A sitting judge makes the compelling argument that we should simplify lawsuits to create a more humane and accessible legal system.
Americans are losing faith in their courts. After long delays, judges often get rid of cases for technical reasons, or force litigants to settle rather than issue a decision. When they do decide cases, we can't understand why.
The Common Flaw seeks to rid the American lawsuit of this needless complexity. The book proposes fifty changes from the filing of a complaint in court to the drafting of appellate decisions to replace the legal system’s formalism with a kind of humanism. Thomas G. Moukawsher calls for courts that decide cases promptly based more on the facts than the law, that prioritize the parties involved over lawyers, that consider the consequences for the people and the public, and that use words we can all understand. Sure to spark an important conversation about court reform, The Common Flaw makes the case for a more effective and credible legal system with warmth and humor, incorporating cartoons alongside insightful reflection.
By:
Thomas G. Moukawsher
Imprint: Brandeis University Press
Country of Publication: United States
Dimensions:
Height: 9mm,
Width: 6mm,
ISBN: 9781684581641
ISBN 10: 1684581648
Pages: 240
Publication Date: 28 December 2023
Audience:
Professional and scholarly
,
Undergraduate
Format: Hardback
Publisher's Status: Active
Preface Acknowledgments 1. Prefer humanity to needless complexity 2. Rethink ninety percent of the typical complaint. Make it about key facts, not law 3. What if a single motion addressed basic pleading and proof deficiencies? 4. It’s better to decide cases once. Use agency remands sparingly 5. Reconsider standing challenges. They invite more lawsuits 6.Reduce fighting over subject matter jurisdiction. The unheard will not remain unseen 7. Order discovery when a case begins. Police it without written motions 8. Creatively manage complex cases. No case should be too big to try 9. Mediate, but don’t delay the case for it 10. Streamline trials: They’ll be more final, more credible 11. Directly involve judges in jury selection 12. Increase juror numbers and diversity with remote jury trials 13. Question the Number of motions in limine 14. Most exhibits prove undisputed facts. Do we need them? 15. Actively oppose cumulative and time-wasting testimony 16. Is too much expert testimony discrediting experts? 17. Consider common sense first in family court 18. Introduce time clocks to encourage efficient trials 19. Needless objections annoy judges and jurors 20. Make a point, not a muddle, with prior testimony 21. Punish misconduct when it happens rather than in a separate proceeding 22. Cross examine crisply, crushingly, or not at all 23. Humanize overstuffed, bewildering jury charges and interrogatories 24. Save time in court trials by substituting longer closing arguments for post-trial briefing 25. Keep cases in the hands of a single judge from start to finish 26. Speed cases to trial with judicial administration instead of slowing them down 27. Accelerate and simplify justice with technology 28. Should virtual proceedings be the rule? 29. As a judge, prefer the model of a village elder 30. Cases are better resolved on their facts than on the law 31. Deploy canons of construction sparingly—only when they have a compelling reason to exist 32. Rarely resort to legislative history. It’s often unreliable 33. Reduce distractions by identifying fallacies 34. Don’t blur laws to conquer facts 35. Are endless consumer disclosures doing us any good or are they just low hanging fruit? 36. Reduce judicial testiness: Use multi-point tests only when each point has meaning 37. Similar sounding cases aren’t precedent 38. The best legal writing is literature, not formula 39. Not much is gained by plodding through the history of the case and universally familiar standards 40. Junk the jargon 41. Needless detail is… 42. The best appellate decisions deeply and plainly explain the law 43. Is there a home for law clerks somewhere between busy worker and junior judge? 44. Appellate courts should reform rusty rules 45. The best trial court decisions get straight to saying who wins and why 46. Why obscure our basically honest courts in a needless cloud of complexity? 47. Can lawyers thrive under the same old business models? 48. Can courts reimagine themselves? 49. Can rethinking law clerking remake the future? 50. Recognize needful complexity and meaningful formality 51. Can steady courts mean a steadier country? Illustration Credits
Thomas G. Moukawsher is a Connecticut complex litigation judge. He is a former cochair of the American Bar Association Committee on Employee Benefits. He is a member of the Madison Council advisory board of the Library of Congress and is a sustaining life fellow of the American Bar Foundation.
Reviews for The Common Flaw – Needless Complexity in the Courts and 50 Ways to Reduce It
“While you may not agree with every one of the fifty ways 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.’” * Los Angeles Review of Books * “Over the course of 51 chapters spanning 240 pages, punctuated by 51 pithy cartoons, Moukawsher soundly nails his 50 theses to the law’s front door calling for reform.” * Vermont Bar Journal *
