Procedural justice in pre-trial, civil litigation

This study attempts to fill a "hole" in empirical studies of courts by surveying litigants both just before and right after the trials or settlements of their civil cases. Except in felony and small claims courts, no studies have compared the post outcome attitudes of actual litigants with their pre-trial attitudes. The procedural justice factors of voice, control over the disputing process, and fair and neutral decision makers are important to disputants, but the study found that these notions were only weakly present in the litigant surveys and lawyer interviews conducted and the case files studied. Litigants themselves had little or no voice and only limited voice through their attorney drafted pleadings and motions. Furthermore, the attorneys interviewed uniformly agreed that litigants had very little understanding of civil litigation. In four of the eight surveys and only four of the one hundred case files studied did litigants invoke their right to an adversarial jury trial. Mediation was found to actually be a form of settlement facilitation and merely an aspect of negotiations. Of the case files studied, 37 percent were settled by unaided negotiation and 25 percent by mediation. The "myth of sure justice" by strict adherence to procedural rules leading to open and voluntary, fully informed settlements or trials by wise, neutral judges is deconstructed and replaced by the reality of lawyer dominated and conflicted, bilateral bargaining and "the sporting theory of justice." Case management rules constrain litigants to settle rather than try cases. The diminution of adjudicative functions of the courts in favor of bureaucratic, administrative processes seemed to leave open the possibility for the "frustration effect," which could threaten the legitimacy of legal institutions and needed, voluntary compliance. Reliance only upon objective concepts of procedural justice, such as due process and the rule of law, while ignoring subjective opinions of fairness held by the millions of disputants involved in civil cases every year can lead to lower legitimacy ratings. The link between perceptions of fairness and legitimacy and voluntary compliance ought to be a matter of concern to court administrators, jurists, and legislators.