“Too Much Litigation?”: Facts, Reasons, Consequences, and Solutions

This is the third and final part of a trilogy of conferences held in Oñati, which tried to make sense of what are otherwise abstract numbers concerning of the various players in the legal arena in different countries. The first two parts dealt with the legal professionals: Lawyers (Oñati 2012) workshop titled “Too Many Lawyers?”); and Judges (Oñati Workshop 2016) titled “Too Few Judges?). In both previous workshops, we tried to present the data, the numbers relating to each profession, understand the reasons behind them, the problems these figures cause and suggest solutions to these problems. More importantly, we challenged the common perception that there are ‘too many lawyers’ and ‘too few judges’.

Contrary to the previous workshops which focused on the legal professions/als, the current one will focus on litigants and litigation – the ”clients” of both judges and lawyers. Generally speaking we can assume that lawyers wish to have more litigation, while judges wish to have less of it. But what is the interest of the litigants? Should potential plaintiffs always ‘run’ to file a claim in court? Should potential defendants (both criminal and civil) try to settle the dispute outside the court? How are litigants' interests and perceptions influenced by the wishes and interests of lawyers and judges? Are there differences in this regard between different kinds of litigants – Civil, Criminal or administrative, Corporate or Private, Rich or Poor, members of elites or Minorities? Is there such a thing as the “right” cases that should reach court decision? Would they be cases concerning public interests or individual rights? Do such cases reach court decision in fact?

As in previous workshops, we aim to discuss and challenge the common belief that there is too much litigation in courts around the world (see Galanter, “Reading the Landscape of Disputes”; Lieberman, “The Litigious Society”; Adler marks, ”The Suing of America”; Barnes, “The Litigation Crisis”; Bunch and Hardy, “Re-Examination of Litigation Trends”; Sarat, “The Litigation Explosion”), and that the "right" cases do end up in court, by presenting facts and figures. We aim to investigate the severity of the problem, if such a problem exists its sources and its social price; we will also propose solutions to it. We will study the phenomenon, by comparing different legal systems and the methods each one has found to address the problem.

In terms of data and facts: we will discuss the definitions of the three core terms - “too much”, "litigation" and "litigant”. We will discuss the availability of data regarding the amount of litigation; the differences, if any, between Common Law and Civil Law countries; and the differences between civil and criminal law in this regard. As we have seen in previous workshops, diversity is a major topic: are there too many litigants or too few litigants from various specific groups when analyzed on the bases of gender, race, age, etc.? What does history teach us about this phenomenon? How did it develop? Is it influenced by social changes?

In terms of the sources of the alleged “too much litigation” or “too many litigants”, we will address these questions from a multidisciplinary perspective, including a societal and cultural point of view: are there litigious societies or cultures? Is the fact that in some societies there are ‘too many lawyers’, effect the amount of litigation? In what way? What is the role of legislators in creating more (or less) litigation? How does technology affect the number of litigations? What is the influence of court decisions` publication and availability to the non-professional public on the amount of litigation? What is the role of legal aid in this respect?

We know that people avoid courts for various reasons such as high court fees; fear of appearing in databases and religious-cultural reasons, we would also like to investigate, whether there is in fact “not enough litigation!” (. Will lowering legal expenses lead to more litigation? What is the role of specific kinds of litigants/litigation in creating too much litigation (Abel, The Real Tort Crisis—Too Few Claims); repeated players; “nudge” litigants; class actions)? What is the role of media in creating too much litigation? (Haltom and McCann, “Distorting the Law, Politics, Media and the Litigation Crisis”); What is the role of institutions in campaigning against “too much litigation”?

In terms of the consequences: we will try to understand the effects of “too much litigation” (or, in some case of not enough litigation) (Trubek et al., “The Costs of Ordinary Litigation”; Kritzer et al., “Understanding the Cost of Litigation”). Do too many litigants and too much litigation cause an overload in courts that prevents access to justice? Does “too much litigation” obstruct innovations (see, for example, Vemuri, “Will the Open Source Movement Survive a Litigious Society?”)? Does it delay desired social change? Or perhaps the anti-“too much litigation” campaigns leads to restrictions on claims and access to justice?

In terms of solutions: we will try to present new solutions to the various problems (perhaps we need to constrain litigation, law and lawyers (for example, Howard, “Life without Lawyers”; Rhode, “Too much law”)), and discuss the appropriateness and efficacy of the current trends in litigation (such as ADR; higher court fees; limitation on number of lawsuits) in solving the problems whilst taking account of issues caused by alternative dispute resoluti