The Contemporary Litigation Environment

Introduction

A crisis exists in Michigan today, and not many people are aware of its severity. Of all the cases filed in the circuit courts last year, an astonishing 66 percent were family division filings. One reason that family cases are burdening the courts is that in the last 50 years, Michigan has experienced a fivefold increase in the number of children born out of wedlock or to divorced parents.

Besides having a moral and cultural impact, this change in the family structure has repercussions for personal freedom. The dramatic increase in family court cases has greatly increased government’s role in individuals’ personal lives. Currently, there are 1 million open child support cases in Michigan, resulting in expanded government intrusion in the personal lives of at least 3 million people.

Most single-parent families live in poverty and rely on the government for assistance. The current welfare system, even after significant federal reforms in 1996, fosters a dependency on the government and instills in the beneficiary a sense of permanence of economic station. A disinclination to work, personal demoralization and even criminal behavior can be inherited by the children, thus perpetuating the cycle of dependence.

Michigan Supreme Court Justice Maura Corrigan, whose distinguished career includes service as chief assistant United States attorney, chief judge of the Michigan Court of Appeals and chief justice of the Michigan Supreme Court, delivered an address on this topic as part of the Mackinac Center’s Distinguished Visiting Speakers Program on June 14, 2006. In her remarks, she expressed a deep concern about the current state of Michigan families, but she was also optimistic that an open dialogue among informed citizens can and will make a positive difference.

Justice Corrigan was introduced by Mackinac Center Senior Legal Analyst Patrick J. Wright. The text of her address is posted below.

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(Christina M. Kohn is a senior economics and history major at Hillsdale College and a summer 2006 intern at the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich.)

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Thanks so much for that kind introduction, Patrick, and for the invitation to speak at the Mackinac Center this afternoon. I applaud the work of the Mackinac Center. Your exceptional work here influences a national audience. I am honored to occupy your stage today, especially as I am not an academic or a social scientist. I hope to bring you a state court leader’s perspective that has been forged by confronting the fallout from family dissolution.

I will speak this afternoon about the contemporary litigation environment in Michigan. I hope to present a truthful portrayal of where Michigan currently stands, and an approach for thinking about beginning to transform our litigation environment.

My message will be at once troubling and challenging. But it is most definitely a message you need to hear. I hope I can entice the Mackinac Center to come to the table — to join other scholars of first rank across the United States who are looking at these problems.

I certainly never dreamed that our work on the Michigan Supreme Court would earn us kudos as a "judicial point of light" in The Washington Examiner, or praise in the Wall Street Journal (thanks to Patrick Wright) as the "finest Supreme Court" in the nation. While we have transformed the Michigan Supreme Court in the last seven years, Michigan itself is locked in a "single-state recession." We are awaiting news about GM’s, Delphi’s, and Ford’s future and all of us are certainly experiencing the ripple effects of our state’s economic problems. Never has the challenge facing Michigan been greater. As Thomas Friedman’s best-selling book The World Is Flat tells us, we live in a radically changed world. Contemporary information technology allows jobs to be unbundled and performed virtually anywhere in the world. How will Michigan transform itself in this new world? How is our state’s litigation environment going to support our transition so we can compete in this flattened world of global competition? And how will we do this in this face of a huge cultural shift? Professor James Q. Wilson described this cultural shift best in his 2002 book The Marriage Problem—today, marriage is one of a range of options; it is not an institution.

My remarks about our litigation environment are in two parts. First, a review of our tort litigation environment, and second, a look at a revolution in the litigation environment due to the meteoric rise of cases in the family court.

I really got an accidental awakening to the issues I’m presenting here. The day I became Chief Justice in 2001, our state budget director alarmed me by saying that the governor planned to impose a $40 million federal penalty exclusively on the judicial branch. The penalty arose because the judicial branch had not cooperated in building a statewide computer system to collect child support. From 2001-2003, we moved half a million child support cases from a local computer delivery system to a statewide computer system. We are now federally compliant. Indeed, the federal government refunded $35 million to us for doing a good job. Health and Human Services also appointed me to a national task force studying child support arrearages. But this whole effort led me to ask what was causing our problem and I developed a keen and abiding interest in the real economic issues surrounding supporting our nation’s children and protecting our future.

