Forget for a moment whether former President Donald Trump deserves to float or sink amid the waves of lawsuits washing over him. Consider instead what this sea of trouble teaches us about the state of our legal system.
Jan. 6, 2021, is more than two and a half years behind us. Yet only now are we seeing decisions about prosecuting Trump. The federal and state indictments of Trump at this point are only the emerging tip of an enormous litigation iceberg surrounding Trump.
Not counting matters where he is only nominally a party as president, there are more than 100 Trump-related lawsuits that have languished in the courts since he became president. They include matters related to his finances and taxes, his media coverage, his disputes with Congress and a tsunami of suits surrounding his campaigns and elections. He filed many of them, if not most of them, himself.
Trump knows better than most that if you want to make a problem tread water, all you have to do is toss it into court. Some calculations show he has filed more than 4,000 business-related lawsuits over the years. Each of those lawsuits is swimming through a judicial system that drowns out the substance of disputes with a sustained stream of expensive and time-consuming formalities.
The contemporary lawsuit is a formalist lawsuit. Rather than getting to the heart of a dispute, it begins and dwells on the lawsuit itself.
The opening moves attack the form of the lawsuit. Did the right person bring it? To the right court? Too soon? Too late? Such questions often take the form of attacks on the court’s “jurisdiction” — its right to hear the case. These attacks can bring a lawsuit to a dead stop. Clever lawyers can drag out such questions for years.
A motion is filed. Months go by, waiting for a response. Extensions are sought. Replies must be drafted. Extensions are sought again. The matter must be argued in front of a judge. Extensions are sought about that too. After an argument, sometimes extra briefing is sought. When it finally gets to the judge, it takes months to issue a ruling even on such preliminary matters. Not infrequently, judges take years to make rulings.
Next, the parties start attacking the legal adequacy of the claim, the defenses and counterclaims made about the claim. Did the party use the right magic words under a specific legal theory? Thanks to a Supreme Court ruling, federal judges may consider whether the lawsuit was drafted “plausibly.” These motions go through the same briefings, extensions, arguments and interminable waiting as the jurisdictional attacks.
More years go by.
If the case is dismissed, many times it can simply be refiled with the claims adjusted. When it is, the whole process begins again — like a stinking tide rolling in and out of the courtroom.
Unfortunately, we haven’t even gotten to the long part yet. Most of the time and money in a lawsuit is taken up with fights over evidence gathering — “discovery.” Not fights over the evidence itself, mind you, but fights about the process of gathering the evidence.
The lawyers draft elaborate requests for documents and information, including inscrutable definition sections, redundant requests and probes into matters that have little better purpose than to bludgeon the opposing party with expense and delay. The requests are met with an equally tangled set of objections — often to every definition, every question and every document request. The whole motion practice whirlpool then begins spinning again. More delay. More expense. More years.
And this is where most lawsuits end. Ninety-nine percent of contemporary lawsuits never get to trial. If they make it past the discovery stage, the parties have almost always spent more than they expected. When their lawyers ask for large fee deposits to prepare for trial, they grasp at the lifeline of a settlement.
People suing settle for pennies on the dollar. People being sued — including entirely innocent people — pay money just to avoid the cost of further litigation. Lawyers collect their fees. Courts don’t have to decide the dispute between the parties.
It wasn’t always this way. Lawsuits were once faster and decisions shorter. When judges wrote we could understand what they wrote and learn from what they thought. Courts are supposed to be problem-solvers in everyday life.
We can return to this by creating a new kind of lawsuit — one that focuses not on the form of the case but on the human dispute, and is resolved by a decision rather than the parties’ exhaustion. This kind of “humanist” lawsuit would be about the people involved in the lawsuit, their conflict and the human values enshrined in law that will resolve that conflict.
In the new lawsuit — in the humanist lawsuit — the judge, not the parties, manages the discovery of evidence, asking the parties what documents they want and deciding what witnesses they may question. The judge simply issues orders about these things and supplements them as needed with remote video conferences. There is no need for briefings, counter-briefings and delays.
At trial, the judge requires the parties to stipulate in writing to undisputed facts, so that few if any exhibits have to be collected or authenticated. If a judge is deciding the case, that judge gets right to who wins and why, under the basic human values enshrined in law. Court opinions don’t need to be jammed with formalist background about the case and the law. The judge applies the law and explains why. Time and money are saved again.
Under the current system, Trump’s lawsuits will outlive him as a kind of zombie tribute to his litigiousness. For him and others, the court system is a decision-avoidance system.
Yet we can change this for future generations. By transitioning from formalist lawsuits to humanist lawsuits, we can stop burying problems under procedural mountains, and instead shine a light on that precious object that was once at the center of the American dream — justice for all.
Thomas G. Moukawsher is a Connecticut complex litigation judge, a former co-chair of the ABA Committee on Employee Benefits and author of the forthcoming book from Brandeis University Press, “The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.“