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It's only part of the tapestry of the story, but IIRC in the New Jim Crow by Michelle Alexander, she notes that the USA stopped funding the creation of courts/judges after the 1960s as it had in prior years so now the number of cases per judge is much higher than it has ever been, this is also mentioned the season three of Serial podcast which indicts the American criminal justice system for a variety of reasons through the entire process, but both indicate the perverse incentives to avoid trial, it kind of reminded me of the persecution of innocent protagonist in The Count of Monte Cristo simply by having the justice system work the way it was supposed to with just one bad actor condemning the guy to years of injustice.

> . Two years on, and we were just at the beginning of "discovery" -- an amazingly invasive process that appears to be unique to the US legal system.

This is common in almost all legal systems. How else would the defendant get to examine the evidence against them and how else would you provide evidence if there was no discovery process?

Its hard to imagine there would be a legal system without it.

You are basing that claim on the "it is impossible to not have the same problem as US have" assumption.

In China I recall that "the burden of proof was on the parties" and both sides were asked to submit all relevant evidence to the court. Then there were a couple of meetings where my lawyer met with the other side's lawyer to review the evidence.

If you're the plaintiff and you have evidence that supports your version of events, you give it all to the court. If you're the defendant and you have exculpatory evidence, or anything that shows that the case is frivolous, you give it all to the court. The judge can then ask for more evidence, or utilize what's provided.

My legal team didn't need to sift through ten years of emails in order to find a few needles hidden in the haystack. The process wasn't adversarial. The parties can't use "discovery" to get trade secrets or proprietary information. And the costs were near enough to zero.

I wouldn't even say that it's a "better" system. I'd characterize US-style discovery as simply broken, and the Chinese system as something that works in a common sense way.

> If you're the plaintiff and you have evidence that supports your version of events, you give it all to the court. If you're the defendant and you have exculpatory evidence, or anything that shows that the case is frivolous, you give it all to the court.

Yes, but what if you're the plaintiff/defendant and the other party has evidence in your favor? How do you get it before the court? That is what discovery is for.

Honestly it just sounds like you had an easy case tried in China and a hard one tried in the US and are making some really broad assertions about the two legal systems based on a small sample size.

> Yes, but what if you're the plaintiff/defendant and the other party has evidence in your favor? How do you get it before the court? That is what discovery is for.

What do you know of this evidence and how do you know about it?

> Honestly it just sounds like you had an easy case tried in China and a hard one tried in the US and are making some really broad assertions about the two legal systems based on a small sample size.

lol, no. It was actually the other way around. The US case was completely open-and-shut, whereas the Chinese case hinged on a matter of sensitive technology with military or "dual use" potential and it could have gotten ugly. I'll swear on whatever you like that I could hardly wait to get our US case in front of a US judge, but it was practically impossible. There are just so many absurd pretrial hoops to jump through. And all of them expensive.

The Tesla ran into me while I was crossing the crosswalk and then took off. I was able to capture their license plate. We tracked them down and were able to ask them, but they denied that they had done this. I sued them in civil court to cover my medical expenses. I happen to know what Teslas keep a video log of these. The defendant wouldn’t provide it willingly until we went into discovery and they were compelled to provide it, which made my case.

This is but one of infinite examples of the other party having evidence helpful to the other side and harmful to themselves.

> I happen to know what Teslas keep a video log of these.

You provide the court with that information, and the judge presiding over the case can (and almost surely will, if you're correct,) ask for the logs. If they don't provide them upon request, they're hit with a adverse inference, just as they would be if they withheld documents in discovery.

It's plain common sense.

Now, it's true that "you don't know what you don't know" and that discovery can be an investigative process, but for the vast majority of cases it's totally unnecessary. And, in very many cases, discovery will actually impede access to justice. In court systems without discovery, judges tend to take on a slightly more investigative role, besides.

The 95 year old lifetime appointment judge with dementia and cataracts: “Cars have cameras you say? In my day we only had daguerreotypes. We wore an onion on our belts, the style at the time. Request denied.”