To try to tackle the tough questions I’ve posed to you, let me refer first to a recently released comprehensive study of the 50 states’ liability system that ranks them from best to worst. This survey has been conducted since 2002 by Harris International for the U.S. Chamber of Commerce. This year, Michigan ranked number 22 in the overall survey of the 50 states’ litigation environment — an improvement from our earlier ranking in 2003 of number 29 in the United States. Since 2002, the Harris study of the "Best to Worst Legal Systems in America" has asked how corporate attorneys in each state view their state’s liability systems. In Michigan, Harris surveyed 125 corporate attorneys. They measured numerous elements, including whether a state has and enforces meaningful venue requirements, how it treats class action suits, punitive damages, and its rules for scientific and technical evidence. The survey assesses the timeliness of summary judgments and discovery rules. It looks at the competence and impartiality of judges as well as juries’ fairness and predictability. Needless to say, the vast majority of those corporate lawyers surveyed tied each state’s litigation climate to business decisions about where to locate and whether to remain in the state.

So Michigan is faring better on this survey than we did just five years ago. But we obviously still have far to go to improve our ranking so as to make Michigan an attractive place to live and work. We need to improve not only in relation to our sister states, but in relation to our global competitors. Being a state in the middle of the litigation environment pack in the United States is simply not good enough.

I brought a short handout with me this afternoon. Handout #A, Table 42, summarizes Michigan’s ranking on every element the Harris study rated. As you can see, our top ranking was in the area of punitive damages — interesting since Michigan does not even have punitive damages — and we fared the worst on the attorneys’ assessment of our judges’ competence and impartiality.

The next handout, #B, Table 8, is the overall ranking of the top/bottom five states. We are neither the best nor the worst in any category at all; interestingly, our near neighbor Indiana ranks in the top 5 on several measures, while conversely Illinois often ranks in the bottom 5.

This Harris Study is illuminating and instructive, and provides much fodder for the leaders of the judicial branch and government leaders; these ratings of our state’s litigation environment are certainly worth this audience’s careful attention. But they really only tell a part of the story.

I want to next relate information drawn from our last annual report of judicial activity in our state’s circuit courts. Well, what do the numbers show? (Table "C" in the handout.) As you may know, Michigan has 10 million people. We have approximately 600 judges, of whom 217 are circuit judges.

Let’s begin first with a comparison from 2000-2006. You will see that filings overall are trending down. In 2005, family court filings are down by almost 40,000 cases from 2000. Contrarily, non-family (traditional criminal and civil) are up from 109,000. They peaked at 117,000 in 2004 and went back down to 113,690 in 2005. But do you notice on this handout that two-thirds of the circuit court filings are family court matters?

Finally, please look at the last page of the handout, Table "D" (page 31 of the report). Taking a closer look at the statistics, you will see that general civil filings are up by approximately 5,000 since 2000, and auto negligence is relatively stable. Non-auto damage filings are definitely down from 11,000 filings in 2000 to 7,400 in 2005. This is the figure that the Harris Study is concerned about. You can see that it is a miniscule number by comparison with 330,000 filings overall!

My core point from the handouts on Michigan’s litigation environment is this explosion in family court filings. The Legislature was well aware of the surge in family court cases when it formed the family division of circuit court almost ten years ago. Indeed, our state’s circuit courts are now dominated by cases involving either the breakdown of the family or the failure to form any family unit whatsoever.

Consider the 2005 data against our annual report of judicial activity in 1966. Forty years ago when Michigan’s population was eight million, the total number of all filings in the circuit courts was 86,000 cases, i.e., civil, criminal and family. So in 40 years, our circuit court filings have essentially quadrupled. Now that is explosive.

Let me give you some broader context to understand what Michigan and our country is experiencing. Federal census data indicates that, in 1950, for every 100 children born, 12 children entered a broken family unit, with four of the 12 being born out of wedlock, while eight had parents who divorced. By the year 2000, that number had risen five-fold, to 60 out of 100. That is, of every 100 children born, 33 were born out of wedlock and 27 had parents who divorced. Think about it. Today, an American child who is being brought up by married parents is in the minority.

