asked an appeals court to overturn the decision. After that, both companies began to litigate in earnest. They are still fighting today, and the list of suits and countersuits grows longer every year. Company B is estimated to have laid out as much as $25 million a year to pursue its claims. This depressing account graphically illustrates how an alternative method of dispute resolution can go wrong when the parties lack the commitment to make it work. Ingrained attitudes and belligerent corporate cultures worked against an equitable, agreeable outcome. In this case and in others we have seen, the chief obstacles were one or more of the following attitudes. Winning is the only thing that matters. Few senior corporate managers are willing to forgo a chance to win a courtroom triumph. Here's the way a top lawyer at a major company puts it: "CEOs want to be able to take the other guy to the cleaners if they believe they're in the right, and they're going to bet the ranch if they have to." Often the case itself becomes less important than the principle involved. In the struggle between the electronics giants, for instance, the chief legal counsel for Company A declared, "If the other side continues its strategy of copying, I'm going to continue this strategy of suing." Its one thing for the corporate general counsel to argue for arbitration when his or her company is the respondent or, as is often the case, when both parties are culpable to some degree. Under these circumstances, common sense urges negotiation to limit the extent of the claims. But when the company appears to be in the right, when millions in revenues are at stake, and when decision makers ache to go to the mat to prove their point, arguing for arbitration may strike some as foolish, if not downright disloyal. ADR is only one alternative, not the method of choice. Most lawyers--and hence the companies they serve--still view ADR as the alternative rather than the primary or preferred method of settling disputes. Such companies see the procedure as a way of settling peripheral, less important disputes, or, as in the electronics case, they simply abandon it when they fail to get the result they want. In any event, they have not decided to make dispute avoidance and early resolution the prime mission of the legal department. Even in companies where ADR has taken hold, there may be ways around the system. At Motorola, for example, at least ten circumstances can cause a dispute to be classified as an unsuitable candidate for early ADR, including "critical principle," "deterrent strategy," "the only issue is money," and "extremely complex factual issues." ADR isn't really all that different from litigation. Because few companies have made a serious commitment to ADR as a distinct system, and because there are very few rules governing it, the procedure is often allowed to become a litigation look-alike. Whenever that happens, the cost of ADR begins to approach the cost of the litigation that it's supposed to replace. To cut down on attorney time, arbitration permits the parties to stipulate, or agree on, certain facts and virtually eliminate briefs, discovery, and the endless reliance on expert testimony and counter testimony. But the contending parties often waste prodigious quantities of time, money, and energy by reverting almost automatically to the habits of litigation. As happened in the electronics battle, lawyers make repetitious presentations of facts and legal arguments as if they were appearing before a judge rather than an arbitrator. They pursue discovery, file motions, and rely excessively on expert witnesses exactly the way they would in a lawsuit. Outside the courtroom, lawyers grind out publicity favoring their cause. Moreover, arbitrators themselves contribute to the problem by handing down damage awards that are beyond reason and contractual limits. Sometimes, they even award punitive damages. Adding to ADR's reputation as nothing more than litigation-in-disguise is the popularity of court-annexed ADR, which judges in federal jurisdictions often mandate after contestants have already begun to litigate. Not surprisingly, the parties tend to pursue the case as they began it--with a lot of hostility and all the expensive paraphernalia of a lawsuit--despite the judge's admonition to arbitrate. What's more, if either party objects to the arbitration decision, it can take the case back to the judge. Despite the drawbacks--high legal costs, lost time, lack of finality--some 65% of cases facilitated by the American Arbitration Association are court-annexed ADR. Boosting commitment to ADR and avoiding the trap of litigation-in-disguise are both important steps in the effort to replace confrontation with negotiation. The essential third step is to create a systematic process that mandates ADR as the first step in every legal action. Conclusion Alternative dispute resolution is not new in the legal system but it has received a tremendous impetus as a means of dealing with the huge increase in different types of disputes over a range of matters, undreamt of even a few years ago. Much research still has to be done on the effectiveness of these alternatives and on civil procedure generally to find out how successful many of these new solutions to disputes really are. Even though ADR is still to some lawyers and judges a radical idea, most civil proceduralists now recognize that it is wrong to regard formal adjudication as the only or even the norm for dispute resolution. Trying to fit all types of disputes within the confines of the 'ordinary' civil process proved to be a strait-jacket and has been shown to be by no means the most successful means of dealing with many types of actions. Efforts have to be made to divert many types of cases from ordinary litigation and find other cheaper, quicker and more efficient methods of resolving them. As we have seen this has led to a search for less formal alternatives, such as negotiation, mediation and arbitration, for a range of matters. (Michael Zander, 2003) It is concluded that there ought to be a multiplicity of avenues of dispute resolution, hopefully complementing one another, the choice of which avenue to take ideally being in the hands of the parties themselves, and with the added availability of so-called 'exits' by which a party may opt out or change in the course of proceedings if he chooses. The promotion of such a heterogeneous collection of processes is the aim of those interested in reforming civil justice, one of the most urgent tasks facing the legal system today. Reference: Michael Zander, 2003. Cases and Materials on the English Legal System, 9th Edition; Series: Law in Context Read More