Shalom Christian A. Gaerlan 1S LEGRES

A SPEEDY TRIAL AND COST OF LITIGATION IN PYRAMID SCAM CASES

This paper aims to analyze the litigation process and will mainly focus on pyramid scam

cases. It will analyze the costs of litigation and its effects to the plaintiffs' welfare, which

includes their income and wealth when the process undergoes delay. The economic welfare of

litigants is greatly affected by the delays of their filed cases, they allot a big portion of their time

for any event related to their cases for example hearings, pre-trials, consultation with lawyers etc.

instead of developing their economic welfare using the time they have, they weren’t able to do so

because they have to pursue the case. The time they allot for any case related event can be use to

something that is more useful for them and develop their economic welfare. Part 1 of the paper

will talk about mainly of what a pyramid scam case is. The second part of this paper will talk

about how our judicial system in the Philippines, delays in cases and cost of litigation. The last

part of this paper will discuss the remedies or even solution to the relationship of speedy trial and

how it will minimize the cost of litigation.

With the rapid economic growth and development that our country has been

experiencing, Filipinos nowadays are thinking of ways of investing their hard-earned money

through traditional and non-traditional investment schemes1. One of the investment schemes that

is now prevalent is the Pyramid Scheme. Due to the increase of such schemes in the country, the

rise in cases filed against its perpetrators are being brought to court and reported to the proper

authorities almost every year. As a result of numerous cases being filed, delay in the process of

prosecuting such cases in the judicial courts in the Philippines is inevitable. One notable pyramid

scheme in the Philippines is the MULTITEL Pyramid Scam. Rosario Baladjay, the perpetrator of

this pyramid scheme, was considered as the “Pyramid Scam Queen” because of the large number

of investments that were put up in the said pyramid scam. She used Multinational Telecom

Investors Corporation (MULTITEL) as a decoy to dupe people into investing their money in her

company, wherein the company offered high returns on investment and varied interests

depending on how many days or months a certain investor puts money into the company as well

as the amount they give. They also gave commissions to people who could bring in recruits.

1 “Of Ponzi and Pyramid Scams: Why do Pinoys keep falling in the same old trap?” by Cuevas-Miel (2012)

According to the Inquirer News1, there are about 950,000 individuals who invested in the

MULTITEL scam. This includes celebrities, government officials, military officers and senior

police. After the company collapsed, investors of the company filed charges, such as fraud and

syndicated estafa, against Baladjay as well as her other employees. Baladjay was convicted last

2008 and was imprisoned in Muntinlupa City.

When victims find out that their hard-earned money has been taken by these scammers,

the victims have no recourse but to fight back by filing cases against the perpetrators. However,

it takes a long time to hear these cases according to an article2 and the reasons behind the causes

of delay in the process of prosecution of cases filed in relation to these investment scams have to

be examined and amended so that justice will be served on time for the benefit of the people who

were deceived and victimized by the investment swindlers. Asuncion pointed out that delays are

part and parcel of the adjudication of criminal cases. The delays on cases are built in the judicial

process and in the event that it is eliminated, the whole system will collapse. Delays are

significant to the judicial process and allowed to exist because it ensures the “due process of

law”3. Furthermore, they think that some influential people are involved in the delays of some

cases, that they play a significant role in manipulating the dispensation of justice since they are

powerful and influential people.

In accordance to this, Pagunsan stated that when one seeks the aid of courts, he/she is

certainly faced with the problem of how much he/she is expected to gain as cost.3 The cost of

litigation would involve private costs such as the resource cost and opportunity cost, these two

are essential to analyze the cost of litigation made by the complainants/plaintiffs. Resource cost

involves actual expense on the part of the litigant. The money spent on expenditures for judicial

and legal fees, attorney’s fees and miscellaneous expense. Opportunity cost on the other hand

represents the loss of income for time devoted to the prosecution or defense.

