Why Are Fewer Cases Reaching Court?

Anton Flig Thursday, 10 November 2016

Why Are Fewer Cases Reaching Court?

Ordinary citizens, Jed S. Rakoff says in new article, have been increasingly denied access to the nation’s courts. Four of his eight reasons are cost related. The others he blames on Congress, corporations, and the courts themselves.

 

Radoff is a U.S. District Judge for the Southern District of New York. 

 

Up to 1970, he notes, most individuals involved in state-court suits were represented by attorneys; now, up to two-thirds of those in such suits represent themselves, without counsel, and that number reaches 90 percent in some states.  But individuals without counsel “lose cases at a considerably higher rate.”

 

From 1985 to 2012 what associate lawyers billed rose from $79 per hour to $370. Partners charged fees that rose from $112 per hour to $536 over the same period.

 

In “the overwhelming majority of cases,” he wrote, individuals simply settle “before the merits of their cases ever get heard.” In the late 1930s, about 20 percent of federal civil cases went to trial; by 2015 only 1.1 percent did. The percentage is even lower in state court. 

 

Many corporations avoid court by contractually forcing employee and customers cases into arbitration and precluding class-action suits. Radon cites AT&T Mobility LLC v. Concepcion, a 2011 5-4 Supreme Court decision, as a prime cause. When federal and state agencies are involved, cases increasingly end up in administrative review, under judges beholden to these very agencies. Congressional lawmaking is behind this trend. 

 

In federal criminal cases, the decisions are made “by the prosecutors, not the courts,” he wrote. “Over 97 percent” of those charged agree to a plea bargain; the percentage is only slightly lower in state cases. Congress and state legislators have imposed so many mandatory and, in Rakoff’s judgment, “draconian” penalties it is far too risky for a criminal defendant, “even an innocent one,” to submit to trial.

 

Solutions to reverse these trends proposed so far — a guarantee of counsel for financially strapped civil litigants, federally funded legal insurance — face daunting political hurdles, on top of the ingrained habit of state and federal representatives to minimize spending on the court system.

 

Source: Jed S. Rakoff, “Why You Won’t Get Your Day in Court,” The New York Review of Books,” November 24, 2016.

Ordinary citizens, Jed S. Rakoff says in new article, have been increasingly denied access to the nation’s courts. Four of his eight reasons are cost related. The others he blames on Congress, corporations, and the courts themselves.

 

Radoff is a U.S. District Judge for the Southern District of New York. 

 

Up to 1970, he notes, most individuals involved in state-court suits were represented by attorneys; now, up to two-thirds of those in such suits represent themselves, without counsel, and that number reaches 90 percent in some states.  But individuals without counsel “lose cases at a considerably higher rate.”

 

From 1985 to 2012 what associate lawyers billed rose from $79 per hour to $370. Partners charged fees that rose from $112 per hour to $536 over the same period.

 

In “the overwhelming majority of cases,” he wrote, individuals simply settle “before the merits of their cases ever get heard.” In the late 1930s, about 20 percent of federal civil cases went to trial; by 2015 only 1.1 percent did. The percentage is even lower in state court. 

 

Many corporations avoid court by contractually forcing employee and customers cases into arbitration and precluding class-action suits. Radon cites AT&T Mobility LLC v. Concepcion, a 2011 5-4 Supreme Court decision, as a prime cause. When federal and state agencies are involved, cases increasingly end up in administrative review, under judges beholden to these very agencies. Congressional lawmaking is behind this trend. 

 

In federal criminal cases, the decisions are made “by the prosecutors, not the courts,” he wrote. “Over 97 percent” of those charged agree to a plea bargain; the percentage is only slightly lower in state cases. Congress and state legislators have imposed so many mandatory and, in Rakoff’s judgment, “draconian” penalties it is far too risky for a criminal defendant, “even an innocent one,” to submit to trial.

 

Solutions to reverse these trends proposed so far — a guarantee of counsel for financially strapped civil litigants, federally funded legal insurance — face daunting political hurdles, on top of the ingrained habit of state and federal representatives to minimize spending on the court system.

 

Source: Jed S. Rakoff, “Why You Won’t Get Your Day in Court,” The New York Review of Books,” November 24, 2016.

 

 

 


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