This is an old tired stereotype. Judges are perfectly able to handle complex novel concepts such as technology. The judge before the oracle c. google case learned to program to gain insight, for example.

>The judge before the oracle c. google case

Exactly. The US justice system works for people with money.

> What do you know of this evidence and how do you know about it?

It's called "discovery" for a reason. You ask for everything you think might be relevant.

In most countries it's the judge who oversees discovery not the rival lawyers to avoid the whole 'using discovery as a weapon to waste your opponents money' issue while still allowing for the right evidence to come to light.

That seems like a distinction without meaning. "Rival lawyers" don't "oversee" discovery. They make requests to the judge, who decides on their validity and issues orders. It's just a formalized suggestion.

In US Federal court, rival lawyers don't make requests to the judge, they make requests of each other. The judge is merely a referee, who adjudicates disputes that arise as part of the process. Example:

Red-Team Lawyer: "Provide us with all emails from 1/1/2010 through 1/1/2020, inclusive, that include or mention [product x] or are of relevance to its research, development, production, or marketing."

Blue-Team Lawyer: "That's overly broad and many of those emails contain proprietary confidential and trade-secret information, which is protected. My client will not provide them."

Judge, intervening after objections are filed: "Counsel, under FRCP 26(b)(1), discovery must be proportional to the needs of the case. Red Team, narrow the timeframe to 2015–2020 and limit the search to emails involving R&D leads and marketing executives. Blue Team, designate confidential portions under FRCP 26(c) as 'Attorneys’ Eyes Only' and produce a privilege log for withheld items. Failure to comply may result in sanctions under FRCP 37."

Every single part of this costs money and takes time. It usually takes a judge ~1-3 months to rule on discovery disputes. Filing the dispute is non-trivial. And "designating confidential portions" can provide junior attorneys with months of work.

That's hardly even the tip of the iceberg. There are so many sneaky tactics you can use in discovery that entire books have been written about them. For instance: https://jamespublishing.com/product/guerrilla-discovery/

Whereas if both sides just provide their evidence to a judge's office which compiles them into an account, all of this cost and effort is spared.

Yeah, yeah, yeah. But again that's semantics[1]. You ask for stuff via some mechanism, even an informal one, argue about it as necessary, and a third party adjudicator decides what you're allowed to.

Basically you're complaint here is about formality and paperwork. Which, fine. It sucks. But the fact that it exists is precisely what prevents someone from doing stuff like paying off the judge or just destroying evidence. I don't love it either but I sure as shit know which system I'd rather be living under.

[1] It's also actually wrong as a matter of pedantic fact: discovery requests are court filings and are made "to" the court, not the opposing counsel. But again, that's a distinction without meaning.

Discovery does nothing to prevent either party from destroying or withholding evidence. There are penalties if the destroying/evading party is caught, but, in order to be caught, the other side usually has to have an idea of what's missing. So, in effect, systems without discovery work just as well or better: They enable you to show the court what you know and how you know it.

"Paying off the judge" is not a systems-level problem; it's the sort of thing that has been criminal for as long as man has had legal systems. You can't point to it as an example of "legal system is good" or "legal system is broken." Doesn't work that way.

> Discovery does nothing to prevent either party from destroying or withholding evidence.

It literally criminalizes it! People go to jail and lawyers get disbarred for obstruction every year. And as a result reputable firms won't even try to dance around these things. If you're an attorney and get a subpoena or discovery request, you tell your client to freeze their backups right away and send repeated emails reminding them, then print them out and file them along with the response. This is true even if it's a ridiculous request you know you'll beat. Because you know if you fuck this up you'll lose your career.

I mean... have you ever actually talked to a corporate lawyer?

Let's stop this tail-chasing and get to the bottom of the true difference: US (and most common-law) judges are neutral arbiters, strictly opining based on what evidence is there (Adversarial System). This is not how it works in civil-law systems, especially Germanic ones (of which PRC has retained more-or-less despite its communist history), which are entrusted to discover the truth, even if it seems to favor a party, and can do things that would be very questionable in an adversarial system, such as directly calling witnesses (Inquisitorial System).