12 “Appellate court reduces jail term of “pyramid scam queen”: Rosario Baladjay” by Ramos, M. (2012)2 “Delays in the adjudication of criminal cases: A case study on people of the Philippines vs. Mayor Antonio Sanchez” by Asuncion, F. (1997)3 “The economic approach to litigation: A case of Philippine judicial procedure.” By Pagunsan, S.R. (1994)

PYRAMID SCHEMES

The paper of Detlev Krige1, which is considered as the in-depth study of pyramid

schemes in the popular economies, is about the rise of get-rich scheme in South Africa, what it

means for the economy and how it attracts the African people. According to Krige, the rise of

occult economies is due to the South African economic policies. Also, it is due to the widening

gap of the rich and poor and of inequality of the social status of the people. Citizens also want to

find ways of getting rich despite financial illiteracy. One of the policies that the South African

government conjured was to require banks to attract people to have accounts to in the banks in

South Africa. The government think that it is their right and also to show the international market

that they could compete financially. Further, the people in the government detected that there is a

lot of money circulating in the market, which the schemers also knew and used this situation to

attract the people into investing in their scams. The author said that global financial system relies

on this ‘mysticism’ (or lack of knowledge of how it works) to employ millions of experts to act

as brokers/intermediaries and translators between the complexities of finance capitalism and the

money of ordinary people who don’t understand how the system works. The author also

concluded that the desire for quick money has become part of the general culture structure of the

South African society and economy.

The understanding of the investors’ decision-making processes, their perceptions of the

fraud, and the mechanics of the fraud through interview of victims who specifically lost millions

are the main issue of Wilkins2. There were issues that were examined in the investor interviews

like how the investors learned about the investment, did they have receive any professional

advice, what are the investment characteristics, what influenced their decision to invest, what did

the investment promoter use as a means of convincing them to invest and their overall reflections

on their personal experience. The interviews of the author revealed a fraud with the following

characteristics of older educated victims; a credible story that travelled by word of mouth among

people who knew each other; demonstrated returns over several months; low pressure (no

urgency to invest); and a “good guy” promoter who did facilitation or processing works.

Furthermore, one of the problems that the investors faced is that they fear that they will no longer

receive the investments that they have been fighting to get.

1 The meaning of pyramid schemes in the popular economies. by Detlev Krige. 2 Understanding a Ponzi Scheme: Victims’ Perspectives. By Wilkins, A. et al. (2012).

JUDICIAL SYSTEM

Justice, according to Andrew Heywood1

“Justice can be understood in a procedural sense to refer to the rules which guide the

legal process, and in a substantive sense to refer to the outcomes or contents of law. The issue of

justice lies at the heart of questions about legitimacy and orderly existence, determining whether

citizens are willing to accept the law as binding.”

It is not the function of the judiciary branch to define what justice is, but rather they have

the function of seeing if an individual acquires justice2. In the Philippines, most Filipinos suffer

the many frustrations when seeking justice; the delays in the resolution of cases are really long

that in some cases they outlive the complainants, the accused or even the hired lawyers before

they are resolved.  The reasons behind the causes of delay have to be examined because justice is

not really given out properly and sometimes miscarried. Because of these delays many are being

deprived of justice, whether they are victims of the crime or the accused who is detained for the

meantime although he/she is not yet proven guilty. Also a lot have already lost their trust to the

judicial system and that their time, effort and most specially their money are most of the time go

to waste1. In accordance to this, Pagunsan3 stated that when one seeks the aid of courts, he/she

certainly faced with the problem of how much he is expected to gain as cost. The cost stated is

produced by the court system itself. For example, in pursuing a lawsuit, it is important to engage

in a service of an able and competent lawyer in order to obtain the remedy, which the courts

provide. Besides the fees paid to the hired lawyer, the complainant is obliged to actually pay for

filing fees and sometimes judicial bonds.

