There’s a guy in the house next to our office who financed forty slave voyages. That level of trauma is hard for me to grasp. I don’t care if your underwear was woolen and your Bloomberg terminal was a quill pen and parchment — you knew that was wrong. You don’t need modern hindsight to check your moral compass. He doesn’t live there anymore, given his 1700s business, but the rancor of his efforts lingers too close for comfort.
I don’t much like the rancor of the court system either. Consider this my courtroom confessional, in the spirit of the late Anthony Bourdain.
Like Lincoln urged, let filing a lawsuit be your last resort. Litigation is long, expensive, and justice — no matter how right you are — is often shopworn on arrival, if it’s delivered at all. (We do pretty well around here, especially with injury, salvage and marine insurance coverage claims, so these remarks mainly apply to the other civil disputes clogging dockets.)
Many judges are burdened with heavy caseloads. I suspect the weight of the criminal docket for judges must be tiring and soul-weakening. Setting aside the evil actors, destining those who made bad choices or got launched in the wrong direction to long stretches of prison time must be very hard. It’s not something I could do, and I’m kind of a hardass (in a friendly way).
The civil discovery process? Abused by the defense. That’s a fact. When plaintiffs try to unpack discovery abuses, the courts often don’t care. In my opinion, the courts see discovery disputes in civil cases as the coop cushion where the chickens are doing their business. It seems too often courts fail to grasp that a speedy docket — and justice — hinges on handling discovery disputes decisively, not punting. A discovery sanction or an order to produce documents or take a deposition moves the needle toward resolution. I’ve only seen one court system — the federal courts of the Southern and Eastern District of New York — handle discovery disputes with brilliance. Disputes are limited to two- or three-page letters from each side, and within days (not months), counsel receives a scrawled decision written askew on one of the letters. Quick and neat. Good or bad, at least the dispute is resolved without endless motion practice.
I knew an attorney who took a lot of depositions by phone. He didn’t care if witnesses were lying or getting coached because he believed in the jury. The jury is the system’s wildcard, the part that can’t be gamed. And for that duck hunting Arkansan lawyer, the jury got him results and he just scrabbled together the basic evidence and put it (and his strong, Southern oratory) in front of the jury. It worked. We need to do more of that around here.
Which brings me to plea deals and civil settlement offers. With plea deals, the stack is loaded against the defendant — thirty years or take the six we’re offering. That equation interns the innocent because who among us would roll the dice? Civil settlements echo this: after years of litigation, the insurer finally offers real money. Sure, you’ve wasted years, but will the injured plaintiff risk a jury’s whim or take the money? Time erodes scars, and the insurers know it. The system is gamed to wear the plaintiff down. It takes creativity, commitment and courage to turn down seven figures and seat a jury.
I don’t have answers. I wish courts focused more on discovery disputes and legislators passed better laws instead of pretending tort reform is needed. For instance, insureds should recover attorney fees and costs when insurance companies are forced to cover losses. I wish there were more jury trials. Is there room for AI? I think so. I suspect that in my lifetime (assuming I’ve got another ten to fifteen years), AI will invade the judicial arena. I hope so. It could level the playing field.
Consider this: two people with the same maritime injury could recover different sums (or DNF versus getting a bullet) depending on where the harm occurred. That’s crazy. Strategic AI use might calm these waters and yield more consistent, equitable results.
For now, I’ll keep pulling the oar, representing injured mariners with the vigor needed to push back against the defense bar and their legions. As frustrating as this work can be, I like it for its Robin Hood aspect. We definitely take from the coffers and give to the less fortunate, and for me, that’s like downing a strong espresso.
As for my neighbor, it would’ve been fun to file suit against him. Fun knowing that even if he hid some parchment, we’d still win. Fun knowing we were rowing in the right direction of history. Fun helping those tortured souls.
Maybe I should write a back of the house perspective on the civil court system. A book that lays bare what the civil court system does well and what it doesn’t.
Underway and making way. ■
John K. Fulweiler, Esq. is a Proctor-in-Admiralty representing individuals and small businesses in maritime matters including personal injury claims throughout the East and Gulf Coasts and with his office in Newport, Rhode Island. He can be reached at 1-800-383-MAYDAY (6293) or john@saltwaterlaw.com, or visit his website at saltwaterlaw.com.
