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Justice in Federal Civil Court Should Be for All – It’s Not

Cost Of Justice
Justice in Federal Civil Court Should Be for All – It's Not

Excessive fees and convoluted procedures prevent all the people from enjoying equal justice in civil court, in spite of the Constitution. We need to fix this.

“Equal Justice Under Law”, a phrase carved into the facade of the U.S. Supreme Court, is said to be the foundation of our legal system. Unfortunately remediation of civil claims in the federal district courts has become a privilege reserved for wealthy individuals and companies—those who can easily afford the high costs of litigation.  Meanwhile the poor and middle classes are effectively disenfranchised from the due process guaranteed by the Fifth Amendment.

For starters, the filing fee of $400 per civil claim in every federal district, imposed by Congress at the behest of judicial administrators, is prohibitive for most.  It’s often the equivalent of a month’s rent, mortgage payment, or family food bill.  As reported by sources like the New York Times, the Washington Post and USA Today, about 70 percent of Americans have less than $1,000 in savings, frequently making this steep filing fee a bar for access to relief in these courts.

For those who manage to come up with the fee, the next financial hurdle is paying for attorneys who routinely charge $300 or more per hour.  There is no small claims procedure in any federal district court, where lawyers might be unnecessary.  But there should be and its within the power of the judicial branch to establish it promptly. In its absence, legal costs for both sides in a case quickly add up, thanks to the needlessly convoluted Federal Rules of Civil Procedure whose complexity regularly turns simple cases into “motion minefields”. Dozens of pre-trial motions and a discovery process that includes “mini-trial” type depositions and near limitless filing of applications to judges for orders expand the pre-trial process, run expenses into the stratosphere.  This gives unfair advantage to parties with deep pockets, who routinely front a battalion of lawyers to smother the other side with paperwork.  Attorneys call this “litigation by the pound” and it’s manifestly unjust to every resource-poor opponent.

Constitutional Debate 101

Federal district and magistrate judges, most inundated with too many cases, inch civil claims through the system, with most matters taking years to complete.  As criminal cases on federal dockets must take priority over civil matters, the time between filing a civil claim and its final disposition grows longer in our increasingly litigious society. Justice delayed is justice denied and this archetype has become the de facto rule, rather than the exception, for civil claims in the federal courts.  Many litigants simply abandon their case as they run out of funds. Time is money and barristers are not giving away either. America, the nation with the most lawyers on the planet, dispenses the worst justice in federal civil cases because of this lopsided, manifestly unfair system.

It’s time for radical change.  Congress must act to restore equity for all civil litigants in federal court, where judges, for better or worse, sit for life (“good behavior” in the Constitution).   The existing Federal Civil Rules ought be replaced with a new playbook to limit the current gaggle of pre-trial motions to only two;  1) A motion to dismiss for failure to state a claim under the law, and 2) a motion for summary judgment, where none of the material facts in the case are in dispute.  To streamline the discovery process, enacting rules with “teeth” such as mandatory monetary and disciplinary sanctions against non-compliant or dilatory litigants, will prompt the parties toward a timely joint release of all material relevant to the case.  Discovery should be closely monitored and strictly enforced by the magistrate judge assigned to the matter.   Speedy trial rules for civil claims, non-existent today, can be written to compel that these cases go to trial or settlement within one year of filing.

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The exorbitant filing  fee should be reduced, then capped, to a maximum of $50 for individuals, $100 for business entities.   In a nation governed by laws, Congress ought to fully fund the federal judiciary so litigants don’t have to shoulder excessive court costs to have their “day”.   Access to justice must be on a equal footing for all civil parties or it becomes an injustice.  If the courts are not wont to set up small-claims parts, Congress should mandate them.

Finally, Congress must fill the all-too-many extant vacancies in the district courts.   The Senate should act responsibly, with deliberative speed and a minimum of filibustering, to vote on nominees sent by the president. Additionally, in some of the districts Congress must create more judgeships, commensurate with the burgeoning local  workloads.   Additional magistrate judge positions should also be budgeted as they superintend much of the pre-trial proceedings in civil cases.  More arbiters, faster resolutions.

Properly funding our federal trial courts, making court costs for litigants reasonable and streamlining civil procedures, will give everyone the due process mandated by the Constitution for the protection of property rights.


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Martin Schwartz
About Martin Schwartz 13 Articles
Martin Schwartz was a N.Y. police officer, a U.S. Treasury Special Agent (criminal investigator) attached to the U.S. Customs Service, an assistant district attorney in NYC, a special assistant U.S. Attorney in the Southern District of New York (Manhattan) and a special counsel to the U.S. Department of Justice. He is now a writer with prior published work in the N.Y. Times, U.S. News & World Report, U.S.A. Today and Newsday, and a consultant to law enforcement.
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