Musings On Relevance And Litigation Expenses

This post was mostly written on November 12, 2015.

TL;DR

One of the most powerful ways to make courts reach reasonable fair decisions quickly and at a relatively modest cost is to narrow the scope of the evidence that substantive law considers to be relevant to enforcing rights and resolving disputes.

Analysis

It is common place to blame lawyers or their clients for the fact that civil litigation is slow and expensive. But, a great deal of the blame really needs to be laid to placed upon the substantive and procedural law involved, and upon the underfunding of the public sector component of the judicial dispute resolution process.

Contrary to popular belief, the law is not simply a set of clear rules that can be called quickly and easily by a judge and all the participants, as players and umpires do in sports.

Often, the substantive law is inherently vague, setting forth standards rather than rules.  And, even when the law is not inherently vague, the proper application of the law to the facts is often ambiguous.

It doesn't help that civil procedure allows for clarification of how the law applies to a particular set of facts, in all but the clearest cases, until after all of the facts have been developed and presented to a tribunal.  Jury instructions, for example, are rarely finalized until all of the evidence in the case has been presented.

The rules of civil procedure generally allow the formal process of investigating the facts, known as "discovery" to extend not only to evidence that is relevant, but also to evidence that is reasonably calculated to lead to relevant evidence, even if it is not itself relevant to the dispute.

At a trial in a court, only relevant evidence is admissible, but the standard for what constitutes relevant evidence is a loose one, subject only to a handful of specific exceptions.

In an arbitration hearing, the standard for what evidence is considered relevant is loose indeed.  The American Arbitration Association rules, as they are usually applied, allow almost any evidence related in any way to the dispute to be considered, even if it does not meet the loose standard of relevance to an element of a legal theory applied in a court setting, on the theory that a legally trained arbitrator will not be swayed by legally irrelevant evidence.

Some of this bias towards loose rules of discovery (some judges sum up this attitude by saying that they are "full discovery" judges),  and loose relevance boundaries on the admissibility of evidence, is driven by underinvestment in judicial resources.

Judicial engagement in a case earlier on in litigation to carefully analyze the legal issues presented and to narrow the scope of discovery and subsequent hearing evidence only to the matters that are really legally relevant is much more time consuming than allowing the parties to exchange information and present evidence at trial with minimal judicial intervention, even if this dramatically increases the cost of the litigation to the parties.

Given the extreme emphasis on the finality of decisions in private civil litigation, and an even greater emphasis on finality in arbitration settings, rational litigants need to prepare for every possible interpretation of the law or determination that facts could be relevant, even if that possibility is fairly remote.  Presentations at trial, and pre-trial discovery and presentations, could be dramatically shorter, if judges and arbitrators made clear at the outset which of many ambiguous interpretations of the law regarding what is relevant were provided.

It is also the case, particularly in a court forum, that it often simply takes a long time for a judge to rule on pending matters particularly at the higher end of the judicial hierarchy in general jurisdiction trial courts and in appellate practice.  This isn't a case of judges being lazy.  It is simply a case of a systemic underinvestment in judges relevant to the benefit which society would receive from having enough judges to produce more prompt rulings and to have a great ability to be involved in a case at its early stages.

In those rare areas where the scope of what is relevant at a particular stage of a case is narrow and well defined, such as in a foreclosure or eviction hearing, or an action to regain possession of tangible personal property, hearings can be quite short, can be held quickly, and can be resolved quickly and inexpensively.

In part, this is also because those decisions are highly structured.  In a foreclosure or eviction hearing, for example, the sole inquiry is usually whether there is a default in payments or in other contractual obligations which justifies the remedy sought, not a determination regarding the exact amount owed, which is deferred to a later date if a breach of the agreement is found to exist.

Similarly, in criminal cases, which are often decided quite swiftly, the sole decision presented to a judge or jury at trial is usually whether a criminal statute has been violated in a single, well defined incident, not the punishment that is appropriate to impose if indeed this is the case.