Table of Contents Cover Featured Article
By Rex S. Heinke.
Rex S. Heinke is president of the Association.
This President's Page was originally published in the January 2001 issue of Los Angeles Lawyer.
The Dangers of Monopolistic Thinking
Without substantial changes, local courts could be the next government monopoly to crumble
A monopoly (at least a perfect monopoly) is something that consumers have to use if they want to avail themselves of a particular product or service. Many government agencies act as if they were monopolies—because, in fact, they are. If you need a permit to remodel your home, there is only one place to get it: the government. If you want to renew your driver's license, there is only one place to go: the government. This is one of the reasons that government employees are sometimes rude and uncaring. They know you must deal with them and pretty much accept however they treat you. If an alternative were available, you would certainly use it, and they would soon be out of business.
These facts of life offer an important insight into our experiences with local courts. While many court employees and judges are conscientious, hard-working, and courteous, one does not have to spend much time dealing with the courts before encountering clerks and judges who act like they believe the courts are monopolies. Of course, they do not say that, but they sure act that way. For these people, everything is done for their convenience—a clear sign of monopolistic thinking.
Like empires, all monopolies eventually crumble, because someone or something comes along and breaks their monopoly. Sometimes this is due to action by the government itself, although the government far more often acts to break up private monopolies, (such as Standard Oil) than it does to break up its own monopolies. Sometimes monopolies are destroyed by technological innovation. For example, railroads lost their monopolies, at least in part, because new transportation methods, especially trucks and airplanes, were developed. Sometimes the people subjected to the monopoly themselves break it up through revolution, as we witnessed in the fall of European communism.
However, people can sometimes revolt without resort to weapons. Citizens can simply vote with their feet and opt out of the monopoly. A classic, current example of this phenomenon is the revolt against public schools. While public schools have never held a pure monopoly on education—there have always been religious and other private schools—the vast majority of Americans have been educated in public schools. However, as people have become increasingly dissatisfied with public schools, those who can—usually the most affluent—have opted out.
The status of our public schools has reached such a dismal state that in the last election Proposition 38 proposed that the government fund the destruction of its own monopoly by providing a $4,000 voucher to each student who opted out of the public school system and chose instead to attend a private school. While that particular proposal failed, it is quite likely that we will find voucher proposals on our statewide ballot in future years. These events clearly show that if the public becomes sufficiently disenchanted with a monopoly, it can and will find ways to remedy the situation even if that requires destroying a government monopoly.
Implications for the Courts
Our courts could easily suffer the same fate as our public schools. Indeed, to some extent, that has already happened. Alternative dispute resolution services, particularly mediation and arbitration, have become the rage in recent years. Many prominent judges are leaving the bench for ADR. Many civil cases—especially those involving complex disputes with large economic consequences—are being handled with little or no involvement of the courts. The same is true for family law practice, in which high-stakes cases are often litigated outside the court system.
Some may cheer this result, arguing that it reduces the work load of our already overburdened courts and that if private parties want to pay for their own judges, taxpayers are saved the expense of paying for more judges, clerks, and courtrooms. There is substantial force to these arguments. It is also true that many disputes, such as those in the labor area, have long been handled successfully by ADR. Besides, why shouldn't people be able to use whichever system—public or private—that best serves their needs?
There is nothing wrong with this trend, of course. We need both public and private mechanisms to resolve disputes, just as the nation is better served with a dual system of public and private education. The question is one of scale. If enough members of the public start opting of a government system, it will soon be in trouble. The first to leave are always those who can afford to opt out; this means that the affluent and powerful go first.
This has a disproportionate effect on the system that is far greater than the actual numbers involved, because those left behind reflect a change in the makeup of the public system's users. If the number opting out becomes too large, public support for the government system seriously erodes. Not enough people—especially those with money and the ear of the government—care any longer about the public system because they have stopped using it. This makes it very difficult to organize the constituency and secure the funding that is needed to fix the public system. We must not let that happen to our courts.
What Can Be Done
Fortunately, our courts appear to have recognized the problem. The Blue Ribbon Commission, sponsored by the Los Angeles County Bar Association and working in coordination with the leaders of the Los Angeles County Superior Court, is helping the court to shed its monopolistic thinking and procedures. The Blue Ribbon Commission has done extensive work to survey what the users of the courts think about how things need to be improved. As a result, the court is already instituting many changes, such as one-day-or-one-trial jury service. However, this is only the beginning.
What we need to do is regularly survey the users of the courts to determine where improvements are needed and then implement them. Under the leadership of superior court Judges Harvey Schneider and Carolyn Kuhl and working with Dr. Bryan Borys (director of organizational development and education for the superior court) and the Association, the superior court's Complex Litigation Program is developing a way to assess its performance and to then implement changes to improve it. Similar programs are being considered for other parts of the court.
Such surveys, however, raise difficult problems. For example, how can we get lawyers to reveal what they really think about how a judge, or his or her staff, handled a case? The fear of repercussions, if anything negative is said, is ever present. Yet, without honest evaluations, judges cannot properly assess how well they are doing.
We face other hard problems. How can we accurately evaluate the information that is collected? Some lawyers may attempt to curry favor by reporting only how wonderful things were in a particular courtroom. Others will not respond at all. Your thoughts on how to deal with these and similar problems would be greatly appreciated. In short, how can we best get you to provide accurate feedback on the performance of the courts in one of your cases? If you would like to share your views on these matters, please send me an e-mail, and let me know.
One last observation: The last time I was at a local office of JAMS, one of the leading ADR providers, I was happy to sample its free cookies and coffee. Of course, JAMS does not do this solely out of the goodness of its heart—but also to encourage repeat business. When the courts show a similar desire for repeat business, we will know that monopolistic thinking is waning.