This question on whether or not a citizen acquires justice in a country is not only a

judicial issue but can also be deemed as a responsibility of government as a whole2. There are

several reasons why the misadministration of justice is extensive in the Philippine Judicial

System. Sometimes political connection is more important rather than competence and integrity

because it becomes the primary basis of appointing judges in the judiciary. The lack of qualified

judges worsen the delay in the disposition of cases and in the instance where cases are disposed

1 Delays in the adjudication of criminal cases: a case study on people of the Philippines VS Mayor Antonio Sanchez by Barredo, M. E., &Melo, J. C. (1997). Metro Manila, Philippines: De La Salle University.2 The reforms initiated and instituted in the judicial system since 1984 to the present by Abad Santos, W. (1996).3 The economic approach to litigation: A case of Philippine judicial procedure by Pagunsan, S. R. (1994).

by these judges, the complainant thinks of it as if they were resolved with bias and prejudice.

Another point raised by this author is that some lawyers tend to delay the proceedings because

they were paid in a per appearance rate.

On the other hand according to Asuncion1, delays are part and parcel of the adjudication

of criminal cases. The delay on cases is built in the judicial process and in the event that it is

eliminated, the whole system will collapse. Delays are significant to the judicial process and

allowed to exist because it ensures the “due process of law”. But then, Abad2 also think that

some influential people are involved in the delay of some cases, that they play a significant role

in manipulating the dispensation of justice since they are powerful and influential people.

According to Bailey2, “descriptive studies attempt to describe a phenomenon in detail or

to fully describe what happened in a given situation or phenomenon.” Descriptive approach is

more appropriate to use in discussing the judicial reform programs that Abad Santos (1996) was

talking about in his thesis. Through this approach, he was able to illustrate the problems facing

the Philippine Judicial system. Through the descriptive approach of research design, he acquired

the knowledge of what the Philippine government as a whole did to solve the past and present

problems of the judicial system during that time.

Pagunsan3 on the other hand didn’t specify the research design he used but rather he

illustrated it in a flowchart using the principal elements of cost/delay and uncertainty. The data

gathering technique used by the authors were pretty much the same, they conducted first hand

interviews and all made interview questionnaires. They also made use of the available data from

government agencies such the National Statistics Office (NSO) and the Supreme Court.

DELAYS IN CASES

According to Villarama Jr.4, he presented how delays in the Philippines are being

performed. According to him,

“One characteristically Filipino trait we are not exactly proud of is the habit of

procrastination and delay. Understandably so when "Filipino Time", "Mamaya na" and "Saka

na bahala na" translates into all kinds of manifestation of inefficiency in government such as red

tape and bureaucratic fiascos. Delivery of government services nationwide suffers from constant

1 Delays in the adjudication of criminal cases: a case study on people of the Philippines VS Mayor Antonio Sanchez by Barredo, M. E., &Melo, J. C. (1997). Metro Manila, Philippines: De La Salle University.2 The reforms initiated and instituted in the judicial system since 1984 to the present by Abad Santos, W. (1996).3 The economic approach to litigation: A case of Philippine judicial procedure by Pagunsan, S. R. (1994).4 Culture of Delay by Villarama Jr., M. S. (n.d.).

delays and the judiciary is no exception.”

He explained the “Zero Backlog Project” of the Court of Appeals. The CA averages a

monthly disposal of 850 decisions or about 13 to 14 cases per justice. About half of the number

of Justices accomplished more than the minimum requirement of 12 cases. From a total of

11,343 cases submitted for decision in 2001, the CA has considerably reduced its backlog to

9,387 cases as of August 31, 2007. Also, there is a “One Stop Processing Center” which aims at

making follow-up and inquiries on status of cases easier for litigants and their counsel. The

judicial records division being the frontline of CA’s public service, the problem of delay is a

matter of continuing for that committee in focusing to the possible ways of improving current

systems and procedures in receiving, docketing, records keeping and archiving. He concluded

that there is indeed much hope in the sincerity and determination on the part of both members

and employees of this court to continuously improve the dispensation of justice and prevent

needless delays.

