by Carl E. Person
Chief Judge of the National Private Court
[1995 Note: This pamphlet which was prepared 18 years ago is being made available for persons interested in alternative dispute resolution (ADR) techniques. The NPC never got off the ground (for lack of sufficient financing), but its format remains viable to this day, making appropriate changes such as use of the Internet, use of computers instead of word processors, eliminating paper NPC supplies and printed forms. LawMall is attempting to resurrect the idea and anyone interested in becoming a priv ate judge for compensation, or anyone interested in resolving a dispute by use of the NPC, should contact Carl E. Person. Also, you should look at an existing meditiation and arbitration service, Global Arbitration Mediation Association, Inc. or GAMA, by clicking on GAMA.]
National Private Court Division of
Paralegal Institute, Inc.
c/o Carl E. Person
325 W. 45th Street - Suite 201
New York, N.Y. 10036-3803
Copyright © 1978, 1995 by Carl E. Person. Permission is given for non-commercial users to send a copy of the data processing file for this work by electronic means to a specific individual for his or her own use, and then only if the entire file is sent, including this copyright notice, but no permission is given for anyone to copy or transmit this file for or to any person for public viewing or downloading. It is intended by the author of this work that the work shall be made available in electro nic form only through LawMall.
This booklet is designed primarily to show how you can speed up the civil lawsuit in which you are a party now pending in the governmental courts. Because of "court congestion" and related ever evils, the civil case could go on for many months or years be fore it comes to an end. As a plaintiff, you might grow weary and abandon it along the way; or as a defendant you might have the litigation and its costs, trouble and uncertainty hanging over you for the next 3-10 years.
With these problems of excessive litigation delays in mind, the National Private Court ("NPC") was conceived, as an idea, in September, 1977, to provide a fair, fast and inexpensive way for persons in civil litigation to bring the lawsuit to an end, while retaining the important right of maintaining their claims and defenses, even up to a 3-judge NPC appellate panel.
Compromise of the claims or defenses is not normally desired or expected (after the compromises preceding execution of the all important Submission Agreement), in absence of settlement of the whole dispute by the parties. The NPC trial-court judges have the duty of rendering their decisions based on substantive law and the federal rules of evidence, employing federal practice and procedure as modified by the Submission Agreement. Accordingly, the NPC does not consider itself an arbitration system. The NPC is virtually the same as a governmental court for all practical purposes.
A word of warning--although the parties and the NPC judges will agree to attempt to resolve the dispute within 2-3 months, there can be no guaranty of completion within the desired time, for various reasons. It is reasonably possible, following the NPC p ractice and procedure as established in the parties' Submission Agreement, to accomplish the objective, but valid reasons may develop after execution of the Submission Agreement to make the objective impossible to achieve. Accordingly, NPC litigation shou ld be considered expedited litigation consistent with the needs of the parties and the NPC judges to develop, maintain, evaluate and decide the various claims and defenses.
Delays in the governmental courts are caused by underfinancing and understaffing. The number of cases persons wish to have decided by these courts is in excess of the financial and human resources of the courts, which results in so-called "court conges tion".
The governmental Judges in congested courts have insufficient time to spend on each of the matters assigned to them, resulting in unwanted postponements and diluted judicial attention.
Because these governmental judges cannot hear most matters any more quickly, they cannot bring any believable pressure on attorneys to speed up their cases. Attorneys expect and rely upon obtaining substantial delays caused by the judicial congestion, oft en as a litigation strategy, and create even more delays by themselves (due to the resulting lack of judicial care or resistance). 'Court congestion" feeds upon itself and creates even more "court congestion", including longer delays and even higher liti gation costs.
The major but highly sophisticated evil of court congestion is the inability of the governmental-court judges to devote an adequate amount of time to each case, resulting in a dismissal without trial of actions, claims or defenses which a judge with more time to devote to the case might have recognized as meritorious and deserving of trial. Judges in congested courts are under pressure to reduce their own workload by getting rid of cases, which means dismissing cases without trial by making a determinati on under enormous time pressure that the case, claim or defense, is 'without merit" or is "frivolous', often code terms meaning "I'm overworked" and "I have more interesting matters piled up on my judicial desk". The NPC philosophy is to reverse court co ngestion by paying judges for the time they need to spend on a case to decide it fairly under the federal rules, as modified by the parties in their Submission Agreement.
