Waste in the appellate process

Cultural differences in litigation

A dear friend of mine once said that litigation occurs when two parties having serious personality defects disagree on something. The import of the comment was that, when people are reasonable, there is no litigation -- they accept settlement. Similarly, I have heard that often litigation results in an award not to the "better" party, but to one of two equally difficult parties.

During the course of my work at the court of appeals, and particularly because I am employed to process appeals where the law is settled (and identify appeals where the law is not sufficiently settled), I review a number of very unmeritorious appeals. The most painful cases to review are those where a party refuses to accept an outcome or decision in a situation, and fights against reason and the law to get the result reversed. They go through as many options for redress as are available, and in the American system, there are many levels.*

In some cases, I understand that appeals having no legal merit nevertheless make sense to the litigant: If you would be removed from the country if you were not otherwise pursuing avenues of appeal, and you really wanted to stay in the country, I would expect you to file whatever you can. By the same token, I understand the filmsy arguments of incarcertated persons, who often write pro se appeals (without the benefit of a lawyer), because it is a common failing of humanity to interpret information as favorable even when it isn't.**

Beyond criminal litigants, however, I am least pleased with litigants who bring unmeritorious claims that are clearly blind to the application of the established law to (reasonably) settled facts. Either because litigants lack adequate legal advice regarding the merit of their claims, or because they are stubborn and ridiculous in the face of such advice, appeals seem to be submitted as if relief were awarded by lottery. Ah yes, let's see ... this one: 1 million dollars for you. Thanks for playing and paying your filing fee.

All this means that I am paid by the government to spend my days sifting through many wacky claims. I often find myself reporting to the judges of the court that despite the litigant's claims to the contrary, the law does not permit them to: get out of federal prison; avoid paying taxes; keep their job after violating the law and company policy several times; or stay in the country after entering it several times illegally and lying about it under oath. And after I have moved on in my career, the members of this office will continue to process appeals just like these.

The indelibility of this system irks me. In short, American law and its various levels of appeal work to prolong the acceptance of an outcome that a litigant does not like, but must ultimately accept. And I do not like litigants to be so strung out. I wish the system would move people out of denial sooner.

In going to London, I expect the culture generally encourages the average litigant to move from denial to acceptance sooner than here in the states. My hunch is that people are told to "get over it" by more people earlier in the process of dispute resolution, and so good legal bureaucrats like me are less needed. I wonder, also, if English people have less confidence in the law providing them justice, or if they simply take more responsibility for things not going their way.

Finally, I am curious about the barrister's role in deflecting unmeritorious appeals. I would expect it to be quite strong, and the division between barristers and solicitors quite helpful.

* My critique on the number of levels is a post for another day.
** Additionally, I don't expect people whose conduct ran afoul of the law to fully understand the law or its consequences. I suppose this is part of my naive belief that no one who understands the law's penalties, and the realities of incarceration, would ever opt to flout it.