Vol. 27, No. 11
CBA President's Message to Members
Are We Losing Our Way?
by Ben S. Aisenberg
When I was at the American Bar Association midsummer meeting in Toronto, Justice Rosalie Silberman Abella of the Ontario Court of Appeals made the following observation:
We have moved from being a society governed by the rule of law to being a society governed by the law of rules. We have become so completely seduced by the notion, borrowed from criminal law, that process insures justice, that we have come to believe that process is justice.
This statement struck a receptive chord. I have expressed this same sentiment, although not nearly as articulately, in recent years. Have we lost sight of the end product of our justice system? Are we seeing the trees and not the forest?
Examples of the Problem
In the early 1980s, the federal courts decided to put some teeth into Rule 11. In 1984, CRS § 13-17-101 et seq. (the frivolous litigation statute) was adopted by the Colorado legislature. At that time, I was active in the Colorado Trial Lawyers Association and supported the legislation. Attorneys' fees or sanctions should be imposed for a truly frivolous lawsuit or frivolous defense inasmuch as they are counterproductive to the judicial process.
Over the years my views have changed dramatically. I now believe that Rule 11 and CRS § 13-17-101 have changed the practice of law to such an extent that, rather than being a solution, they have become a part of the problem. Both are being misused. We are not just trying lawsuits anymore, we are, in the guise of zealous advocacy, attempting to set up and club opposing counsel with the threat of sanctions. Overly aggressive lawyering is rewarded. The process has become, in many instances, dehumanizing. I hold the opinion that Rule 11 and CRS § 13-17-101 undermine the attorney/client relationship and destroy the spirit of cooperation between lawyers.
I, like most attorneys, am somewhat sanctimonious when I file a pleading. To receive a response that contains the boilerplate assertion that the pleading is frivolous and violates Rule 11 is offensive to me. This is especially true in that a request for attorneys' fees for violation of Rule 11 or § 13-17-101 need not be set forth in the original response; it may be asserted at any appropriate time in the proceedings. When it is contained in an Answer, does counsel have the ethical obligation to inform the client that if a proceeding is held in which sanctions are an issue, that attorney may be permitted to violate the attorney/client privilege to avoid the sanctions? Does this not have a chilling effect on the attorney/client relationship?
Further, my level of tolerance for opposing counsel is somewhat less than it should be when I am accused of filing a frivolous pleading. In that regard, I might mention my practice, one that is not unique to me, of calling opposing counsel who I may not know and suggesting that we may be getting involved in protracted litigation and offering to go to lunch, not to talk about the case, but just to get to know each other. Statistics have shown that early interaction between counsel in a non-adversarial setting leads to earlier and better settlements and less acrimonious litigation.
A survey is under way by the courts, the Colorado Bar Association Litigation Section, the Trial Lawyers' Association and the Defense Lawyers' Association to reexamine Rules 16 and 26. As with Rule 11 and CRS § 13-17-101, from a conceptual standpoint, the purpose of Rules 16 and 26 is commendable. However, the practical application of the rules may not have lived up to their intended purpose. For example, the Rules mandate early intervention by the courts. Many times this does not occur. Lately, as a court-appointed special master, I have seen numerous discovery disputes over such things as what matters constitute the subject of mandatory disclosure, what constitutes a "single question" or "single request," and other issues of this nature.
Are we making justice inaccessible? As an example, can we afford, under our current system, to bring a lawsuit where the damages do not exceed $20,000, $40,000, $50,000, or whatever you think the criteria should be? If the answer is no, it is indeed a sad commentary on the system, wherein those who are in most need of our services are least able to afford them. The Colorado Supreme Court is currently considering a proposal for the unbundling of litigation services (limited representation of pro se parties). Also, mandatory pro bono has been discussed. No decision is currently on the horizon.
Are we making the process too expensive? Are we over-regulating the practice, and are we over-discovering, over-deposing, over-experting and over-trying lawsuits? As a necessary result, are we overbilling our clients? Can we honestly say that the resolution of disputes requires numerous court appearances and a myriad of rules? Rather than having court-imposed mandates, must we not, as attorneys, regulate ourselves?
The examples I have set forth here, I believe, represent merely the tip of the iceberg. Justice Abella goes on to state:
Our monopoly puts us in a fiduciary relationship with the public. We are the gatekeepers and groundskeepers of the fields of law. As guardians of rights and defenders of law, we should be on the front line for reform, taking on outmoded systems, and should be seen putting the public good before our pockets or our prestige.
Are we losing our way?
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