My husband is a cattle and sheep rancher, and during the 36 years of our marriage, I have learned a few things—for example, in the spring, livestock can overgraze on sweet new grass to the point of killing themselves. It is called foundering.
Due process in the American civil justice system is like sweet green grass: It is essential to our lifeblood, but too much can be deadly.
Beginning in 2008, the profession began to sound the alarm that the civil justice system was indeed in danger of foundering. The ABA Section of Litigation was part of that chorus. More than 3,000 members of the section participated in a survey (PDF), which found that:
Litigation is too expensive (81 percent).
Because of those costs, smaller cases are not litigated and access is denied (82 percent).
Litigation costs are not proportional to the value in a small case (89 percent) nor even to the value in a large case (40 percent).
The cost of litigation forces cases to settle that should not settle based on the merits (83 percent).
