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Saturday, July 15, 2000

What happened
to justice for
the little guy?

The average American
can no longer afford
his day in court

By Richard Turbin
Special to the Star-Bulletin

APRIL marked the 25th anniversary of the founding of the Law Offices of Richard Turbin. The occasion was not celebrated by dancing in the street, and no one, not even myself, marked the date in a calendar. But the silver anniversary of my small, five-attorney plaintiffs' personal-injury law practice in Honolulu warrants a reflection on how the justice system has changed during the last 25 years, from the perspective of this wizened veteran of the legal wars.

Looking past all the techno-wonder gizmos that now help us and hex us -- the information explosion, the Internet, laptops, CD-ROMs, and voice mail -- one finds a justice system that is not very friendly to the "little man and woman" of America. Stated bluntly, average Americans have been priced out of our courts despite the fact that their tax dollars pay for judges' salaries, courthouse upkeep, fancy computers and other apparatuses that keep the system humming. How so, you might ask. Let me try to answer that question from the vantage point of a plaintiffs' personal-injury lawyer who has made his living attempting to access the system for lower- and middle-class Americans.

Then and now

Twenty-five years ago, I represented a prison guard who was rear-ended in an automobile accident and suffered back injuries. I conducted the three-day jury trial myself, and the costs were approximately $2,500. The jury verdict was modest, about $12,000, but the plaintiff had his day in court and received some compensation for his injury. We were not vexed with an insurance medical examination, there were only two depositions taken and two sets of interrogatories propounded, and no experts were called but the treating physician. Both sides tried their cases skillfully, and the advocacy was spirited and colorful. At the time I did not know that these would be the good old days.

Richard Turbin
HONOLULU ATTORNEY
"Let's reopen our courthouse
to the average American."

By contrast, in the late 1990s, I represented a client with similar injuries; however, the litigation costs amounted to more than $15,000, and the trial took almost three weeks! This case, also a simple rear-end collision, featured a mandatory, nonbinding arbitration followed by a jury trial that awarded a verdict of $16,000. The defense conducted an insurance medical examination, called a biomechanical expert to testify, took countless depositions, and cut down a forest in order to "paper us to death." More than 10 pre-trial motions were filed!

Was this an aberration? No, not at all; too often, this is the way the game is played today.

The price of justice

Too often the adversary system is not a search for truth, fairness and justice but a match of who can pay for the best experts and the most high-priced attorneys. Often the costs and fees exceed the amount in controversy. How much justice one can afford is a serious issue in every type of case: collections, criminal, divorce -- you name it.

The catastrophically injured can find lawyers willing to represent them, but the average American who slips and falls in a supermarket and breaks a leg, or who burns a hand because of a defectively designed kitchen appliance, is frequently checkmated from using our legal system. Many plaintiffs' lawyers reject these cases due to the fact that the litigation costs do not justify the recovery.

In discussion with opposing counsel and judges about how litigation costs subvert justice, the answer has generally been, "But due process requires the ordering of an insurance medical examination," or "Due process permits the taking of the deposition of the physical therapist, chiropractor, massage therapist, acupuncturist, psychologist, spouse or girlfriend of the plaintiff."

Although the goal of due process is to give everyone a fair shake in the legal system, too often it locks poor and middle-class Americans out of the courthouse. Many who practice in this area know that insurance medical exams are biased in favor of the party paying for the examination. In small-injury cases, exams and biomechanical engineers are overkill. Frequently the court-ordered alternative dispute resolution is used for discovery or other strategic purposes and not to make a sincere effort to resolve the case.

Streamlining due process

My modest proposal is that the courthouse be given back to the average American. All attorneys have the obligation to aid in streamlining the process. Judges, legislators, law school professors and others must commit to finding creative ways to resolve controversies fairly and efficaciously.

Attorneys must find alternatives to the expensive and often questionable value of insurance and medical examinations, taking unnecessary depositions, and calling unnecessary expert witnesses. Concerted action must be taken to convince judges that justice is not served by abusing due process for the improper purpose of driving up litigation costs.

Some controls have to be placed on our discovery system for the smaller case. Discovery costs should be in reasonable proportion to the value of the case. All parties should promote a human, user-friendly perspective and practice civility and congeniality. Parties can cooperate and agree to limit discovery, depositions, expert witnesses and overall litigation costs.

Both sides can also prevail upon the courts or appointed "discovery masters" to limit unnecessary pleadings, depositions and pre-trial motions -- none of which should interfere with creative advocacy within the confines of a reasonable budget. The present system too often obscures advocacy in a maze of meaningless paperwork and discovery.

Finally, I urge all of my friends and colleagues who are judges and lawyers working in the Hawaii legal system to find solutions to solve the problem. Let's reopen our courthouse to the average American. If the key to the justice system requires extraordinary funds, we have failed our profession. On the 50th anniversary of the founding of the Law Offices of Richard Turbin, I want to look back and glory over how much the system has improved.