Although these delays attributable to "court congestion' vary from court to court, judge to judge and case to case, it seems fair to say that many fully litigated cases in congested governmental courts take between 3 and 6 years, including one or more app eals.
The country could use a billionaire benefactor to supply the funds needed to pay for the judicial services required to handle the actual and potential volume of meritorious actions, claims and defenses sought to be maintained by citizens and other residen ts of this country. As long as the governments and third-party benefactors fail to supply these funds, the parties to disputes will have to provide the funding themselves, to avoid the congestion problem. The NPC provides the mechanism by which the part ies to a civil lawsuit can expand the nation's judicial system for the one case and provide the necessary amount and quality of judicial services to resolve their dispute fairly, quickly and inexpensively.
Litigation in the NPC differs in various material respects from litigation of the same action in the governmental courts or submission of the same dispute to customary arbitration procedures. These differences may constitute an advantage or disadvantage f or you, or be comparatively insignificant to you, depending on various factors. Your attorney should discuss these differences with you. The major differences are listed below and many of them will be discussed by you and your attorney when negotiating your NPC Submission Agreement with the opposing party and its attorneys:
1. No trial by jury (instead, the case is tried before the NPC judge);
2. The defendant's liability is limited to a maximum dollar amount (such as $55,000), even though the plaintiff claims or proves a higher dollar amount of damages (such as $100,000);
3. On any counterclaim by the defendant, the plaintiff's liability is limited to the amount of any recovery by the plaintiff (amounting to no more than an "offset");
4. NPC judges are chosen by the parties themselves, from the panel of attorneys making themselves available to serve as NPC judges;
5. NPC judges can be highly experienced and knowledgeable in the areas of law and commerce involved in the dispute; 6. Each NPC judge will represent and warrant that he has no interests or relationship with the parties, their attorneys and others, to demonstrate to the parties that he has no conflict of interest;
7. NPC litigation expenses are substantially reduced;
8. NPC pre-trial discovery proceedings are strictly limited by the Submission Agreement; the NPC judges will enforce these agreed to limitations on the number of interrogatories, requests for documents, requests for admissions and depositions;
9. NPC discovery and trials can be bifurcated (split) so that one part of the action proceeds to a conclusion before another is commenced (thereby eliminating the time and expense of pre-trial and trial proceedings on the issue of liability, for example, if the plaintiff cannot prove any damages);
10. The parties may agree that no injunctive relief is to be granted by the NPC judges (or that no interim injunctive relief may be granted);
11. The parties may agree that the action will not be a class action or a stockholders' derivative suit;
12. The parties may agree that the NPC judges are not to award any punitive or trebled damages;
13. The parties may agree that no publicity is to be sought or given to any of the proceedings or the Final Award;
14. All information received by a party from the opposing party is held in confidence, for return after the action is completed;
15. No opinions by the NPC judges are to be published or publicized;
16. Opinions, decisions and awards by the NPC judges will have no precedential or collateral estoppel value (meaning, essentially, that the opinions, decisions and awards cannot be used against any of the parties in any other disputes which may arise in a ny of the governmental courts or in any arbitration proceedings involving any one or more of the parties to the NPC action);
17. Records of the NPC and NPC judges are not available for inspection by the public or any governmental agencies (in absence of a subpoena, after adequate notice to the other parties);
18. Appeals may be bifurcated (to permit appeal to be heard first on a single, potentially dispositive issue);
19. The parties and their attorneys will have access to NPC's Lexis, recording room and equipment, transcription and other NPC facilities;
20. Appeals will involve no 'designations" of portions of the record (because each appeal in on the whole record);
21. Appeals will be on the whole (original) record, without any appendixes' (the parties should not have to supply various law libraries and governmental archives with costly copies of seldom read extracts from a never-read whole record on appeal);
