The Way We Have Always Done It: On Thomas G. Moukawsher’s “The Common Flaw”

JUDGES ARE by nature very conservative. We are suspicious of change, and often cite as authority “the way we’ve always done it.” We literally follow old cases for this reason under a convenient Latin term: stare decisis. There is simply no other explanation for yellow legal pads than habit. We wear black robes because, well, we do, and have done so for hundreds of years.

Change, when it comes, has often occurred because of technological innovation thrust upon us. I still recall a day in 1979, during my clerkship for a federal judge, when his secretary came into my office and gave me a little yellow block of paper. I asked what this was. She pointed to my typewriter where I was typing a draft order and said, “You write your corrections on these tabs and you will never write on my drafts again.” So, the coming of Post-its heralded a new age. Soon thereafter came erasable typewriters and word processors. It was not until years later that our courts stopped using 11-inch x 14-inch paper (and legal pads).

Years later when I was in private practice, my office manager gave me a blocky cell phone to try. It had a flimsy extendable aerial. A friend and I took the cell phone and drove to a hearing in Sacramento, California. On the way, we called our wives and a few friends, and the office manager. We soon got bored, and somehow broke the aerial off. I returned the phone to my aghast office manager. But I got more adept. At some point, I even learned to text.

With the passage of time, and despite technological innovation, litigation has become slower, more expensive, more complex, and less friendly to its ultimate user, the public. A large part of the reason that litigation has become so dysfunctional goes back to our resistance to change, which Connecticut civil judge Thomas G. Moukawsher documents in his new book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It. His basic thesis is that our courts have become enmeshed in needless complexity and formalism. He offers a long list of suggestions, some very practical and others hopelessly romantic (“What if judges and lawyers simply changed habits—case by case?”). His focus is on civil, not criminal, courts.

Most of what Moukawsher suggests will be of interest primarily to judges and lawyers. There is a fair amount of inside baseball. But his book rests on a basic premise that should be of interest even to nonpractitioners: judges should rethink how they do things with an eye to making courts simpler, more accessible, and more human.

One innovation he suggests is the remote, online courtroom. For years prior to the recent pandemic, my court system in California debated and discussed the idea of remote hearings. The endless meetings and reports accomplished basically nothing, despite broad agreement that remote hearings had the potential of making courts more accessible and less expensive. Then the pandemic hit, and the unthinkable became, if not a necessity, a spur towards change. During the pandemic’s first weeks, my court system shut down. It remained too dangerous for crowds to come back to court, so we began holding hearings, and then trials, online. I was one of the early remote hearing skeptics, particularly of the idea of remote jury trials. How would we ensure jury attendance or even make sure they paid attention? What about the digital divide?

And the lawyers hated the idea. To many of them, due process meant “the way we have always done it.” But the old ways were not available, and we embarked on the remote experiment. In my court, in Oakland, we found, contrary to our fears, that remote trials increased access and participation by jurors, who loved the convenience of not having to commute or sit around doing nothing while judges and lawyers met separately to deal with evidentiary disputes. While remote trials were different from live trials, they were not necessarily worse. In fact, as Moukawsher points out, you can see witnesses better on the screen. And remote juries tend to be more diverse than live ones.

For most people, going to court means traffic, family, or small claims court. Before the pandemic, if you went to any of these courtrooms, you would see scores of people in the audience, often for hours, waiting for their cases to be called. Often, because the court ran out of time, or a party was unavailable, the case would be rescheduled for another hearing date. And each time you went to court, you would likely have to take time off work, or arrange childcare. Transportation presented another issue to contend with. If you lived in my county, Alameda, it might take more than an hour to get to the courthouse by public transit, or even by car.

If your case involved child custody or support, you would just suck it up and go because of the high stakes. If it involved a traffic ticket or a small claims matter, you would likely want to ask yourself if justice was worth the cost.

Moukawsher persuasively argues that for these types of court proceedings that impact most of us, remote proceedings remove the largest barrier to obtaining justice—the time and inconvenience of having to go to court while missing work or school. He thinks these hearings should all be online. I’m not sure I totally agree. Some people don’t have access to the internet, or a quiet place to Zoom. Others want the formality of the courtroom. The solution, if the court has the technology, is a hybrid courtroom where both remote and live participation are available.

