Technology and Civil Litigation in the United States in the Twenty-First Century

Abstract

The cost of civil litigation is inevitably a cause of chronic dissatisfaction with any legal system. The concern for costs has perhaps been greatest in the United States for several reasons associated with the distinctive role of civil litigation in the nation’s political system centered in what can be described as the Democratic Courthouse. This paper wonders whether the traditions of the American Democratic Courthouse can withstand the shock of contemporary and forthcoming technologies bearing on the methods and costs of litigation, and raises a few doubts on that.

The paper opens with a critical historic description of the American Democratic Courthouse’s development since the late eighteenth century. It further describes the development of the private enforcement of public law, the extensive discovery procedures, the government’s reliance on punitive and other damages sought by unregulated lawyers, the wide jurisdiction American courts assume in civil matters and the natural result: an extremely high litigation costs in some (though currently not most) of the cases. The paper envisions constant growth in dependence on electronic measures and evidence resulted in shorter and cheaper trial and appellate procedures, and concludes, though, that the secondary consequences of the dramatic reduction in cost and delay, embodied mainly in the private enforcement’s frequency, are not easily visualized.

Professor of Law, Duke University. This essay is an updated edition of Virtual Civil Litigation: A Visit to John Bunyan’s Celestial City, 98 Colum. L. Rev. 501 (1998), republished as Virtuelles Ziviverfarhren in den USA: Ein Besuch in John Bunyans Himmlischer Statt in ZZZ International (Spring 1999) and in American Bar Association Judicial Division, The Improvement of the Administration of Justice 477 (7th ed 2001).