22. NPC judges are available to the parties on very short notice;
23. NPC judges can preside over matters (including motions) by telephone conference calls;
24. Motions may be made orally, when appropriate;
25. Each motion must be preceded by an oral application for permission to make a written motion; and
26. Each party is allowed 2 interlocutory (interim) appellate proceedings (each to be commenced by an oral application).
To give jurisdiction to the NPC judges and the NPC, the parties to a dispute (whether or not a governmental-court action is pending) are to negotiate and sign a written Submission Agreement. A model form of the agreement will be sent to you or your attor neys upon request. This form is to be used as a guide; and it is expected that the parties will make changes, including substantial changes.
The Submission Agreement will state the ways in which present practice and procedure in the federal courts is to be modified when resolving the parties' dispute in the NPC. In effect, the Submission Agreement is a "private statute" enacted by the parties to govern the resolution of their dispute. Each of the "advantages and disadvantages" listed above, and others as well, are granted, denied or limited in the Submission Agreement.
After the Submission Agreement has been negotiated (possibly with substantial active NPC assistance) and the parties have selected their NPC trial, appellate and successor judges, the parties, NPC judges and the NPC will execute the Submission Agreement, which formally grants jurisdiction (by consent) to the NPC judges and the NPC for resolution of the dispute, according to federal practice and procedure, as modified by the Submission Agreement.
If your dispute is already in one of the governmental courts, you may transfer the matter to the NPC for all purposes, including trial and appeals (or for such limited purposes as pre-trial proceedings, for example). Any such transfer requires the consen t of the other parties to the pending action (by execution of the Submission Agreement).
A case could be transferred solely for the purpose of preparing the case for trial (including the preparation of a pretrial order) at which point the case would be turned back to the federal or state courts and placed on the ready trial calendar, for a tr ial by jury or a non-jury trial. In effect, the NPC judges would be functioning as a private magistrate for purposes of the pretrial proceedings.
The possibilities for transfer are numerous. A governmental-court case could be transferred to the NPC solely for an appeal on one or more specified issues, or for a decision on various property disputes which have arisen in a governmental-court divorce p roceeding, for example.
Either you as a party to a governmental-court action or your attorney should discuss transfer possibilities with the other parties or their counsel, or call the NPC (see Section M below) and authorize it to act as a go-between, to interest the other party in negotiating a transfer of the pending governmental-court action to the NPC. If you or the NPC interests the other party in considering a transfer, negotiations could be undertaken right away (during which the NPC could continue its function as a go-between) to arrive at a satisfactory form of Submission Agreement. Upon execution of the Submission Agreement, the pending action will be dismissed without prejudice (with appropriate waivers of any applicable statute of limitations which may have expired after commencement of the pending governmental-court action).
If a sufficient number of cases can be transferred out of the governmental courts, these courts will have sufficient funding and staffing to adequately handle the cases remaining behind. This is the benefit to be created for the governmental courts by NP C's efforts in arranging for the transfer of substantial numbers of pending cases to the NPC. To the extent that governmental-court congestion is reduced, the advantages to litigants seeking delay will be reduced, making NPC litigation more attractive an d requiring fewer concessions by the other party when negotiating the Submission Agreement.
Essentially, the extent to which an NPC plaintiff agrees to limit his recovery on a meritorious claim is a measure of the failure of the governmental courts. Thus, if an NPC plaintiff is willing to give up 50% of his meritorious claim to litigate in the NPC, the nation's judicial system is being evaluated by him as a 50% failure. However, by reducing court congestion, the NPC plaintiff may find that he need not give up as much of his claim, which results in a higher rating for the governmental court sys tem. In other words, the NPC expects to act as a measuring device for the efficiency and acceptability of the governmental-court systems.
Because of "court congestion" and the related problem of excessively high costs to litigate in the governmental courts, many persons with meritorious claims have been prevented from suing in the governmental courts. Persons with grievances who have not c ommenced any action in the governmental courts and wish to resolve the dispute in the NPC should follow the same procedure outlined in the preceding section (except for the references to a pending governmental-court action).
