Adversary Breakdown and Judicial Role Confusion in “Small Case” Civil Justice

I. INTRODUCTIONThis Article calls attention to the breakdown of adversary procedure in a largely unexplored area of the civil justice system: the ordinary, two-party case. The twenty-first century judge confronts an entirely new state of affairs in presiding over the average civil matter. In place of the adversarial party contest, engineered and staged by attorneys, judges now face the rise of an unrepresented majority unable to propel claims, facts, and evidence into the courtroom. The adversary ideal favors a passive judge, but the unrealistic demands of such a paradigm in most civil cases have sparked role confusion among judges, who find it difficult to both maintain stony silence and also reach merits-based decisions in the sixteen million cases involving unrepresented parties.1 In complex civil litigation, the role of the judge has been greatly enhanced to respond to the unique needs of cases with multiple parties and high public impact.2 This Article argues for a parallel framework to enlarge the role of the judge in the "small case" civil justice system.In the classic portrayal of American adversary procedure, parties and judges each have distinct and well-defined roles. Parties are expected to control investigation, define the issues at stake in the case, and present evidence and argument to the court.3 Judges, by contrast, serve as passive and impartial arbiters who weigh the parties' competing claims from a neutral perch. In an oft-cited metaphor, judges are like "umpires" calling balls and strikes-they make decisions based on the facts and theories advanced by the parties, but play no independent role in shaping the content or outcome of cases.4Though adversary theory continues to represent the guiding framework for criminal and civil cases, it is now widely recognized that the traditional depiction of the passive judge is incomplete. In "big"litigation-namely, cases involving multiple parties, far-reaching remedies, or matters of great public importance-an enhanced, and more active, judicial role has become the norm. In her seminal work, Judith Resnik discussed the rise of the "managerial" judge who is deeply involved in pre-trial discovery disputes, class certifications, and settlement.5 Likewise, Abram Chayes depicted a judge who plays an active post-trial role in public law cases, particularly in those that call for the restructuring of large public institutions such as schools or prisons.6 In addition, scholars have pointed out that appellate courts sometimes depart from adversary norms in furtherance of their important law development function.7 Where a case will bind a large segment of the American public, appellate judges might raise a legal issue sua sponte, or rely on extra-record facts, so as to ensure the issuance of a proper, and well-informed, statement of the law.8 Adversary departures are often justified as an appropriate response to the growing complexity of civil litigation as well as the courts' nowcentral role in public law enforcement.Beyond "big" or "important" litigation, however, adversary norms in the civil justice system are largely expected to operate in conformity with traditional notions. Consider a simple consumer case, in which New Bank sues Kathleen for $2,500 in credit card debt. In such a matter, none of the typical justifications for departures from adversary procedure exist. First, pre-trial proceedings are likely to be minimal. New Bank and Kathleen are the only two parties to the litigation, making it unnecessary for the judge to actively manage technical procedures such as joinder or class action certification. Second, the sole issue in the case-liability for the debt-is not complex and, therefore, the parties are unlikely to engage in extensive discovery requiring judicial intervention. Third, any court-ordered remedy can be privately enforced by New Bank, without the judicial monitoring that would be required in a large public law case. And last, the judge in the New Bank case primarily fulfills a dispute-resolution function, rather than a law development function, eliminating the need for the court to raise issues or facts not brought forward by the parties. …