“As we unite efforts in heeding the call for judicial reforms, I strongly believe the

"culture of delay" visualized in the "slow as turtle" image of the Philippine judiciary, will soon

be a thing of the past.”1

In the study of Professor H. Zeisel2, he observed the sluggishness of case-flow,

"Delay in the courts is unqualifiedly bad. It is bad because it deprives citizens of a basic

public service, it is bad because the lapse of time frequently causes deterioration of evidence and

makes it less likely that justice be done when the case is finally tried; it is bad because delay may

cause severe hardship to some parties and may in general affect litigants differentially; and it is

bad because it brings to the entire court system a loss of public confidence, respect and pride. It

invites in brief the wisecrack made a few years ago in a magazine editorial, 'Okay, blind, but

why so slow."

Also the observation of J.B Jennings3 was ought to pin point the subject of civil delay,

“Congestion and delay in courts throughout the country threaten to strangle our system

of justice, for as delays increase, the innocent who cannot afford to make bail suffer longer in

jail, the guilty who are released pose greater threats to society, and the deterrent value of speedy

1 Culture of Delay by Villarama Jr., M. S. (n.d.).2 "Delay in the Court" Greenwood Press, Publishers, Westport, Conn. by Zeisel, Kalven, & Buchholz (1959)3 "Evaluation of the Manhattan Criminal Courts Master Calendar Project," by J. B. Jennings. Phase 1, Feb. 1. June 30, 197 1,

(New York Rand Corp. 1972), p. 111

justice is lost. The resultant pressures to dispose of cases more and more quickly lead to still

other wrongs; less and less attention is given to each case, and greater reliance is placed on the

disposition of case through 'Plea Bargaining' and the likelihood of injustice increases."

FACTORS OF DELAY

We have a system in our country of causing delays of cases because of the absence of the

prosecutors and the reality of court cases taking time to process. In order to abolish this system,

the researchers want to know first the cause and eventually relate it to their topic. The Supreme

Court has prescribed in the Revised Rules on Criminal Procedures (Rule 110-127) the

aforementioned time frame for the lower Courts to comply. The time that Court has to dispose of

a case will depend on a number of things. That is, time which parties are brought within the

jurisdiction of Courts; to enable the parties to fully express to the Court their basic theories of the

case; to enable the parties to present evidence in support of their averment; for the court to

consider the pieces of evidence after trial, and after disposition of the case, for the party

adversely affected by a judgment, to seek modification or reversal thereof by appeal or

otherwise; for the appellate Court to be informed of the parties’ positions and proofs, study the

case and decide it. The law prescribed periods for disposition of cases. However, it is not strictly

to be adhered if it were meant to violate the due process of law guaranteed by the Constitution.

As long as the delays are justified, there can be no complaint about violation of the speedy

disposition of cases.

In arraignment, the defense is given ten (10) days to file their counter affidavit, which

may result to delay and suspension thereof. On the pre-trial, judges could grant postponements to

both parties to further gather their pieces of evidence, which again is another cause of delay. The

trial proper is the most crucial part of the proceedings. This is the part wherein both parties have

to present their respective witnesses, documents, and most of the time; the parties have to

consider the availability of their witnesses, the conflict of schedules of the counsels themselves,

or even delaying tactics, which are all factors in the delay of the trial period. Nonetheless, the 3-

months’ time frame, that is prescribed by the Supreme Court in The Rules of Court in the lower

courts, commence after that the complainant/petitioner has submitted comment/opposition to the

formal offer of evidence of the accused/respondent, and it is only then that the Court will

consider that the case as submitted for decision. After the pre-trial conference, the court shall

issue an Order reciting the actions taken, the facts stipulated, and the evidence marked. This

Order shall bind the parties, limit the trial to matters not disposed of, and control the course of

the action during the trial. This however can be modified by the Court to prevent manifest

injustice, which means, something which is 'obviously unfair' or 'shocking to the conscience.' It

refers to an unfairness that is direct, obvious, and observable.1

EVIDENCES EVIDENCES

1 Delays in the adjudication of criminal cases: a case study on people of the Philippines VS Mayor Antonio Sanchez by Barredo, M. E., &Melo, J. C. (1997). Metro Manila, Philippines: De La Salle University.

