The Limits of Litigation

This week's readings in my Culture and Law seminar focus on the shortcomings of law's standardization, ritualization, and creation of disputes. The articles invite us to reflect upon why some people deem legal redress inadequate or even inappropriate, and how the legal system should respond to these concerns.

A natural question is whether civil litigation should be more accessible, and, if so, how this can be accomplished without undermining its goals. Society enshrines litigation as the preeminent method of dispute resolution, but it is only realistically contemplated by a narrow set of people with a narrow set of disputes. Many people find it too daunting, too onerous, and too formal. (For every example of pathological litigiousness, there are surely hundreds of aggrieved individuals who found the barriers to entry to be too high.) But these reactions are, to a large extent, necessary byproducts of litigation's extensive procedural requirements; litigation is a mechanism designed to deal with the most significant bilateral conflicts and as such must go to great lengths to achieve accuracy, fairness, the appearance of propriety, and other values. In short, the rules of litigation must presume that there is a lot at stake. Society's recent response to the inaccessibility of litigation has been to provide an abundance of alternative means of dispute resolution, both inside (e.g., small claims court) and outside (e.g., arbitration) of the judicial system, as opposed to streamlining the process or reducing its costs. This strikes me as the appropriate response. I don't know of any major procedural reforms along the lines of notice pleading that would uncontroversially open the courtroom door to more plaintiffs. (As far as I know, the Federal Rules of Civil Procedure and the like are quite effective and are unhindered by political concerns or undue formalism.) In my view, therefore, significantly improving the accessibility of the civil justice system would require providing litigants with substantial financial assistance (e.g., by capping litigation expenditures or providing court-appointed counsel). I don't see why this would be preferable to the use of cheaper, less involved methods of dispute resolution. Is there anything wrong with full-fledged civil litigation being reserved for cases in which both parties expect to win big? What matters is that people recognize when they have been illegally injured and know that they have a feasible means of redress. This is consistent with William L. F. Felstiner, Richard L. Abel, and Austin Sarat's concern that "the study of the emergence and transformation of disputes may lead to the judgment that too little conflict surfaces in our society, that too few wrongs are perceived, pursued, and remedied."

This leads to the question of what should be done to facilitate the redress of relatively minor legal grievances. How should alternative dispute resolution mechanisms be designed? To what extent should they be promoted? In answering these questions, it's useful to consider what dissuades people from litigation aside from its costs. Austin Sarat's analysis of The Sweet Hereafter illustrates that litigation is an inherently adversarial process, both between and within each side of the "v." Indeed, the very definition of a side, as in a class action, is a process fraught with conflict. Even a team of one lawyer and one client must agree on a single narrative and strategy; as the parties multiply, so do the potential disagreements. A central difficulty is the disparity between the lawyer's and the layperson's conception of dispute resolution. Inexperienced litigants have to come to grips with counterintuitive aspects of litigation that lawyers take for granted, such as formality (e.g., rules of evidence), artificiality (e.g., witness coaching), and extensiveness (e.g., discovery). Ideally one's lawyer should counsel her about unrealistic expectations, but some lawyers are more concerned about retaining clients, and some clients are obsessed with vindication. Regarding the relationship between the opposing sides, Sarat makes it clear that civil litigation, like its criminal counterpart, entails one party blaming the other. I'm sure that even in cases of strict liability, many people view the defendant as having done something immoral. After all, it's always in a party's interests to demonize its opponent and glorify itself if it can get away with it. Understandably, many people don't want to partake in such a process, especially, as in The Sweet Hereafter, when the alleged wrongdoer is remote and any amount of damages would be fundamentally inadequate. Under such circumstances, all that a trial would do for some victims' families is keep their wounds open. This brief discussion suggests some dimensions along which it may be important to distinguish alternative dispute resolution proceedings from litigation. Such proceedings should generally be less formal, less ritualized, more open to individuals' natural narratives, and more flexible about assigning fault and remedies. In sum, what works for litigants often does not work for aggrieved parties who are turned off or intimidated by litigation's ceremony, stiffness, combativeness, and structure.

Overall, it's important to investigate what causes people to have a lack of faith in litigation. We can then ask whether the aspects of litigation that are to blame are worth it, and whether they should be maintained in alternative proceedings intended to resolve different types of disputes among different types of disputants.