> and can do things that would be very questionable in an adversarial system, such as directly calling witnesses (Inquisitorial System).

https://www.law.cornell.edu/rules/fre/rule_614

Rule 614. Court’s Calling or Examining a Witness

(a) Calling. The court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness.

(b) Examining. The court may examine a witness regardless of who calls the witness.

(c) Objections. A party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present.

>the court attained the right outcome, and I won the case.

Ha, well, you would say that.

> [How] would you provide evidence ...

You don't sue people for fun, right? It's either they did something to you and you have damages, costs, paperwork, records, CCTV footage, medical examination records, whatever, or you want them to do something based on some regulation/statute/right.

Discovery usually tries to show that so and so higher up knew about it all along, no?

The legal process in the US is driven by the parties, and the party with more money can abuse this fact. Party-driven discovery is a major scene of abuse in this regard.

> > . Two years on, and we were just at the beginning of "discovery" -- an amazingly invasive process that appears to be unique to the US legal system. > > This is common in almost all legal systems.

This statement is false, both the German and French legal systems do not have something like discovery. To confirm for yourself just Google "is there something like discovery in the German/French legal system". Considering that many legal systems are based on these two (one could argue the German one is based on the French as well) I think we can conclude that not having discovery is in fact common.

> How else would the defendant get to examine the evidence against them and how else would you provide evidence if there was no discovery process? > > Its hard to imagine there would be a legal system without it.

Here is a link how the German system works without it. It also explains why for German legal practitioners it is a concept that violates some of the core principles of fair justice. https://www.linkedin.com/pulse/german-way-discovery-just-don...

Most legal systems in Europe are based on Roman law, including the French and German. The Anglo-American ones are unique in that they are based on common law, not Roman law.

> Two years on, and we were just at the beginning of "discovery" -- an amazingly invasive process that appears to be unique to the US legal system.

It’s a part of most common law legal systems.

I was sued in the US once. Between all the stuff it took about 3mo.

You can't just spew blanket judgements when the actual course of events depends so heavily on the specific facts. I question the intelligence of anyone who managed to have a lawsuit going on for 2yr and not come away with an understanding that specific facts matter greatly.

3 months? Small claims?

Federal civil court averages 33.7 months from filing to trial. Needless to say, it can be a lot busier than that in slower districts. (~43 months in the 2nd District!) And then there are appeals, etc...

Best case, we were looking at 40 months from filing to trial in the 9th District, which is statistically nominal, but the whole process would probably have taken far longer.

Current statistical table: https://www.uscourts.gov/data-news/data-tables/2024/12/31/st...

I've never heard of a single 21st century US (Federal) civil case that went to trial in less than a year, to say nothing of three months. I can point to a mountain of cases that have been dragging for many years.

Now that I look at it it was 5mo, state superior court.

It was not a land or probate matter or any other matter for which there is a bespoke streamlined process. Both parties agreed on records, facts, etc.

> I don't know how things are in Europe, and hope I never have to find out

In Sweden at least this level of insanity is only heard about as anecdotes online...

In civil (and criminal) law, yes, but in "förvaltningsrätt", public law, it's somewhat different. Cases are judged mainly from documents and sometimes the state can sort of force you to provide documentation in a manner similar to discovery and subpoena. It's also where you might end up with a reversed burden of proof, notably in tax cases.

It's still a much saner jurisdiction in many respects, especially for physical persons. You might get marginally nicer judgements in commercial law in certain US states, though I'd personally prefer both swedish law and swedish arbitration due to a combination of lower costs and the average quality of commercial law here. The Stockholm Chamber of Commerce arbitration institute is actually rather popular among international corporations for roughly these reasons.

In Poland it is much cheaper, but it is slow or even slower.

Pretty much what OP said, at least here in Hungary.