Submission of decision

COST OF LITIGATION

Cost is incurred in the course of litigation and it is already built into the litigation process.

The cost of litigation is consisted of two costs. The resource cost and opportunity cost1.

Resource cost or accounting is that which involves actual money outlay on the part of the

litigant. It consists of judicial fees and legal fees, attorney’s fees and miscellaneous expense.

Opportunity cost on the other hand represents the loss income for time devoted to the

prosecution or defense of the case by the litigant.

The following consists the Resource cost:

1. Judicial Fees is a function of the nature of the action and the relief sought. Shall be

measured in its applicable value fixed by law corresponding to the amount or value

appearing in the complaint.

2. Attorney’s Fee is a function of the type of lawyer retained for the purpose. shall be

measured on the active time devoted by the lawyer to the case. Time devoted would be

computed by:

a. Preparation of complaint/petition (filed in RTC) = 8 hours

b. Preparation of memorandum/brief = 8 hours (1 in CA, 1 in SC)

c. Preparation of other pleadings = 3 hours (minimum of 3 hours in RTC, 1 in CA, 1

in SC)

d. Attendance at court proceedings

i. Pre-trial = 1 hour per setting (a minimum of 2 settings)

ii. trial = 1 hour per setting (a minimum of 8 settings)

e. Interview or Consultation with client = 10 hours

(Sub-total of (a) to (e) = 59hours)

1 The economic approach to litigation: A case of Philippine judicial procedure by Pagunsan, S. R. (1994).

f. Others (consisting of follow ups for delay) = 1 hour per year ( a fraction of 6

months being considered as one whole year.

3. Miscellaneous Expense is a function of the amount paid as attorney’s fees. Shall be

measured as a fixed percentage of Attorney’s Fees to the lawyer for the period covered

and shall be attached 10% thereof.

What constitutes the opportunity cost?

Opportunity Cost is a function of the income of the litigant. It shall be measured in

absolute values on the basis of the active time devoted to the case by the litigant.

The following shall guide in the computation of opportunity cost:

To assess the pyramid scam case using an economic approach adapting the framework

used by Pagunsan1 showing the total cost of litigation of the plaintiff where the cost shall be

expressed in the following terms:

Total Cost = Resource Cost + Opportunity Cost

Where:

Resource Cost = Judicial Fees + Attorney’s Fees + Miscellaneous Expenses

Each component is comprised of the following:

Judicial Fees = (legal fees and judicial bonds)

Attorney’s Fees = (Acceptance fee, success fee, appearance fee, etc,)

Miscellaneous Expenses = (Photocopying of documents, notarial fees, cost of transcript

of stenographic notes, own transportation expenses, publication expenses, mailing expenses)

Opportunity Cost = (conference with lawyer, attendance at trial, waste of time due to

anxiety, etc.)

When one seeks aid of courts, he or she is inevitably faced with the costs he will incur

and how big it can get as the litigation continues. Plaintiff suffers a direct loss which he or she

attribute to an act of the defendant, he or she seeks the protection of the court of law and

therefore incurs cost. The plaintiff institutes the case in the expectation that he or she would

recover not only the thing or amount sued upon but also the consequential damages to include

1 The economic approach to litigation: A case of Philippine judicial procedure by Pagunsan, S. R. (1994).

the cost of litigation and the loss for being deprived of the thing if not the loss in purchasing

power of the amount sued upon while the case is pending litigation. It is also important to

measure not only the cost of litigation but as well as the uncertainty in litigation.

