A Couple Of Musing On Uncertainty Civil Litigation

* One of the primary sources of expense in civil litigation is disclosure and discovery practice in which, prior to a trial, litigants are required to produce documents to each other, to answer each other's questions, and to present sworn recorded testimony outside the presence of a judge in what is called a deposition.

A major driver of this cost is uncertainty over what factual issues are in dispute and are relevant to the claims and defenses asserted in the action.  As a result, in practice, discovery is permitted on almost all factual issues related in any way to the case.

Much of this uncertainty could be resolved if a judge intervened early in the case to adjudicate which factual issues are really relevant under a correct interpretation of the law (which in practice tends to be profoundly uncertain in all but the simplest of cases) and to force parties to be reasonable in their claims that relevant factual issues really are disputed in ways that are material to the outcome of the case.

And, of course, it discovery were actually limited to issues that have been authoritatively determined to be legally relevant and to be genuinely disputed, there would be vastly less discovery and civil litigation would be profoundly less expensive.

One of the main virtues of the European civil law system over the American common law system of civil litigation is that the European system does a much better job of this task.  The American system with its often illusory promise of a jury trial or jury-trial equivalent bench trial at the conclusion of a case, in contrast, is very adverse doctrinally to addressing any issues of this kind before dealing with all of them.

* The "black letter law" as enunciated by statutes, regulations, court rules and appellate case law is highly relevant and can often be applied to particular facts by judges in a manner that would be almost unanimous despite the fact that the judges differ greatly in their judicial philosophies and political inclinations.  

But, it is also not at all uncommon for judges to make rulings that depart from that black letter law, either by clearly misapplying it to the facts or by accepting clearly erroneous interpretations of it. This happens perhaps 40%-45% or more of the time in any case that isn't totally straight forward (at least on the civil side, I have no practical experience as a criminal law attorney), and perhaps 10%-20% of the time, these errors are outcome determinative.

(Juries also make mistakes in applying the law with which they are instructed that creates uncertainty, but the kinds of mistakes that juries make have causes and solutions that differ profoundly from those made by judges.  The best available evidence suggests that error rates in criminal cases that go to trial on the issue of guilt or innocent are about 10%, but the decision facing juries in criminal cases are usually much less complex than in civil cases, so the error rate in civil cases is probably higher.)

Certainly, this not uncommon disconnect between the black letter law as applied to the facts and actual outcomes is the reason that going to trial is routinely described as "rolling the dice."

Yet, the practical reality is that it is profoundly more expensive and time consuming to win on appeal (which itself has a similar level of error) and often it is simply impossible to obtain redress from an erroneous trial court decision.  

For example. it is very rare that a tenant who loses an eviction action, or a debtor who loses a collection action, will be able to obtain any meaningful redress by appealing a decision, not least because staying a trial court decision requires that the tenant or debtor post a bond equal to the amount of the judgment entered (generally including the other side's attorneys fees).

The body of legal theory that examines systematic patterns in the way that judges deviate from the black letter law is called "legal realism."  And, while legal realism was vibrant in its heyday in an era when empty legal formalism had gotten out of control, this kind of legal scholarship, particularly when informed by empirical data, both receives too little attention among legal scholars and receives too little attention in the law school curriculum.

This is a shame, because truly effective real world lawyers need to not only know the "black letter law" but also know when and why and in what manner judges are likely to disregard or twist the black letter law when it is applied to particular facts.  

Too often, legal realist scholarship gets so hung up on establishing at all that judges do in fact frequently fail to honor the black letter law, that they never manage to take the next step of synthesizing that reality into theories that explain when, why and how this is likely to happen, so that lawyers can incorporate this deeper empirical understanding of the relationship between the black letter law and the law as it is actually applied, into their practice.