Michigan is, of course, caught up in the throes of this national trend. We have more than one million currently open child support cases in our family courts, mom and dad and child, representing one-third of Michigan’s population and more than one million children. We believe that three million of our 10 million people have an open file in the family court. The most startling statistic to me is that 50 percent of our open child support cases involve paternity cases, i.e. children who are born out of wedlock. In our state, parents owe their children $9 billion in unpaid child support. In fact, roughly 10 percent of our nation’s total arrearage of $102 billion is owed right here in Michigan.

I find those numbers chilling. From my vantage point, parents and children are increasingly caught up in our legal system. They are locked in a cycle of poverty, disadvantage, and often crime. Michigan has 20,000 children in foster care — 7th highest number in foster care in the country. These children reflect a much larger problem affecting our society. Most of these children have parents who never married. These children will remain in the foster care system until age 18, at which point they’ll be on their own without any kind of support structure. Michigan State University studies show that more than half of those young people wind up back in our courts within two short years of aging out of the system. They become caught up in substance abuse, crime, and themselves perpetuate the cycle of abuse and neglect with their own children – who, again, will most likely be born out of wedlock.

What our judicial branch annual report tells us, locked inside these boring and apparently innocuous numbers, is that we have a huge problem on our hands. In just one generation, we have moved from a culture of marriage to a culture of divorce to a culture of cohabitation or one-night stands.

Chief Judge Mary Beth Kelly of the Wayne County Circuit Court (the county in which Detroit is located) describes a typical child support case of that court’s 220,000 child support caseload. (This is larger than the caseload of 30 states.) Chief Judge Kelly’s typical case is a 21-year-old male who fathered a child in a one night stand some years earlier. The father does not know the mother, much less his child; he was identified by a DNA test. He now owes thousands of dollars in back child support. The arrearage he owes results from a court order that was entered by default when he was 18. There is a belief on the street that if you don’t go to court, the court cannot tag you with a child support order. This is, of course, a totally false notion, but one that is quite prevalent.

Professor Wilson has aptly captured what is going on: "Whereas marriage was once thought to be about a social union, it is now about personal preferences."

So if "personal preference" is the operative principle today, where does that leave us as a state and a nation?

Sadly, it leaves huge numbers of us in poverty. Today, 50 percent of all the live births in our state are being paid for by Medicaid. I think you are also aware of other data: according to HHS/National Center for Health Statistics, almost 34 percent of all the children born are born to unmarried parents. Sixty percent of these never-married single-parent families live in poverty. By contrast, only 7.7 percent of first-marriage intact families live in poverty. Census information for all single-parent households shows that, as of 2002, families with a female head of household and no husband in the home accounted for half of all families living in poverty. Four times as many custodial-parent families live in poverty as intact married families in poverty. In other words, parents who are not wealthy and who live separately cannot maintain the living standard of an intact family.

So this is the 2006 business of our courts and the litigation environment that we confront. This is the litigation environment in which Michigan’s 600-plus judges, court staff, lawyers, and litigants, live and work.

What all this data reflects is a significant decline in two-parent families and a corresponding explosion in family court cases, with children as the most obvious victims. The numbers I have presented here today are a product of cultural forces beyond the power of government to control. But these broken families, or non-families, are utilizing court and social service resources — taxpayer resources—at an astonishing clip.

The question is, what do we do about it?

I don’t pretend to have the answer. But I will say this: it’s no longer enough for us to simply deal with the fallout of this cultural catastrophe. We all have to begin talking about what is happening to children and families. We must have that dialogue regardless of whether we think we can all agree on the solution. Too often, discussions on matters of great moment are stifled because people are afraid to generate controversy or disagreement. But silence, although perhaps more comfortable, is something we can no longer afford, if we ever could.

And I will offer you an approach. I hereby challenge some of the best thinkers in Michigan, you who are sitting right here in this room, to join forces with others across our nation who are working on the problem. By this I mean, for example, Mary Ann Glendon at Harvard, James Q. Wilson at Pepperdine, David Popenoe at Rutgers and Carl Schneider at University of Michigan Law School. And I pledge to serve as an intermediary, an introducer and a participant at this important table if you will join me!

We can do better and we must — we have no other choice if our democratic society is to survive. Thank you for letting me share my perspective with you this afternoon.

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