The cost of processing a case according for example a murder case in North Carolina, is

more expensive to state tax-payers than noncapital litigation. Zealous advocacy is a source of

increased length and the cost of proceedings goes high. An enhanced constitutional and

legislative provision unique to capital litigation makes the adjudicatory process more expensive.

The objectives of this article provide estimates of the cost of capital adjudication that will be

useful to legislators and criminal justice officials. The estimates are intended to help inform these

decisions and predict their consequences for the utilization of resources in the criminal justice

system. They used the constitutional and statutory framework that shows the legal doctrine of

“death is different” as a punishment in the fact that capital cases tend to be litigated more

thoroughly than other serious murder cases. The “cost” presented here is defined as opportunity

cost of extra resources required to adjudicate capital cases and also the additional resources

consumed by these cases. It explains not focusing on death penalty but the imprisonment cost1.

Also unit costs is presented where they use the standard accounting procedure to estimate

the unit cost of key resources, time of attorneys in the offices, public defenders, appellate

defender and attorney general. The value of an hour of an attorney’s time includes the prorated

position cost together with the appropriate load from support staff and general admission. They

used data gathering of different cases in six prosecutorial districts supplemented with data on

specific cases in other districts. They found out that the trail court cost of murder trials is $84

thousand and a capital trial that ends with the guilt phase of about $57 thousand. The estimates of

extra costs in the trial courts per death penalty are $194 thousand. Using the two year period of

1991-1992, they collected a total of 94 defendants tried trials that have cost the state and

countries about $4.3 million less if they had proceeded non-capital. The cost to the state will total

about $2.8 million for appeals and post conviction proceeding and $1.4 million for retrials and

resentencing proceedings ordered by the appellate courts. Combining all the figures, they

concluded that the overall extra cost on the order of $8 million or an average of $4 million per

year.

1 The economic approach to litigation: A case of Philippine judicial procedure by Pagunsan, S. R. (1994).

REMEDIES AND SOLUTION

Article VIII, Section 15 of the Philippine Constitution provides the maximum

period within which cases or matters must be resolved by the various courts. The period for the

Supreme Court to resolve cases is 24 months, 12 months for lower collegiate courts maximum

and 3 months for all other lower courts. The period is to be counted from the date of submission

of the case of matters for this purpose upon the filing of the last pleading, brief, or memorandum

required by the Rules of Court or by the Court itself. Also there is the Republic Act No. 8493

which is “An act to ensure a speedy trial of all criminal cases before the Sandiganbayan,

Regional Trial Court, Metropolitan Trial court, Municipal Trial Court, and Municipal Circuit

Trial Court, appropriating funds therefor, and for other purposes”. This act is known as the

“Speedy Trial Act of 1998” according to Section 1 of the republic Act No. 8493

Case Flow Management

The basic idea of caseflow management is that the court controls the pace of litigation by

establishing meaningful events, setting scheduled dates and timeframes for pre-trial events and

trials accompanied by strong leadership, commitment to a shared vision, effective

communication, and active management of appropriate time standards and goals as well as the

continuous control of their accomplishment by monitoring and measuring actual performance1.

McWilliams2 define in his article that caseflow suggests “that cases should be viewed as moving

through a series of interconnected events such that overall case processing times, and cost to the

litigants, can be saved by reducing the unnecessary time between events, rather than by altering

or eliminating the events themselves.” The term “management” is intended to suggest that the

preferred approach to dealing with cases is to seek management solutions to case processing

problems.

According to the above definition of the caseflow management concept, the term can be

seen as a synonym for promoting the process effectiveness viewpoint and perspective in the

operations and management of court systems. Caseflow management is thus basically a term for

the application of very basic operations management and process improvement concepts to the

1 Can an Italian Court use the American approach to delay reduction? by Steelman, D., Fabri, M. (2008). The Justice System Journal, Vol. 29, No. 1, pp.1-23.