As a practical matter, however, it may be more difficult for you to obtain the needed consent of the opposing party without the filing of a complaint in a governmental court. Accordingly, the NPC suggests that your attorney prepare a complaint and send i t to the opposing party or its attorney with a letter requesting that the parties negotiate and execute an NPC Submission Agreement, as an alternative to your filing of the enclosed complaint in the governmental courts. The defendant's advantage would be to avoid having any records on file in the governmental courts concerning the action, Although normally a defendant might say "Go ahead and sue", believing you will not do so, the desire to avoid adverse publicity might encourage the defendant to agree t o negotiate a Submission Agreement. By preparation and display of the complaint, the plaintiff and his attorney make a healthy showing to convince the defendant of the immediacy of a governmental-court lawsuit if a satisfactory Submission Agreement cannot be worked out.
Except as changed by the Submission Agreement, the NPC judges will follow the practice and procedure applicable in the local United States District Court and appropriate United States Court of Appeals, including their local and supplemental rules and form s. Any lawyer familiar with local federal practice will feel at home litigating in the NPC.
Ordinarily, the following practice and procedure will apply: 1. Discovery: Pre-trial proceedings for a party to obtain information from his opponent will take place in accordance with the federal rules, except that the number of interrogatories, requests for documents, requests for admissions of fact, and de positions are limited in number; this limitation reduces the costs and need for legal services by forcing the parties to concentrate on the most significant discovery. Years of litigation delays can be avoided with these discovery limitations.
2. Subpoenaes: Either the parties' attorneys or the NPC judges (depending on applicable federal or state law) have the power to sign subpoenaes to compel document production and testimony by nonparties. NPC subpoenaes are enforceable in the govern mental courts through contempt proceedings in the same way that governmental court subpoenaes are enforced. To the extent out-of-state or other subpoenaes are needed, the NPC judges are required to cooperate in obtaining letters rogatory or a commission for the party seeking issuance of the subpoena.
3. Motions: Motions (requests to the NPC judge or judges for some type of judicial order of "relief") can be made only after an oral application to the NPC judge for permission to make the motion. By requiring the prior oral application for permis sion, the NPC judge can screen out any issues not worthy, of handling by formal motion and reduce the costs, efforts and time needed to complete the litigation. Motions may be made orally or in writing, depending on what the NPC judge decides after the ap plication.
4. Trials: Trials will be conducted before the NPC judge (without any jury). The NPC judge will make written findings of fact and conclusions of law prepared by him after he hears the evidence, and he will base his decision and award on such findin gs. The trial may be bifurcated (split into 2 or more parts) to have the issue of liability (for example) heard and decided before the issue of damages. Also, discovery may be bifurcated so that discovery is obtained first on the issue of liability; foll owed by a bifurcated trial on the liability issue; followed by pretrial discovery on the issue of damages; followed by a trial on the issue of damages. The parties may agree to this procedure in their Submission Agreement, or in absence of agreement, the NPC judge could order such bifurcation.
5. Appeals: Appeals will be heard on the whole (original) record without any printing of appendixes (which are portions of the original record printed in separate books for convenience of the appellate judges in the governmental courts). Each party submits 2 different briefs on appeal (the opening and closing brief), with references keyed to the original record. Each document and page in the original record will be numbered, so that a brief reference will appear as "1-15" (meaning, document number 1, page 15, for example). Also, upon the grant of an application or motion by a party, an appeal may be bifurcated, with the 3-judge NPC Court of Appeals hearing one issue first, if the issue could be dispositive of the whole appeal and resolution of the issue in one way could result in substantial savings of time and money to the parties. Also, each party will be permitted 2 interlocutory appellate proceedings during the district-court proceedings to obtain interlocutory appellate relief. For example, if the trial-court judge fails to disqualify himself when requested to do so, one of the parties may move in the Court of Appeals to have the NPC trial-court judge disqualified, but only for cause. (It should be noted that any NPC judge can be removed at any time without any NPC proceedings with the consent of all of the parties, but only if the Submission Agreement has named a successor judge or the parties agree to the successor.) Another such preliminary appellate proceeding could be to have the NPC C ourt of Appeals rule on a critical evidentiary issue, resolution of which issue could result in substantial savings of time and money to the parties.