Lawyers are expensive. Insurance companies complain about the rising cost of litigation. Moukawsher makes a number of suggestions aimed at reducing this cost. Most civil cases do not go to trial—they settle or are resolved by motions that summarily decide the case. The main court proceedings in most cases are status or case management conferences to set deadlines and hearings on motions. Because lawyers and judges like redundancy, we call these hearings “law and motion.” Hearing days in court pre-pandemic featured crowded courtrooms where lawyers, often billing by the hour, would wait for an hour or more for their 10-minute hearing. If the case was complex or the stakes were particularly high, the lawyers might have flown in from out of town. If the case involved multiple parties, each party’s lawyer would attend. Here again, the remote hearing comes to the rescue. In many courts, including mine, lawyers now work in their offices until their case is called, and then they go online for the usually brief hearing.

This is not to say remote hearings are flawless, or that there are times when there is no substitute for an in-person hearing. But for most matters, it is only our historic aversion to change that has delayed such hearings until the pandemic forced us to innovate.

Lawyers write excessively long briefs and judges write unnecessarily long, and obtuse, opinions. Both the briefs and opinions have grown longer and longer over time, with no increase in clarity. Moukawsher champions brevity in briefs, opinions, and trials. Excessive length means more expense and less time for other cases. When I was a young lawyer, I feared judicially imposed page limits on briefs, but I soon understood that page limits force lawyers to focus their arguments and assist judges with large caseloads. Time limits for trials accomplish much the same thing. Moukawsher suggests judges use chess clocks to keep the lawyers on time. While I do not count time that precisely, I have found that setting time limits is an essential tool in keeping trials to a manageable length.

The judge puts his finger on some of the most useless (and time-consuming) traditional practices of judges and lawyers. A good example of this is the practice, in briefs and judicial opinions, of starting with a long recitation of the procedural history of the case. Such recitations are usually unnecessary and obscure the point of the motion. Lawyers and judges also often resort to long lists of case citations (aptly named “string cites”), most of which are redundant. The lawyers, or law clerk, wastes hours researching and listing all these citations, when often a single, recent, controlling precedent will do the trick.

Moukawsher argues that judges too often fail to reach the heart of the case, which we call the merits. Instead, they obscure the case in jargon and Latin phrases and rely on arcane doctrines such as standing and jurisdiction. Judicial opinions need to get to the point: “The best trial decisions get straight to saying who wins and why.”

Other best practices championed by Moukawsher include early mediation of cases, informal discovery conferences to quickly and cheaply identify what information each side really needs to make their case, reduction of cumulative testimony of lay and expert witnesses, and unnecessary exhibits in trial. Many of the judge’s suggestions reflect the modern, although not universally adopted, approach to judicial case management. In the old days, lawyers often ran the show, no matter how long it took to get a case to trial, or how lengthy the proceedings. The modern philosophy of judging holds that the judge sets the tempo and ground rules in order to make the process as efficient and economically feasible as possible. Moukawsher did not invent these best practices, which will be familiar to any judge who has had recent judicial training. He reminds us, however, that many courts have not fully implemented these practices despite their utility.

Moukawsher is less convincing where he argues for changes in judicial philosophies. You might agree with his criticism of the judicial philosophy known as “originalism,” championed by conservative judges like Supreme Court Justice Samuel Alito. Or you might question how such judges actually apply this theory. In my experience, judges (remember how resistant to change we are) are not likely to give up their judicial philosophies even if it would make courts less complex. Fortunately, at the trial court level, in the vast majority of cases, a judge’s politics or judicial philosophy should make little practical difference in the outcome.

But Moukawsher the judge rests his case on several refreshing ideas. First and foremost, we have to remember who we serve. The needless complexity and expense of our courts is repaid by the public’s increasing distrust. This complexity, as he argues, obscures our basically honest courts. Second, he envisions judges not as bloodless technocrats or power-driven autocrats but as something akin to the village elder, dispensing justice seasoned with common sense.

While you may not agree with every one of the 50 ways Judge Thomas G. Moukawsher proposes to reduce needless complexity, you should come away from his book invigorated by a judge who is not beholden to the “way we have always done it.”

¤

Brad Seligman is a California Superior Court judge in Alameda County, California.