UCLA Law School and the Rand Corp. launched an alliance Friday to study secrecy in the nation's civil justice system.
Attorneys and legal scholars spent the day at a conference at the law school debating just how much secrecy there is and whether any of it is justified.
"This subject could not be more timely," said UCLA Law School Dean Michael Schill. "Transparency in our civil justice system is incredibly important for its legitimacy." At the same time, he said, privacy trumps transparency on some occasions.
Michael Rich, Rand's executive vice president, expressed dismay that in recent years the civil justice system has seemed to be moving away from public scrutiny, with fewer trials being held, more private judges operating outside the normal court system and a proliferation of cases settled with confidentiality agreements.
"If the system is more opaque, it makes policy analysis more difficult and makes the system more susceptible to ideology," Rich said.
Los Angeles plaintiffs' lawyer Tom Girardi talked at length about the difficulties of deciding whether to settle cases confidentially. Girardi said he is troubled by a confidentiality agreement he signed 25 years ago on behalf of a boy who alleged he was molested by a Catholic priest. As a Catholic who attended Catholic schools for his entire education, Girardi said he had doubts about the client's claims at the time.
Then when the massive pedophilia scandal in the Catholic Church came to public light, Girardi said he learned that the priest had molested 17 kids. "My confidentiality agreement" probably had negative consequences for all of these kids, Girardi acknowledged.
The rate of resolution by trial for federal court cases in 2002 was less than a sixth of what it was in 1962, according to an initial description of the project handed out at the conference.
Speakers also discussed just how big an effect private judging, also known as alternative dispute resolution, is having.
Kenneth R. Feinberg, who served as the special master of the federal September 11 Victim Compensation Fund, scoffed at the idea that private judging "is going to replace the civil justice system."
But U.S. District Judge Terry J. Hatter Jr., who has been on the federal bench in Los Angeles for nearly 30 years, said, "I do worry. I see a two-tier system," in which well-heeled litigants opt for private judging rather than waiting for their cases to be heard in federal courts.
Girardi said he uses public trials as well as private judges. But Hatter countered: "Most people can't get to you. Most people who use Danny are not economically deprived," he said referring to Daniel Weinstein, a highly regarded private judge with JAMS in San Francisco, who also was a panelist Friday.
Cynthia Lebow, who practices law in Westwood, urged representatives of Rand and the law school to come to grips with the problems ordinary consumers face when they get involved in a dispute with a large corporation.
"Virtually every time you go to a doctor now in California, you are asked to sign a mandatory arbitration agreement" when you go in for services, Lebow said. "Most of the time you don't even know it. You are signing a bunch of papers on a clipboard and you are being put into a system with no transparency and tremendous ethical issues."
California Chief Justice Ronald George delivered the keynote address at lunch. He said "courts increasingly have recognized that secrecy should be kept to a minimum."
In the past decade, the state Judicial Council has adopted rules that "expressly presume that the press and the public are entitled to court records," he said. "Any sealing of court records must be narrowly defined."
On the other hand, he noted that a crumbling infrastructure hurts public involvement in the court system. He said a number of California courthouses are in terrible condition.
Without better conditions, George said, "It is difficult to imagine a court system that the public can know, understand and appreciate, or that by any measure can be effectively transparent in its operations."