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Wrong prescription for civil justice

The commentary by James R. Maxeiner ("The fixable flaws of U.S. civil justice," June 24), insofar as it applies to Maryland, displays a lamentable lack of familiarity with the operation of our court system. The contention that a lawsuit where the damages are $100,000 is "too small" to be handled by the courts is simply inaccurate. And to contend that the fees for such a recovery would consume 75 percent of such amount is at odds with prevailing standards.

The proposal that parties meet with judges at the outset of litigation is unrealistic for many reasons, not the least of which the time devoted to such an effort by busy judges would be greatly disproportionate to any perceived benefit. Professor Maxeiner disparages the discovery procedures which exist in both the state and federal systems, and are subject to detailed regulation. More importantly, the results, in the vast majority of cases, provide the parties with information essential to development of the case, often facts not even known to an opposing party.

Completely ignored in the criticism are the procedures developed by the courts for disposal of cases short of trial. A party may move for summary judgment where it becomes apparent that no viable cause of action exists, most often after discovery. Widespread mediation is ordered by the courts in a vast number of cases, and settlement conferences before trial, at all levels, have resulted in the reduction of a significant number of cases that actually go to trial. The suggestion that the large majority of cases should actually be tried would result in the creation of huge backlogs, given the vast number of cases filed each year in our society.

Disregarded also is the existence of our two tier trial court system, where cases involving more modest damages, or less complicated issues, are resolved promptly and in significant numbers. The proposal for adoption of a system for an assessments of costs, including attorneys' fees, against the losing party is contrary to the long-standing practice in American courts. The specter of possibly having to pay substantial costs in the event of losing would preclude many from even attempting to resolve their disputes through the courts. In short, the critique falls short of any meaningful discussion of the effectiveness of our courts due to the apparent unfamiliarity with their day-to-day operation.

Lastly, the suggestion that deciding lawsuits is simply applying the law reveals a surprising lack of awareness of the history of the issues confronted by our courts in response to ever-changing economic and social conditions. Landmark decisions throughout the history of our country have provided society with answers to complex problems and benefited all of us in diverse ways.

Marvin I. Singer and Marvin H. Schein

Copyright © 2015, The Baltimore Sun
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