Washington — Justice in America is becoming a joke for the average person or small company. Rather, it is now the realm of the wealthy. A typical civil case begins with the advance of $5,000 to $10,000 in an upfront retainer for an attorney. The attorney then files either the complaint or an answer to a complaint, after which another $3,000 or so is billed to you the retainer being held in reserve by the attorney.
Then come the ever-annoying depositions, where you and your associates are interrogated for hours. This is part of the so-called discovery process. The other part is called "production of documents," in which attorneys demand to see documents and records. The problem with discovery is that it is allowed to be wide-ranging. The idea is let attorneys cast a wide net, asking questions and looking at documents that may have no bearing on the case. Theoretically, anything unrelated to the case would not then be admissible in court. Reality is otherwise. Whole depositions can be introduced at trial and are then made part of the public record.
Further, the discovery process is so time-consuming and laborious that it is not unreasonable to receive a billing from your attorney for $10,000 to $20,000. And that is just for the first round of depositions that may be held prior to a hearing in court on preliminary motions.
A second round prior to trial can cost even more. So before the trial even begins, legal fees already billed can amount to $13,000 to $50,000 to $150,000 or more much more.
Then comes the trial. Attorneys must prepare extensively for it, and they may engage other attorneys, experts and investigators for this purpose, all of which can amount to another $10,000 to $30,000 and up. The trial itself may last only a few hours, but it could also take a few days. If you lose, you may appeal, starting a another whole round of legal billings. If you win, the loser may appeal, or you may simply have to go through the legal machinations of trying to collect on the judgment.
By the end of the process, years and thousands even hundred of thousands of dollars will have ground you down. In the end, the question remains as to whether the judgment will even be collectible. Will the damage done to you that was the cause of your suit in the first place have been so irreparable that you lost even if you won?
And what if you lose? What about that attorney who all but promised you that you couldn't lose? Of course, such statements are rarely overt. They tend to be more subtle, included in discussions about the weaknesses in your opponent's case. But, as they say in criminal cases, "The attorney doesn't go to jail."
The fact is that our civil justice system is broken. It does not work. It cannot work in its present form, which devours time and money in a ratio well beyond the value of many cases.
The solution can be found in a massive overhaul. First, small claims courts, where individuals represent themselves, should increase the maximum amount of a case to $50,000 or $100,000. Second, discovery should be limited to germane matters. Third, individuals and corporations should be allowed, even encouraged, to represent themselves, an activity that most judges frown upon. Fourth, exorbitant legal fees should be reduced by judges, an issue that legislatures could actually codify.
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