The Cost of Process

Our civil justice system comes at a very high cost. Most of us lawyers and judges don't think much about it. It's the way things are; like the ocean in which fish swim.

The system is so complicated that litigants need counsel, but few can afford that. For many routine tort and contract cases where there's no attorney fees clause, the courts are closed. True, if the estimated recovery is high enough, some plaintiffs might find a lawyer willing to take a cut of the recovery; defendants without insurance are out of luck. I have dubbed these "Green Line" (green for money) cases: routine tort and contract cases, with something like up to a hundred thousand dollars (or more in some urban counties) at stake, but without a fees clause. Who can afford these?

It's a grim picture. For 2019, San Francisco median household income was $112,000. After rent and other necessities, there's little left over for legal fees. Many years ago as a well-paid, mid-level partner at a large law firm, I recall sending out bills to clients realizing I could not afford myself. A survey by the State Bar of California shows Californians received inadequate or no legal help at all for 85% of their legal problems.

The barriers to access are substantially higher for communities of color. For example, the Black community suffers from poverty at three times the average rate.

The fact that courts are inaccessible to a very large percentage of the population, with a deeply disparate impact on certain groups, destroys efforts to (1) make the legal system more transparent to the public we say we are serving, (2) demonstrate our accountability, and (3) have the public invested in, and trust, the system.

This is a crisis, and it has not been meaningfully addressed to date. For literally generations we have tried remedies such as securing more pro bono help from lawyers, spending more on Civil Gideon programs (paying attorney fees such as in family court), providing more interpreters, improving access centers to help pro pers with forms and other tasks; and so on. All are laudable and should be pursued. But two basic truths have not altered: the system is far too complicated for pro pers, and few can afford counsel.

In preparation for the last San Francisco bench-bar conference, I assembled notes on this problem ("The Law, Otherwise: Notes on Access to Justice"). I proposed looking at basic civil litigation procedures -- at the infinitude of stunningly complicated processes we all take for granted as the proper way to resolve civil disputes. I urged us to turn the spotlight on what we, judges and lawyers, do; and consider if we could make deep changes.

Most of civil procedure -- and virtually all of its complexity -- is derived from a noble and liberal wish: to ensure procedural fairness. But the sum of this fairness, embodied in our rules of procedure, impedes access to justice. Every rule of fairness has a cost.

To illustrate, I'll take at random one basic assumption: appellate review. (I could have used -- and in my notes, I do use -- other examples, such as juries, discovery, damages, sanctions, and so on.)

The benefits of appellate review are understood: correction of error, review by three new judges with the leisure and resources trial judges do not have, the perception of equal application of the law across many cases and so the reduction of arbitrary decision-making.

But complexity, and so costs, are added to the trial proceedings. Careful lawyers are aware of the difference between de novo and other sorts of review and pitch their arguments, and make their records, accordingly; indeed the record and its court reporter fees are a serious cost. Care must be taken to make a record on objections; issues of waiver and forfeiture on appeal require attention; the time incurred on appeal, together with the potential expenses and delays of a remand, also are costly.

Justice James Richman has noted this in the anti-SLAPP context -- a device meant to save costs and nip litigation in the bud, which due to the right of appeal often has the opposite effect. Oakland Bulk and Oversized Terminal, LLC v. City of Oakland, 54 Cal. App. 5th 738, 760 (2020); Grewal v. Jammu, 191 Cal. App. 4th 977 (2011).

There are rules about the differences between writs and appeals, about settled statements, statements of decision, the jurisdictional time requirements for a notice of appeal, and what is, and is not, embraced by a notice. All these things are essential issues for the trial litigant cognizant of the right to an appeal. It's so complicated we have appellate specialists, and guides devoted, solely, to appellate practice.

There's also something else: The benefit of the law's development, enabled by appellate review, directly contributes to the cost of complexity. With each new appellate take on the law, and with each new fact pattern in each published decision, the law ramifies, enabling ever-new grounds for analogies to, and for distinguishing, precedent.

Every published appellate opinion is a double-edged sword.

In this way, every trial court litigant pays an appellate "tax," a cost in contemplation of appeal, mostly paid whether the appeal is eventually taken or not.

We have decided not to impose these costs in Small Claims, because we know despite the benefits of true appellate review, costs would wipe out the benefits. (A second trial with a different judge may be available, from which no appeal may be taken.) But how do appellate costs impact "Green Line" cases -- routine tort and contract cases? To what extent are we blocking our population from the courts? As I intimate above, we could -- and should -- subject most of our routine, accepted procedures, including the right of appeal, to this sort of scrutiny. We should consider costs, overt and covert, when we enact, apply, and construe law.

There is an exquisite, excruciating, poem by Jane Kenyon, "Otherwise," in a collection of the same name (1996). There, she recalls how the deepest and most basic assumptions of our lives -- could be otherwise. I borrowed this for my notes on access to justice to make the point that our cherished assumptions about the law, so basic we no longer see them for the contingent rules they are, could be otherwise. If we mean to address access to justice, then some of these procedures must be otherwise. The problem is systemic. Solutions, if we have them, will be as well. 