2 Setting the Record Straight: Facts About Litigation Costs and Delay by McWilliams M. (1992). Business Economics, vol. 27, No.4, pp. 19-24.

processes of courts of justice.

The project presented by Elepano1 she presented the case processing method called

effective case flow management (CFM) using a scheme called Differentiated Case Management

(DCM). These processes were inspired by the American bar Association’s Standard on Delay

Reduction that stated,

“From the commencement of litigation to its resolution, whether by trial or settlement,

any elapsed time other than reasonably required for pleadings, discovery and case events, is

unacceptable and should be eliminated.”

Court performances and case disposals in Philippine trial courts were presented. On

monthly caseloads of 346 cases on the average per court or in other words 14 to 15 cases per

calendar day. Cases that are affected due to time constraints create a horrible backlog of cases in

the end. She implemented the project with the help of the Supreme Court by selecting a project

site and creating a Committee to design the Case Management Plan and implement it. The CFM

handbook was described using a step-by-step VVFM process for both criminal and civil cases.

She used the American and Canadian Models on Caseflow and Differentiated Case Management.

Also, Tracking System was formulated by collapsing time frames for case events into reasonable

short to shorten case life and prevent or minimize delay. Simple cases would be assigned to Fast

Track to be disposed of in six month or less. In other cases that demanded judicial attention, they

were assigned to Complex Track with a disposal time of two years. Neither simple nor complex

cases were assigned to Standard Track with a disposal time of one year. CFM software program

based on CFM software were used to track and monitor the progress of case. The technology was

provided by USAID.

In effect, the project showed the disposal of cases increased with the use of CFM

methods. According to CFM timeframes, 95 percent of the civil cases and 90 percent of the

criminal cases have been disposed in the first level courts. The project resulted in a heightened

level of awareness of judges, court personnel, lawyers and the public on the importance of

reducing or eliminating delay through CFM. The different challenges were presented in doing

this kind of project. Several judges and court personnel became allergic to the idea of meeting

shorter deadlines and observing new timeframes and schedules because this process upset

established patterns of their professional and personal lifestyle. Some courts suffered from 1 Case management reform: The Philippine experience by Elepano, Z. N. (2009). Supreme Court of the Philippines

culture shock because they had no specific knowledge and training especially in the use and

operation of the technology. The technology was difficult to maintain and it suffered

innumerable glitches to the program. Also the computer illiteracy of several judges and court

personnel thought that the technology was beyond their mortal understanding. She concluded

that the system continues to be enhanced with the addition of new features such as electronic

payment of filing and other legal fees, electronic docketing and numbering of cases and

electronic assignment or raffling of cases.

Martin Levin’s paper1 is case studies of delay in the courts of Chicago, Pittsburgh,

Columbia and Minneapolis. The author stated that the criminal court delay usually stresses large

caseloads thrust upon the mismanaged and inefficient courts. He described delay as an aberration

in the court system and the solution for this problem that always pop up stresses a better

administration.

Furthermore, he suggested that delay tends to be associated with the behavior of the

judges, attorneys and the prosecutors. These behaviors include the suppression of evidence, full

length trials, and a large caseload. The author cited an example wherein defense attorneys often

consciously take actions associated with delay as an indirect means of achieving their own goals,

even at the expense of the defendant's goals. According to Levin (1975), delay does not seem to

be an external phenomenon thrust upon unwilling court participants.

The author also discussed basic terms and facts about delay. He also analyzed the goals

of the judges, defense attorneys, and prosecutors as well as some background and contextual

characteristics of the criminal court process. He also analyzed the factors most immediately

associated with delay, the effects and significance of delay and some possible remedies for delay.

The problem that the author faced is that the study had significant variation in several of

the other important characteristics that he was to analyze of these courts such as caseload size,

proportion of public defenders, and proportion of guilty pleas. With that, the analysis of the

author is suggestive rather than conclusive.

