Underfunded Courts - The Greatest Challenge

Friday, February 1, 2008 - 00:00

Our coverage this month of judicial independence is illustrative of what we do best and most enjoy doing. It alerts corporate counsel to what may well be the single most important issue for them - the need to bolster judicial independence.

John H. Martin became president of DRI on October 13, 2007 with a goal of vigorously moving forward with implementing the recommendations of "Without Fear or Favor," the Report of DRI's Judicial Task Force. The Task Force Report looked at trends that were undermining the independence of the judiciary and concluded that these included inadequate judicial salaries, inadequate court funding, lax court security, unjustified attacks on the judiciary, large campaign contributions and too little focus on merit in the selection of judges.

John has pointed out in our pages that DRI's 22,500 defense counsel members are constantly in court. He went on to say that defense counsel are concerned about systemic issues that affect the cost and outcomes of cases. He commented that this is illustrated by the active involvement of the leadership of DRI and the other defense counsel organizations in the civil justice reform efforts of LCJ and in efforts to educate judges.

As John notes, inadequate judicial salaries have had a significant impact on judicial independence, because if judges are inadequately compensated, the judiciary is unlikely to attract enough quality candidates with the experience and other attributes required to be truly independent. Not only is compensation insufficient to attract and retain the most qualified individuals from private practice, but the problem is compounded by the fact that court systems do not have sufficient funding to attract the numbers of new judges needed to reduce crowded dockets. Let me outline what is in this issue.

First, we highlight what is possible by presenting three model court systems. The interview of Chief Justice Shepard on the front cover discusses how the Indiana court system moved from the basement to the top tier. In this month's Special Section on Judicial Independence, Chief Justice Steele of Delaware and former Lord Chancellor of the UK, Lord Falconer, discuss the characteristics of what are recognized as the best court systems.

One of our legal service provider supporters, eLawForum, presents mind-boggling statistics on page 28 to the effect that the total cost of litigation for the Fortune 500 companies is estimated to be a third of their after-tax profits. Most senior managers and general counsel are not aware of this number because the cost of judgments and settlements is not part of the legal department budget. The effect of the uncertainties inherent in our underfunded court system are illustrated by eLawForum's estimate that 97 percent of cases are settled before trial.

The four defense counsel who contributed to the Special Section concurred with the need for adequate judicial compensation. The three with whom the question was raised agreed that underfunding of the courts and the consequent clogging of dockets added additional expense by reason of delay. They also mentioned that crowded dockets contributed to the uncertainty of the outcome because issues that should have received the judge's attention were simply passed on to the jury. Overworked judges just could not take the time to review motions for summary judgment, to apply Daubert- type principles to expert witnesses and to deal with the complexities of e-discovery.

Two heads of litigation in corporate legal departments express similar concerns about the uncertainties created by underfunded courts and how those uncertainties contribute to the cost of litigation and both voiced the need for corporate counsel to join the fight for adequate funding of our courts.

In his interview Taysen Van Itallie, Head of Global Litigation for Johnson & Johnson, states, "It is the fundamental responsibility of corporate counsel in particular to get engaged in civil justice reform issues, which are vital to preserving and enhancing the delivery of high-quality, neutral and fair justice."

PD Villarreal, Head of Litigation at Schering-Plough Corporation, said, "If there were a legislative initiative geared specifically toward addressing the kinds of issues we discussed in this interview, I believe that it would get broad-based corporate support. I know that my peers in other companies feel as I do about the current condition of the courts and the consequences. I don't think it would be a hard sell - it would be a pretty easy sell."

It seems clear that corporate counsel have the will to join the battle. Judges need no longer suffer from not having political clout if corporations and defense counsel join hands in support.

Al Driver