From: GBurch1@aol.com
Date: Sun Aug 11 1996 - 15:03:33 MDT
In a message dated 96-08-11 16:09:28 EDT, Peter McCluskey writes:
> I see little evidence that a significant fraction of the current rules are
> intended to speed up trials or are effective at doing so.
> Complex rules are normally less just than simple rules, because those
> special interests who can afford to understand complex rules will be
> the only ones able to write the complex rules, whereas the average person
> can choose among simple rules. I don't think it is an accident that those
> who understand and influence the complex rules are also the ones to whom
> power is being shifted by the rules.
I don't disagree. First, note that I wrote that legal "structures" regarding
evidence are complex, not the rules themselves. In fact, most evidence rules
themselves can be stated in fairly simple terms. By and large, it is the
interaction of the rules with each other and with other elements of the legal
"system" that creates complex evidence "structures."
In fact, a pattern of "complexification" occurs over time in any common law
(or legislative) structure. A simple rule is annunciated to deal with a
specific case. Application of that rule conflicts with the application of
some other rule in another case. A "meta-rule" (usually made with reference
to some third rule) is developed to resolve the conflict. Contradictions in
application of the meta-rule then spawn yet further "meta-rules" in
subsequent cases. Programmers and other system designers will recognize this
pattern.
Eventually, once sufficient contradiction and "overcomplexification" occurs,
someone develops a whole new analytical framework that throws out much of the
previous rule-structure in favor of a new, simpler rule structure. A good
example is the way in which the drafters of the Uniform Commercial Code threw
out the absurd complexity that had developed in the contract law of "offer
and acceptance" in favor of a completely new and simpler scheme (fresh on my
mind from a case I'm currently working on).
Of course, throwing out old legal structures in favor of new ones has a price
in terms of lost precedential authority and a lack of predictive certainty
with reference to the new rules. Accordingly, good jurists don't take the
"new paradigm" route of simplification often or apply it to large parts of a
legal system at once. Thus, at any one time some areas of the law will be
relatively "simple" (having had the thick undergrowth of "meta-rules"
recently cleared out) and others will be "complex" (requiring carefully
picking one's way through the vines ...).
And thus my comment about unavoidable complexity ...
> A simple rule that would be more effective at avoiding absurd delays
> would be to have the loser pay the costs of the winning side and of the
> court system. If that isn't enough, we could add a time limit that keeps
> the trial time from exceeding a specified fraction of the prison time at
> risk or the trial costs from exceeding a specified fraction of the money
> at stake.
Both suggestions have merit. FYI, your first suggestion is known in the U.S.
as "the English Rule", for obvious reasons. In fact, it does have the result
of discouraging litigation in the UK. Many folks in the UK are trying to
change the rule because of perceived inequities for small claimants. In the
U.S., the idea tends to be favored by "big business", since they already
often pay the winner's costs when they lose through contingency fees and the
tendency of juries to make large awards against their interests
"overcompensating" those who prevail against them, or so they say.
I've never encountered your second suggestion before. Obviously the
correlation between trial or other "process" time and amount in controversy
would have to be other than linear. Beyond that observation, I think it is
something well worth exploring.
Greg Burch <GBurch1@aol.com> <burchg@liddellsapp.com>
http://users.aol.com/gburch1/ or http://members.aol.com/gburch1/
"Lawyer - One who protects us from robbers by taking away the
temptation."
-- H.L. Mencken
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