America Should Rethink Litigation and Adopt More Humanist Courts

The contemporary American lawsuit focuses on its own form rather than the human problem that prompted it.

Starting with a needlessly complicated complaint, it’s followed by years of maneuvering about its adequacy, generating massive amounts of discovery. For any of a half-dozen reasons, it never gets to trial. The result often baffles the parties and lowers their esteem for the judiciary.

Things would be different if we could implement human-centered lawsuits. A humanist lawsuit focuses on basic social values enshrined in law, such as our dislike of lying, cheating, and stealing. The case tests those values against the facts and vindicates one of the parties.

These values are near the bottom of the priority list in major formalist lawsuits today but are first on the list of the too-infrequent humanist lawsuit. Formalist lawsuits often devolve into a case about a case. Wrong court. Wrong claim. Wrong party. Wrong wording. Wrong requests. Wrong trial.

Humanist lawsuits are about the claim. Wrong conduct. Right conduct. Rules. Facts. Results. Self-reference is replaced with humanism, and form yields to substance.

The humanist lawsuit starts with changing what complaints look like. Judges, lawyers, and even the public can understand and may even enjoy reading a humanist complaint, which focuses on those values we just considered. It’s the story of the party suing and how they propose to vindicate those values.

The humanist complaint is short and plain. It’s what most court rules call for and, as Judge Richard Posner noted, virtually no lawyers follow. It contains no overlength background sections. It starts with a law, but it’s more about the facts. It doesn’t try to transform a slip and fall or a stolen trade secret into a kaleidoscope of 10 to 20 different causes of action.

The humanist lawsuit doesn’t lose years to critiquing the parties, complaint, court, or causes of action. Mostly, it considers these things once, preferably along with the basic adequacy of the facts. It can be done in a single motion for summary judgment and eliminates serial refilings.

If a case will ultimately have a life in court, the court shouldn’t allow it to be dismissed multiple times while the person suing struggles to guess the right formula. We shouldn’t watch years go by while the lawyers lay one trap after another for a lawsuit they should know will ultimately be heard. And, when a case is frivolous, a summary judgment can hold that no amount of pleading can fix it. It comes to an end.

Discovery in the humanist lawsuit doesn’t dominate the lawsuit and exhaust the parties’ resources, leaving them little option besides settlement. It’s driven by the court rather than the parties.

At the beginning of the lawsuit, the court listens to the parties and orders specific documents exchanged and depositions taken. There are no interrogatory and production documents with 10 pages of definitions and 100 pages of questions and requests, each of which, after a year or so of maneuvering among counsel, is objected to, briefed, argued, handed to a law clerk, and ruled upon a year or two later.

The court issues an order, supplemented and enforced by brief and briefless remote hearings that yield additional short orders in plain English. Discovery, which today devours cases and client fortunes, can be over in a few short months even in complex cases.

When it’s time for trial, the humanist lawsuit focuses on the basic human dispute. The formalist trial is heralded by a long line of preliminary motions labored over by junior lawyers—most of which are denied or reserved for trial but delay the trial by weeks or months.

In the humanist lawsuit, evidentiary rulings are almost always made during trial, in context with prejudice avoided by dealing with them while any jurors happen to be out of the room. As with appellate arguments, humanist courts assign trials time limits.

The formalist trial is a competition to rack up the greatest number of exhibits. The trial in the humanist lawsuit focuses on the dispute, not the undisputed.

The court orders the parties to prepare trial admissions that don’t merely admit the authenticity of a document—a bank or tax record, for instance—they eliminate them.

Formalist jury instructions focus on giving a bit of what they want to each of the lawyers and on parroting appellate legalese. Humanist jury instructions spare jurors a law school class. They explain to jurors the fact disputes they must decide under the applicable law without trying to teach them that law.

When a humanist judge decides a case, the judge doesn’t wait for post-trial transcript orders and briefing. Instead, there’s a long, frank exchange between judges and lawyers about the parties’ claims and the judge’s questions about them. Lawyers speak to judges, not at them.

The humanist court opinion admits what it is. The opinion of one human about the fate of others under human values enshrined in law. It omits formalist throat clearing about when the case was filed, how many motions got filed in it, and what the parties claimed, and omits the usual out-of-context summaries of the evidence and law. It starts with who wins under the applicable law and why. Facts and laws are discussed when they matter and only if they matter.

No laws must change to replace the formalist lawsuit with the humanist lawsuit—only the habits of lawyers, law clerks, and judges. Courts can handle more humanist lawsuits than formalist lawsuits.

Lawyers might get hired more often for humanist lawsuits because the lawsuits are cheaper and faster. Most important of all, if lawsuits connect with humanity, perhaps humanity will connect with the courts and recognize them for what they’re supposed to be: problem solvers.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Thomas G. Moukawsher is a Connecticut complex litigation judge.

Write for Us: Author Guidelines