Many of us spend a lot of time decrying the high cost of our civil justice system, its errors, its biases, and its unfairness. Many of us acknowledge that our legal system is badly flawed, most notably due to the time and expense involved in most civil litigation.
One of the greatest values of knowledgeable, experienced, and ethical civil litigators can be their superior ability to handle cases efficiently.
It is deeply ironic that, in many cases, this means they are less well compensated since compensation in many civil cases is based on the hourly billing model. Nevertheless, savvy consumers of legal services wisely recognize that a knowledgeable and experienced civil litigator who, say, bills out at a relatively high hourly rate (or takes a higher contingent fee than other lawyers) might be the cheapest lawyer in town.
These thoughts came to mind when we recently noted the docket in Steiner v. City of Minneapolis. The allegations in Steiner’s lawsuit are remarkable. So is the apparent streamlined efficiency of the lawsuit.
The allegations are that officials of the city of Minneapolis (one housing inspector, in particular) seemed quite convinced that Plaintiff Brad Steiner was unlawfully housing “forty Mexicans.” Along with police officers, the inspector gained entry into Mr. Steiner’s home, searched for “all of the Mexicans” and “all the beds.” Not finding any, the inspector nonetheless evicted Mr. Steiner from his own home and boarded up the doors.
Mr. Steiner was allegedly forced to go to Minneapolis City Hall, to the Mayor’s office, to plead his case and argue that he cannot be evicted from his own home, and, after several hours, was allowed to go home, unboard his home, and return to his home. Mr. Steiner brought a lawsuit, represented by Mr. Zorislav Leyderman, for violations of his constitutional rights under the Fourth (for “illegal search and seizure) and Fifth (for a “taking”) and Fourteenth (for “due process” cases against state actors rather than federal actors) Amendments to the U.S. Constitution.
As puzzling and bizarre as these allegations are, it is also worth noting that the Plaintiff’s counsel, Mr. Zorislav Leyderman, brought the case in August of 2017, the case is scheduled for an April, 2019 settlement conference, and, if that does not succeed in resolving the lawsuit, a June, 2019 trial.
We note no motion to dismiss, no discovery disputes, no motions for extensions of time, no motion(s) for summary judgment, indeed no disputes of any kind. By all appearances, plaintiff’s counsel and defense counsel have managed to get along, to keep costs down, and, all hope, to reach a reasonable resolution by settlement or trial as inexpensively and non-contentiously as possible.
How much of the problem of our legal system — the punishingly high cost — is attributable to bad lawyers and bad lawyering? This data is difficult to collect. Let’s assume, for purposes of discussion, that a lot of the excessive cost and delay is due to what we will call “bad lawyering.” What kinds of rules or policies could be invoked to mitigate this risk?
It seems to us that bad lawyering is a significant factor in the excessive cost and delay in U.S. civil litigation but that our system’s tools (e.g., sanctioning lawyers, allowing for fee-shifting, imposing limitations of time and scope of litigation through scheduling orders) fail. It is nice to see a case, like Steiner v. City of Minneapolis, where these blunt and imperfect tools are unnecessary.