Wednesday, December 12, 2007

What is a Court?

Birkbeck Law School held a symposium on adjudication this week, organized by Linda Mulcahy with the help of the Journal of Law and Society.

The main focus was "Courts and the Public Sphere" which was addressed by three papers presented by Judith Resnik of Yale Law School, Simon Roberts of LSE, and Linda Mulcahy. The title of this post is taken from Simon's paper.

He examined the Mayor's and City of London Court during 2006 looking at the way it handled cases. The court is a county court in the City of London hearing civil cases not assigned to the high courts. These involve contractual disputes and personal injury claims and the like.

The starting point was seeing if the Woolf civil procedure reforms on promoting settlement rather than trials was being effective. It was doubtful within the range of data collected if that could be answered. Simon Roberts collected statistics on case trajectories and observerd some pre-trial case reviews.

The figures for 2006 are telling:

Claims issued: 5,777
Defences entered: 2,021
Cases allocated to track: 914
Cases listed for trial: 637
Cases determined at trial: 140

The attrition rate is enormous. From close to 6,000 claims to 140 cases tried through to result. As soon as a defence is entered a huge proportion of cases settle as soon as the two sides learn more about the other's case. And as Roberts quoted from many lawyers, "Listing focusses the mind." With the result that only a relatively few cases are tried.

The idea that trial and judgment was the norm is a fallacy. What we do know is that judges spend little time on cases, and less on trying them. Apparently, the worse thing that could happen was for a case to be argued on a point of law because the result would be entirely unpredictable. This was a great promoter of settlement.

The conclusions of this preliminary study are profound. Most cases are resolved through bilateral negotiations (in the shadow of the law and court). The court's mediation role is small. The main task for judges is to supervise the negotiations.

Do we need courts? Do we need judges? Or as many of them as we have?

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