Perhaps no one wants to say it, or admit it, but there seems to be a crises in some state courts in the US. As part of our business in New Zealand, we regularly return to the United States to go to trial for my clients in both the US and NZ. However, it is becoming increasingly difficult to obtain a reliable setting for trials in many courts due to the increasing amount of cases (the ‘docket’) needing to go to trial.
This tells us two things: (1) the population changes in many states, such as Texas and other Southern states (see http://projects.nytimes.com/census/2010/map?ref=us) , resulting from business friendly state regulatory schemes, no state personal income taxes, and low costs of living at a high standard have had an impact on the capacity of the courts; and (2) the hit on many businesses by the Global Financial Crisis has created an unwillingness in many parties in litigation to settle their cases.
However, the impact on the actual litigants in these courts is often misunderstood. For example, in the district courts of Harris County, Texas, the court schedules the trial of each case by giving it a two week slot in which that case, along with generally 20-30 other cases, might be called to go to trial (the so-called “docket”). The litigants are only given this vague warning that their case may be called, with actual warning not coming until generally 1-2 days before the actual trial begins. Generally those which are closer to the top of the docket list can be expected to be called before those who are lower on the list. However, in the past two years, even cases which are set at the very first of the list can not rely on the starting date. In the past two cases I have tried in Harris County district courts, the court has reset the case over 4 times each! This makes it almost impossible to rely on the schedule of the court and exceedingly difficult to adequately prepare for a case.
The litigants are the ones who generally lose out here, especially the plaintiffs which bear the burden of proof. You see, each litigant has a trial plan which coordinates witnesses in a tightly controlled presentation of the facts to the jury. As you can imagine, for complex commercial cases or personal injury cases, this often means the delicate choreography of third party witnesses who often do not live near the court. When the courts play loosey goosey with the scheduling of the trials, this choreography is often thrown into utter chaos, with the availability of witnesses changing daily (remember, no one wants to put on a witnesses to testify for you who is angry at you for calling them on a day which is inconvenient). This often results in the disturbance of the litigant’s trial plan, forcing the trial attorney to call witnesses out of order, which in turn causes a haphazard presentation of the facts to the jury. This can dramatically increase the costs of litigation, as expert witnesses who charge the litigants by the hour are left sitting in the wings waiting to come on, instead of being able to stick to a sharp schedule and control these costs. In the end, this significantly lessens the likelihood of a just outcome for the litigants, as the jury is not given an orderly and logical presentation of the facts and the litigants are forced to pay more to try a case than is necessary.
When faced with this sort of issue, the government needs to react to increase the number of courts. A failing court system is a negative indicator on the health of a democracy. Adequate and relatively inexpensive access to the civil justice system is an absolute necessity.