September 2008

Some Final Thoughts

by WSBA President Stan Bastian

In my final column as WSBA president, I want to discuss two issues that continue to challenge the legal profession and which will require considerable attention and effort by the Bar Association — 1) the escalating cost of civil litigation and 2) inadequate funding for our trial courts.

Litigation Costs

Anyone in practice for more than a few years will probably agree that civil litigation is increasingly time-consuming and expensive. It always was, but unfortunately it is getting more so with each passing year.

Recently, in my own practice, I have seen at least two unfortunate and troubling developments: 1) potential plaintiffs with meritorious claims are choosing not to file lawsuits because of the enormous expense involved, and 2) defendants are choosing to settle lawsuits primarily because of their desire to avoid the expense of defending the lawsuit. Unfortunately, decisions to initiate, conduct, or settle litigation are being made less and less on the merits of the case, and more and more on the desire to avoid expensive litigation costs.

We are spending too much time asking and answering interrogatories, managing and conducting electronic discovery, filing and answering discovery motions, taking and defending endless and sometimes unnecessary depositions, and filing and responding to motions to compel. This has got to stop.

Litigation should not be a game played by lawyers for their own amusement and financial gain. It must be a tool available to help clients resolve real legal problems both efficiently and cost-effectively. Clients won’t use the litigation process, and perhaps they won’t use our services, if they can’t afford it.

We must find a way to make civil litigation more affordable and more financially accessible. We need to change the rules so that there are limits to the amount of written discovery, such as interrogatories and requests for production of documents. We need limits on the number and length of depositions. Depositions that take a full day or even multiple days should be a rarity, but unfortunately, they are becoming increasingly the rule, not the exception. We need more clarity on how to preserve and conduct discovery regarding electronic records. We need some limits to the costs associated with expert witnesses. Finally, we need to shorten the time it takes to get a case to trial. It is simply not acceptable for a case to take two, three, or even four years to get to trial.

In my opinion, the federal rules of civil procedure provide a good model for change. Pursuant to the federal rules, trial dates are scheduled early in the process and rarely changed. Discovery has manageable and meaningful limits, and deadlines are set early in the process and then enforced by the courts. Interrogatories are strictly limited, and the number and timing of depositions are restricted. There is more certainty and limits to the discovery process, and this helps reduce both abuse and costs.

I believe that we should give serious thought to changing the civil rules to more closely resemble the federal rules. Not all of you will agree with this proposal, but I make it in part to stimulate some debate and discussion about these issues. We need to control the escalating costs of litigation; otherwise, it will become an increasingly irrelevant tool for our clients. Changing the civil rules is certainly not the only answer to this problem, but it may be a start.

Court Funding

Most of you know that the Bar Association and the state judiciary have been working together for almost five years to change the way that the state Legislature funds the trial court system. This effort is known as the Justice in Jeopardy Initiative, and it was started because the chronic under-funding of our trial courts had led to an impending crisis in court operations, civil legal aid, parent representation in dependency cases, and indigent public defense. 

In fact, several years ago a task force concluded that Washington ranked last in the nation in providing state funding for the costs of trial courts, prosecution, and public defense.

I am happy to report that the effort has led to many successes. In fact, in the last five years the state Legislature has increased state funding by $47.6 million, including: $16 million for parent representation in dependencies, $12.3 million for public defense, $8.3 million for civil legal aid, $6 million for statewide CASA, $2.4 million for district and municipal court judges’ salaries, $2 million for interpreters, and, finally, $600,000 for a juror-pay pilot project. Members of the Bar Association and the judiciary are very thankful for these efforts by members of the Legislature.

Unfortunately, for every step forward made with state funding, we seem to take two steps back with local funding by our counties and cities. The court system is easily overlooked when it comes to budget time during economic downturns, such as what we are now experiencing.

We need more judges, courtrooms, clerks, prosecutors, public defenders, and publicly funded lawyers for people with low incomes. But all of this requires more money. Unfortunately, this issue is not close to a solution and this bar association must continue to make every effort to ensure that our courts are adequately funded. We cannot become complacent about this critical issue. 

WSBA President Stan Bastian can be reached at stanb@jdslaw.com or 509-662-3685.