Today’s Take: Understanding the Civil Judicial System
While the objective of the criminal court system is to serve and achieve justice, the objective of the civil court system is not. Instead, it is to achieve closure. A criminal case seeks to determine whether the defendant has violated the rules set by society and, if so, to punish him or her accordingly. On the other hand, a civil case seeks to resolve a dispute between parties when the parties have been unable to resolve it themselves. The greater interest of society is involved only incidentally, if at all.
Just consider a jury trial. Twelve (six in federal court) people are sitting in a box. They weren’t there when any of the events took place, and they don’t know any of the parties. They spend days or weeks listening to testimony that is difficult to follow except by “sound bites”. They are shown either a few pieces of paper, or so many that when they get back into the jury room, they won’t be able, even if they are willing, to wade through them all. They’ll hear lawyers making speeches, and they’ll listen to a judge spending 45 minutes or more monotonously reading them instructions that only some of them will really understand. Out of all this, they’ll try their level best to figure out who should win, who should lose, and how much, if anything, someone should get. In this setting, “truth” is subjective, and “justice” is a misplaced concept.
Too cynical, you say? Not really. Life has become much more complicated these days, and so have the problems which find their way into the courtroom, particularly in the business and commercial context. Just as life and its problems were infinitely more complex for our parents and grandparents than they were for the cave man, they are infinitely more complex for us today, and the court system has been unable, and cannot reasonably be expected, to keep pace.
The takeaway from this is, of course, not earth-shattering: trials are largely unpredictable, whether in front of a jury or a massively overworked judge. That is why in the end, most cases settle; a settlement at least gives the clients some control over the outcome, allows them to manage their risk, and serves the civil system’s purpose of reaching closure. But many clients do not realize this until very late in the game, at which point they wonder why they spent so much money on their lawyers to get to that point. They would have reached closure earlier and moved on, with more money in their pockets, if they had only realized the true objective of the civil justice system at the outset.
If you, the reader, are a prospective client, be aware of this fundamental truth and let it guide you throughout your litigation endeavors. You still may have good reasons for taking the case to trial, but it won’t be because “I want justice” or because “I only have one story to tell and it’s the truth.” If you’re a lawyer, I believe that you will enjoy better relationships with clients—including getting paid by them—if they have this understanding of the civil judicial system. Otherwise, both of you are at risk of mismatched expectations or poor decision-making.
Allan Cooper, Head of ECJ’s Litigation Department
Today’s Taste:
After a full day of trial—watching lawyers trying to cut witnesses to shreds—only a robust red will do. From my partner Howard Camhi: Try “The Prisoner” by Orin Swift Winery. This blend of mostly Zinfandel, Cabernet Sauvignon and Syrah, with some blending grapes thrown in, is deep red in color, with mostly black and red fruits. Definitely not a shy or unassuming wine, it is readily available around town for about $38 per bottle.
On Writs and Wine is the blog of ECJ’s Litigation Department, featuring our takes on a variety of litigation-related issues, plus a wine recommendation for your palate’s delight. Your feedback—on both the takes and the wine—is much appreciated. Enjoy!