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No More Lawyers – Conrad & Scherer

Our Civil Legal System As We Know It Simply Does Not Work, So Let’s Just End It!
In my opinion by Irwin Gilbert, Esq.

That headline may make my colleagues in the legal profession recoil, but no one can dispute that the state of our current legal system is abysmal. It’s broken. We can’t or won’t fix it … so what do we do?

After more than four decades as a trial lawyer, I’ve seen the unbridled emergence of several disturbing dominant features in civil litigation:
Commercial cases today are not determined by who is right, but by who has the most money to keep the process going.

• Many businesses embroiled in litigation choose to cave and settle versus invest in a long and expensive dispute, or they never pursue legitimate claims in the first place.
• In 2005, one of my clients, a very sophisticated Fortune 100 company, carefully analyzed the cost of litigation, including the indirect cost of disruption of their business, and determined that a claim under $150,000 was not worth pursuing. That was in 2005 dollars!
• As lawyers, we have created a monster. It is hubris to think that companies and individuals will not eventually find another way to resolve their disputes, perhaps leaving lawyers at the curb.

The legal system designed by our forefathers was intended to fairly determine who is right and who is wrong and dispense justice accordingly. So, what happened? Over the years, litigation has become purely adversarial for the sake of being adversarial. Lawyers on both sides are rewarded handsomely by keeping the process going as long as possible, by fighting over everything. I have one client that decided to simply walk away from a case where they were 100% in the right and the other party was 100% in the wrong, once their legal fees topped $500,000.

In that case, I repeatedly attempted to get the case to trial or summary disposition. Every attempt was frustrated.

So, now that we all agree we have a problem, what is the solution?

For starters, we should privatize judges, regain our focus on right versus wrong, and simplify the entire process dramatically. In Florida, civil division judges have well over 2,500 pending cases assigned to them. You can’t move a case along if you can’t get time with the Judge.

Judges today are paid with tax dollars, and in most cases, have zero training in the complex commercial topics over which they preside. Our private judges (I’m calling them “Masters”) would be hand-picked as highly experienced experts in their fields. The parties would not need to hire private attorneys at all. The Master would obtain the facts from the respective parties, determine what further evidence was needed to determine liability and damages and proceed on the merits, freed from the clever machinations of lawyers.

In such a private system, all expenses of the Master and experts when needed would be divided equally among the parties. Cases would be resolved at one third of the cost and in one third of the time.

Equally important, the entire process with the Master would be completely confidential.

How Do We Get There?

In place of standard arbitration clauses, companies would insert a clause requiring resolution by a Master participating in this program. Parties could hire lawyers if they want to, but won’t need to. The Master does all of the work with his team. Bypassing nonsense and abusive discovery tactics with a focus on getting to the heart of the matter and doing so fairly.

Is It Constitutional?

The Master Resolution program is substantially similar to conventional binding arbitration programs. The courts have long ago found these alternative dispute resolution programs to be lawful and enforced by the Courts.

Is It Possible?

To turn what may seem like a “tongue in cheek” idea into reality would require bold steps, admittedly. However, this change is possible. Step one would be to attract senior lawyers, in a few “test” specialty areas, such as construction, trade secrets or commercial contracts, who have extensive experience on both the plaintiff and defense sides. These individuals would need to have an intimate knowledge of the law as well as a deep understanding of the specific industry. This list would allow the parties to choose from several experts in their field. The parties would be able to select their choice “Master” and divide the costs evenly. The process would involve no motions, no fights, no “make work” discovery. No one would get to “hide the ball.” No one could run out the clock through clever machinations.

The result? A legal system that works! If you are game to join me in this movement to revamp our legal system, email me at IGilbert@conradscherer.com.