Why Bother?

On March 1, 2019, significantly revised rules of civil procedure took effect in Nevada’s state courts.[1]  Significant effort appears to have gone into the rules, with the idea at least in part to promote more efficient and predictable “justice.”[2]   To me, the civil procedure system’s very purpose is to create a methodical and predictable system to resolve disputes.  Predictability allows the parties to assess with greater accuracy the possible outcomes of their dispute and choose their own outcome rather than having a jury pick it for them.

I attended a public lunch after the rule changes were implemented and spoke with a sitting state district court judge about them.  I mentioned that if the court system wants to reduce the cycle time for civil cases, simply enforcing the rules already on the books would go a long ways.  Let the system function as it is designed and let parties suffer the consequences when they do not do what is required of them.  If a party screws themselves, it is not the court’s job to “fix” the problem.  I listed a few examples where that did not happen.[3]

The judge responded that’s a nice theory, but if I did I’d be reversed all the time.  I was dismayed because, to me, that comment meant enforcing the rules the courts themselves designed to promote the fair, orderly, and efficient administration of “justice” is reversible error.  The system the courts designed gets in the way of “justice.”  Why bother creating the system if the courts lack the fortitude to let the system function?

The comment also disheartened me for other reasons.  In a healthy functioning legal services marketplace, shoddy lawyers provide poor services, get burned, their clients suffer, and the lawyers are pushed to the fringes of the marketplace, if not out of it.  However, if the courts are attempting to protect clients from shoddy lawyers, then by “fixing” the problem the courts actually enable the shoddy lawyer.  Like protecting an addict, the court allows the shoddy lawyer to avoid the consequences of being shoddy and skate by.  This allows the shoddy lawyer to remain in the marketplace and continue providing shoddy legal services. 

I believe this in turn disincentivizes good lawyers, because why bother?  The good lawyer could comprehensively outwork and outlawyer the opposing counsel to posture his client for a favorable result, only to have the court “fix the problem” and negate the advantage.

Chief Justice Roberts’ once described a judge’s role as calling balls and strikes.[4]  If so, then let the players play the game and call balls and strikes.  Don’t “fix” pitches that should have been balls or should have been strikes.  Don’t “fix” an out where the runner made a mistake by trying to stretch a single to a double.  Don’t “fix” a fielding error when the third-baseman’s throw to first sails wildly into the dugout.  Let the players play the game within the system that you designed.  Let them reap the rewards or suffer the consequences of their choices within that system.  Otherwise, why bother?

[1] Yes, I know I haven’t talked about them on this blog yet.

[2] Whatever that term means.

[3] Many of which are the subject of prior posts.

[4] That description is comically oversimplified.