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The Common Flaw

Needless Complexity in the Courts and 50 Ways to Reduce It

A sitting judge makes the compelling argument that we should simplify lawsuits to create a more humane and accessible legal system.
Americans are losing faith in their courts. After long delays, judges often get rid of cases for technical reasons, or force litigants to settle rather than issue a decision. When they do decide cases, we can't understand why.
The Common Flaw seeks to rid the American lawsuit of this needless complexity. The book proposes fifty changes from the filing of a complaint in court to the drafting of appellate decisions to replace the legal system’s formalism with a kind of humanism. Thomas G. Moukawsher calls for courts that decide cases promptly based more on the facts than the law, that prioritize the parties involved over lawyers, that consider the consequences for the people and the public, and that use words we can all understand. Sure to spark an important conversation about court reform, The Common Flaw makes the case for a more effective and credible legal system with warmth and humor, incorporating cartoons alongside insightful reflection.

240 pages | 28 halftones | 6 x 9

Brandeis Series in Law and Society

Language and Linguistics: Language and Law

Law and Legal Studies: Law and Society, Legal Thought

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Table of Contents

1. Prefer humanity to needless complexity
2. Rethink ninety percent of the typical complaint. Make it about key facts, not law
3. What if a single motion addressed basic pleading and proof deficiencies?
4. It’s better to decide cases once. Use agency remands sparingly
5. Reconsider standing challenges. They invite more lawsuits
6.Reduce fighting over subject matter jurisdiction. The unheard will not remain unseen
7. Order discovery when a case begins. Police it without written motions
8. Creatively manage complex cases. No case should be too big to try
9. Mediate, but don’t delay the case for it
10. Streamline trials: They’ll be more final, more credible
11. Directly involve judges in jury selection
12. Increase juror numbers and diversity with remote jury trials
13. Question the Number of motions in limine
14. Most exhibits prove undisputed facts. Do we need them?
15. Actively oppose cumulative and time-wasting testimony
16. Is too much expert testimony discrediting experts?
17. Consider common sense first in family court
18. Introduce time clocks to encourage efficient trials
19. Needless objections annoy judges and jurors
20. Make a point, not a muddle, with prior testimony
21. Punish misconduct when it happens rather than in a separate proceeding
22. Cross examine crisply, crushingly, or not at all
23. Humanize overstuffed, bewildering jury charges and interrogatories
24. Save time in court trials by substituting longer closing arguments for post-trial briefing
25. Keep cases in the hands of a single judge from start to finish
26. Speed cases to trial with judicial administration instead of slowing them down
27. Accelerate and simplify justice with technology
28. Should virtual proceedings be the rule?
29. As a judge, prefer the model of a village elder
30. Cases are better resolved on their facts than on the law
31. Deploy canons of construction sparingly—only when they have a compelling reason to exist
32. Rarely resort to legislative history. It’s often unreliable
33. Reduce distractions by identifying fallacies
34. Don’t blur laws to conquer facts
35. Are endless consumer disclosures doing us any good or are they just low hanging fruit?
36. Reduce judicial testiness: Use multi-point tests only when each point has meaning
37. Similar sounding cases aren’t precedent
38. The best legal writing is literature, not formula
39. Not much is gained by plodding through the history of the case and universally familiar standards
40. Junk the jargon
41. Needless detail is…
42. The best appellate decisions deeply and plainly explain the law
43. Is there a home for law clerks somewhere between busy worker and junior judge?
44. Appellate courts should reform rusty rules
45. The best trial court decisions get straight to saying who wins and why
46. Why obscure our basically honest courts in a needless cloud of complexity?
47. Can lawyers thrive under the same old business models?
48. Can courts reimagine themselves?
49. Can rethinking law clerking remake the future?
50. Recognize needful complexity and meaningful formality
51. Can steady courts mean a steadier country?
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