Legal News

Court Funding: Is It Time for Means Testing?

By Brian Harris

By Anthony S. Volpe
Special to the Legal

Because my litigation experience is mostly in federal courts, I write this with them in mind. However, I do not confine the following thoughts to just IP matters, and think the issue is universal. Although I do not claim to have the answers, I do think it is time to begin consideration of means testing.

It is no secret that the courts continue to be squeezed between increasing caseloads and ever-shrinking budgets. Since most of the tax-paying public does not have extensive contact with litigated matters, the courts are often viewed as dealing with criminals or delinquents who are trying to hit the personal injury lottery.

In reality, the courts deal with many issues that touch on the commercial life of this country. As such, the majority of larger cases involve commercial disputes. This is clear from the judicial effort and taxpayer dollars that are spent every year in a judicial system handling multi-million or -billion dollar disputes.

Since the combatants in these cases spend huge sums on their legal teams on the premise that they have value assets at risk, does it work an injustice to have them pay more for access to the courts?

What if the fee schedule for filing was based on the type of matter and the number of counts or claims? As single claims for breach of contract may be $X, add an unfair competition and it is $1.5X, and some theft of trade secrets and go for $2X.

The same method could be applied to filings like protective orders. An agreed order is free, motions are $Y. For discovery, remove the current limits on written discovery and depositions, but involve the court in a motion to compel discovery or issue a protective order, and it will cost $Z.

By charging all parties for their filings, the court is not taking sides, and the parties feel some of the pain inflicted on the courts by papered cases. There are surely some causes that should be excluded and some things that should come with the initial filing fee.

It cannot be disputed that high-stakes cases -- like pharmaceutical, telecommunication and class action disputes, where teams of lawyers and experts, both technical and financial, are fighting for every inch or advantage -- consume more judicial time and effort than a one-count complaint for a breach of warranty, unless it involves pharmaceuticals and telecommunications.

This is not to suggest that cases involving pharmaceuticals, telecommunications and class actions are any less meritorious than any other case or those companies are any more litigious. This only suggests that the time and effort spent by the judicial system in resolving such matters is greater than most, and those companies generally have greater assets and a better ability to pay.

Anthony S. Volpe is a founding partner of Volpe& Koenig. He can be reached at TVolpe@volpe-koenig.com.

Full post as published by The Legal Intelligencer Blog on March 16, 2011 (boomark / email).