LOSERS PAY RULE

The idea of “Loser Pay” rule was presented in the paper of Gryphon2. According to

Gryphon (2008), the United States pay a high price for a system of justice that makes the legal 1 Delay in Five Criminal Courts by Levin, M. (1975).2 Greater Justice, Lower Cost: How a "Loser Pays" Rule Would Improve by Gryphon, M. (2008).

system abusive. Replacing the American rule to Loser-pay system will have a great development

in response to legal reforms, exposure to liability of fees and can promote early settlement. The

study explains the adaptation of “loser pays” rule for the attorney’s fees. It could be an important

part to reduce litigation cost and discourages meritless lawsuits. Different goals for the reform

are also presented like; compliance with the law, compensation for the victims, low transaction

costs, equitable distribution of cost. Some data were presented including the data from Alaska

and Florida in using this kind of system for their judicial system. According to the article, Alaska

recorded 5,793 civil filings per 100,000 inhabitants in 1992. This number was only slightly

below the national median of 6,610 per 100,000. In effectively of the loser pays rule in Alaska, it

is responsible for more selective filing of tort claims in Alaska than in other jurisdictions. In

Florida’s case, it experiences an increase in litigation expenses both those that settled and those

that proceeded to trial during the loser-pays experiment.

Litigants with weak cases should be far more likely to abandon their claims under loser

pays which allows lawyers to focus on more worthy cases. Also some proposals were presented

in prevailing party for the costs of litigation and reasonable attorneys’ fees. Some proposals are;

Compensating Winning Litigants, Reducing the Number of Abusive Lawsuits, Promoting Early

Settlement, Containing Litigation Costs, and Promoting Litigation Insurance.

“Loser Pays” or the English rule is sometimes called a way to discourage frivolous cases

and make the civil justice system fairer and efficient. When lawsuit losers are forced to pay the

legal fees of winners, the cost of litigation for everyone goes up. The article1 talks about the case

of Naomi Campbell, which shows the cost of litigation for both sides was over £1 million and

like the most of the countries, it requires litigation losers to pay the legal fees and expenses of

litigation winner. Campbell won the case and her lawyer was asking for £250,000 in costs.

According to Kritzer,

“Loser pays sounds like a silver bullet for a costly litigation system, particularly to

defendants who believe they have been wrongly sued. It also looks simple: Someone wins, and

the other side pays his costs. But experience reveals a far more complex reality, one full of

disputes over fees and related issues, and with plaintiffs like Naomi Campbell, who can win

paltry awards and still be owed astronomical legal fees.”

1 “Losers Pay” Doesn’t by Kritzer, H. M. (n.d.).

There is also no doubt that loser-pays rule can discourage people from filing lawsuits. If

losers pay became standard in the U.S., it would probably create a market for insurance covering

the risk of losing and having to pay a winning defendant’s costs.

CONCLUSION

Overall, costs are hard to evade, but we could do something to lessen these costs.

The researchers recommend that a person who wants to file cases should get a lawyer that

utilizes a results based option when it comes to defending their clients, this will fully prioritize

the client and get their money’s worth when it comes to hiring an attorney. Furthermore, this

option will help prevent delaying tactics that some lawyers employ, minimizing the possible time

that people will invest as well unnecessary cost it may induce.

Every time a case hearing schedule is delayed due to a petition of the lawyers, the

government should fine them as they delay the case and unnecessarily use up time of the judges

as well as their clients. Also, the courts should utilize a computerized system in filing cases as

well as distributing their resolutions and other notices. This will minimize the use of paper

because they could just use soft copies of their files thus lessening the miscellaneous expense of

complainants as well as defendants. Furthermore, it could lessen some of the delays since

subpoenas could be sent through e-mail, and most people already have email addresses that they

use and check almost every day. It will be hard to miss.

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