4 ms·

Moving from an adversarial each-party-has-lawyers-presenting-as-extreme-a-case-as-possibly-can-be-made-for-their-side system to something more like expert arbit

Moving from an adversarial each-party-has-lawyers-presenting-as-extreme-a-case-as-possibly-can-be-made-for-their-side system to something more like expert arbitrators and independent/court fact-finders would avoid the 'bury them in paperwork and filings' lawyer-cost explosions. Usually the concerns I've seen are around the lines of "the experts are gonna favor the powerful incumbents who they see a lot" buttttt if our system is already doing that AND costing way more anyway, barring entry entirely to many, is that so much worse? Even assuming we can't try to regulate that?

eddythompson80 2mo ago
How is that different from the current system? Wouldn’t you just bury those fact-finders in paperwork? Or are you trying to shift the cost and responsibility of the discovery phase to the court instead? Would the court pass it through to the plaintiffs/defendants like the lawyers do or is it just covered by the state?
- dghlsakjg 2mo ago
  We have quite a few tribunals, ombudspeople, and other non court dispute resolution services in Canada. Typically, the arbitrator is very well versed in the rules/area they are enforcing, and can see right through a snow job. In my province there is a tenancy tribunal that has to make a ruling before a court gets involved, and the courts rarely disagree with a decision made by the arbitrator in the 1% of cases that do get appealed. Because the rules are so clear, you can shovel piles of paperwork at them, and they will ignore it because they know what pieces of paper they actually need to make their decision. It isn't for complex big money cases, but it means that courts have more time for those cases because they aren't dealing with ticky tacky minor disputes over damage deposits and fender benders. Tenancy arbitration is just one of them, BTW. Just about every industry or agency has an outside ombudsperson that is the first step of dispute resolution before a court will be interested.
  - rob74 2mo ago
    Sounds good, but what's to stop the party with more money to appeal the ombudsperson decision if it's not to their liking and then apply the "we have a whole legal department for this" strategy?
    - dghlsakjg 2mo ago
      Legal expenses can be assigned to the loser much easier than in the US.
skew-aberration 2mo ago
Such systems do exist in 'civil law' (vs common law) countries (which are most of them outside the English-speaking world).
- C-x_C-f 2mo ago
  Yes, although they don't really obviate the issues raised by GP (costs, length, complexity). If anything, some of the largest civil law countries in Europe, like Germany and Italy, can arguably be considered worse than common law countries in all of these respects. Whether that's incidental or due to civil law, I cannot say.
  - ahartmetz 2mo ago
    Check out the amount of lawyers per capita. From experience in Berlin, one of the most dysfunctional German states, the length of lawsuits is a big problem, complexity I don't know - but costs are not crazy, and loser pays (a fixed amount depending on properties of the case). AFAIU, a side can pay more than the fixed amount for their lawyer, but the loser will not pay more. All that discourages outspending someone with frivolous litigation. https://worldpopulationreview.com/country-rankings/lawyers-per-capita-by-country https://worldpopulationreview.com/country-rankings/lawyers-p...
    - robocat 2mo ago
      > Check out the amount of lawyers per capita Apparently a highly biased measurement because the German legal system has more public funding compared to the US. I asked «For an argument against litigious societies, where someone points to "lawyers per capita" to compare the US with Germany, what might be a better yardstick?» The response was interesting to me: the key bit was "Germany has a massive civil service and specialized court system where many law degree holders work as judges or state administrators". I'm a geek from New Zealand so unfortunately that isn't something I can validate from knowledge.
  - District5524 2mo ago
    This is a very simplistic approach in itself that is self contradictory. You can't just lump together all legal proceedings of "largest civil law countries" together and compare that to common law countries in general. Statistics will be very different based on exact type of proceedings, the type of cases you try to compare ... if you can find any reliable statistics at all that compares apples to apples as they say. Take a look at the best the EU has (covering both civil law and common law countries) at https://www.coe.int/en/web/cepej https://www.coe.int/en/web/cepej for 2022 data. Italy is indeed an outlier in almost all legal areas, but it's just not in any ways similar to Germany... And I also couldn't point to any clear cliffs between common law and continental law countries. The US works very differently with its own 50 states. They have their own statistics at https://www.ncsctableauserver.org/t/Research/views/TrialDashboards/Overview https://www.ncsctableauserver.org/t/Research/views/TrialDash.... But it's very difficult to do any meaningful comparison with the CEPEJ (Council of Europe) data above. It's very judgmental even to compare seemingly simple things, such as what does actually a "criminal law case" means in one jurisdiction and if that is roughly the same in another. The NCS and CEPEJ are probably well equipped to make decisions on convering the data to be comparable after long deliberations by expert court statisticians doing this all their life... but I wouldn't dare to do that by myself, even if assisted by "Fable 99" and billions of tokens.

