Slow Trials? Let's Start from Lawyers

IN ORDER TO RETHINK ITALIAN CIVIL JUSTICE, IT'S NOT ENOUGH TO REWRITE PROCEDURAL RULES; ACCESS TO THE ATTORNEY'S PROFESSION NEEDS TO BE REVISED

by Cesare Cavallini, Dept. of Legal Studies, Bocconi
Translated by Alex Foti

Periodically, the old, and by now considered unsolvable, problem that Italy has with the unreasonable slowness of civil justice re-emerges in public opinion, and in the everyday dealings of citizens and businesses. It is considered a non-negligible factor in causing inefficiency and delay in economic development, especially in the present historical context characterized, almost physiologically, by permanent economic crisis.
 
In fact, this only shows that public institutions have shown scant attention and energies to address the problem, and possibly solve it. In whole honesty, it must be said that several roads have been tried, and on various fronts. This has recently caused an overabundance of legislative production to reform civil procedure, essentially aimed reducing the time to arrive at a decision by the various judicial levels. They include the introduction of conciliation and other alternative dispute resolutions, such as induced resolution of already pending litigation, the simplification and specialization of procedural law for peculiar types of controversies, the objectionable although necessary narrowing of access to appeal the judicial decision, indirectly aimed at shortening the time needed to reach a final court ruling. The legislator has proceeded to introduce financial penalties (directly on citizens and firms) who, due to the content of the court sentence, initiated or resisted in a trial that shouldn't have been initiated or continued, as a sort of retrospective penalty that acts as a disincentive against excessive civil litigation.
 
By themselves, considered individually, the recent measures to speed up the pace of Italian civil justice appear – save the always possible fine-tuning of regulations – in many ways well-conceived and overdue. But from a systemic perspective, although they regulate the present with an eye to the future and do not try to pay remedy to the errors of the past, the new norms in fact betray a partial view of the heart of the problem, which lies far from procedural rules, with the consequent mania of change for the love of change, which tends to engender uncertainty among legal actors.
 
A sketch of the current situation sees an alarming growth in the number of civil disputes which results in the uncontrolled proliferation of lawyers, which is not matched, as it shouldn't be, by a growth in the members of the judiciary. Contrary to any other comparable model, either European or Anglo-Saxon, there is no filtering of access to Italian law schools, and especially to the legal profession, whose professional order has decided to focus on the lucrative continuous education market and not to the rules of access to that market, since ex-post lack of training seems to betray a shortage of ex-ante professional education.
 
Ultimately, a perspective view of civil justice and the role of the legal professional as necessary component of economic development must start from the awareness the new approach is needed about access to the attorney profession, which should be seen as the epilogue of a professional training path, rather than as the improvised departure of a career. This means creating a new legal culture, starting with Italian law schools, which should first of all offer serious and functional educational content to students, and finally regulate entry to law degrees, where enrollment is still anachronistically "free" as result of a misunderstood notion of freedom seen as equivalent to the right to higher education. These are rules that, to some extent, give law schools the role of first filter.
 
Only then, perhaps, it will be possible to return focusing on the rules of civil trials, the essential ones, without wasting time to become sterile scholars and practitioners of the so-called combinato disposto [combination of legal provisions].