eddythompson80 2mo ago

How is that different from the current system? Wouldn’t you just bury those fact-finders in paperwork? Or are you trying to shift the cost and responsibility of the discovery phase to the court instead? Would the court pass it through to the plaintiffs/defendants like the lawyers do or is it just covered by the state?

dghlsakjg 2mo ago
We have quite a few tribunals, ombudspeople, and other non court dispute resolution services in Canada. Typically, the arbitrator is very well versed in the rules/area they are enforcing, and can see right through a snow job. In my province there is a tenancy tribunal that has to make a ruling before a court gets involved, and the courts rarely disagree with a decision made by the arbitrator in the 1% of cases that do get appealed. Because the rules are so clear, you can shovel piles of paperwork at them, and they will ignore it because they know what pieces of paper they actually need to make their decision. It isn't for complex big money cases, but it means that courts have more time for those cases because they aren't dealing with ticky tacky minor disputes over damage deposits and fender benders. Tenancy arbitration is just one of them, BTW. Just about every industry or agency has an outside ombudsperson that is the first step of dispute resolution before a court will be interested.
- rob74 2mo ago
  Sounds good, but what's to stop the party with more money to appeal the ombudsperson decision if it's not to their liking and then apply the "we have a whole legal department for this" strategy?
  - dghlsakjg 2mo ago
    Legal expenses can be assigned to the loser much easier than in the US.

skew-aberration 2mo ago

Such systems do exist in 'civil law' (vs common law) countries (which are most of them outside the English-speaking world).

C-x_C-f 2mo ago
Yes, although they don't really obviate the issues raised by GP (costs, length, complexity). If anything, some of the largest civil law countries in Europe, like Germany and Italy, can arguably be considered worse than common law countries in all of these respects. Whether that's incidental or due to civil law, I cannot say.
- ahartmetz 2mo ago
  Check out the amount of lawyers per capita. From experience in Berlin, one of the most dysfunctional German states, the length of lawsuits is a big problem, complexity I don't know - but costs are not crazy, and loser pays (a fixed amount depending on properties of the case). AFAIU, a side can pay more than the fixed amount for their lawyer, but the loser will not pay more. All that discourages outspending someone with frivolous litigation. https://worldpopulationreview.com/country-rankings/lawyers-per-capita-by-country https://worldpopulationreview.com/country-rankings/lawyers-p...
  - robocat 2mo ago
    > Check out the amount of lawyers per capita Apparently a highly biased measurement because the German legal system has more public funding compared to the US. I asked «For an argument against litigious societies, where someone points to "lawyers per capita" to compare the US with Germany, what might be a better yardstick?» The response was interesting to me: the key bit was "Germany has a massive civil service and specialized court system where many law degree holders work as judges or state administrators". I'm a geek from New Zealand so unfortunately that isn't something I can validate from knowledge.
- District5524 2mo ago
  This is a very simplistic approach in itself that is self contradictory. You can't just lump together all legal proceedings of "largest civil law countries" together and compare that to common law countries in general. Statistics will be very different based on exact type of proceedings, the type of cases you try to compare ... if you can find any reliable statistics at all that compares apples to apples as they say. Take a look at the best the EU has (covering both civil law and common law countries) at https://www.coe.int/en/web/cepej https://www.coe.int/en/web/cepej for 2022 data. Italy is indeed an outlier in almost all legal areas, but it's just not in any ways similar to Germany... And I also couldn't point to any clear cliffs between common law and continental law countries. The US works very differently with its own 50 states. They have their own statistics at https://www.ncsctableauserver.org/t/Research/views/TrialDashboards/Overview https://www.ncsctableauserver.org/t/Research/views/TrialDash.... But it's very difficult to do any meaningful comparison with the CEPEJ (Council of Europe) data above. It's very judgmental even to compare seemingly simple things, such as what does actually a "criminal law case" means in one jurisdiction and if that is roughly the same in another. The NCS and CEPEJ are probably well equipped to make decisions on convering the data to be comparable after long deliberations by expert court statisticians doing this all their life... but I wouldn't dare to do that by myself, even if assisted by "Fable 99" and billions of tokens.