6. Final Award: The "Final Award" is the award which becomes final under NPC rules after all NPC appellate remedies are exhausted. The Final Award could be the final decision of the NPC trial-court judge or an appropriate award of the NPC Court of Appeals.
7. Judgment on Final Award: The NPC Final Award may then be entered as a judgment by any of the parties in any federal or state court of competent jurisdiction, which may be the local United States District Court or, for example, the Supreme Court of the State of New York. The Final Award of the NPC becomes a judgment of the governmental courts in such way. 8. Enforcement of Judgment: This governmental-court judgment based on the Final Award is then enforceable as any other judgment of the governmental courts, including the advantages of Full Faith and Credit in the governmental courts of the sister s tates, as required by the United States Constitution. The judgment creditor can use "supplementary proceedings" in the governmental courts to locate assets of the judgment debtor; and the judgment credit can use a sheriff or marshal to seize and sell asse ts of the judgment debtor.
A major difference between the governmental courts and the NPC is that the parties in NPC litigation choose their own judges: 1 trial-court, 3 appellate and a limited number of successor judges. This selection procedure begins when the parties review num erous detailed Questionnaires submitted to the NPC by attorneys (including some retired governmental-court judges) willing to serve as NPC judges. These verified Questionnaires provide such information as (i) the 20 areas of commerce with which the NPC ju dge is most familiar (such as automobile distribution; toys and games; book publishing); (ii) the 10 fields of law (with 4 subdivisions for each) in which the NPC judge is most experienced; (iii) citations to 10 judicial opinions in actions handled by the NPC judge as attorney; and (iv) the percentage of his time devoted to different parts of his law practice over the past years. By careful review and consideration of this substantial amount of information on the NPC judges, the parties and their attorne ys should be able to select a number of NPC judges having the skills required to understand and deal with the issues effectively and efficiently. In other words, the NPC judges can be selected to handle cases of the type in which they are most experience d.
Technical skills are not enough. Each of the parties should be confident that the NPC judges have no conflicts in interest. The judges of the governmental courts are not necessarily bound by judicial standards which the ordinary man (including many lawy ers) would believe should apply to governmental-court judges, thus creating the possibility of an appearance of judicial impropriety to the uninformed layman and lawyer. But in the NPC, the NPC judges represent and warrant to the parties, in the Submissi on Agreement, that they have none of a series of possible conflicting interests or relationships, even if the NPC judge's verified Questionnaire does not disclose the needed information. Thus, the NPC is attempting to maintain, if not create, the highest standards of judicial professionalism. It is hoped that the legislatures will adopt these standards for the judges of the governmental courts. (it should be pointed out and strongly emphasized that many of the governmental-court judges maintain these hi ghest judicial standards on a voluntary basis, but there is no listing of such judges and, in any event, the parties in the governmental-court actions cannot pick and choose their own judges.)
To assist in NPC judge selection, the parties and their attorneys will receive from the NPC certain information about all NPC cases in which each of the NPC judges under consideration was previously selected and appointed as one of the NPC judges. This b asic information about each NPC judge candidate will enable the parties and their attorneys to (i) consult past litigants and their attorneys about the judicial qualities of these NPC judges (although there should be no breach of the Submission Agreement provision and duty not to disclose confidential information about the action); (ii) as to each case, the total number of hours devoted by the NPC judge and the aggregate dollar amount of Court Fees charged for the NPC judge's time; and (iii) the number of months required to complete each case.
During the NPC proceedings, any one or more of the NPC judges may die or become incapacitated or disqualified to serve as an NPC judge. The successor judges named in the Submission Agreement will be appointed by the NPC, in the order set forth in the Subm ission Agreement. Each successor judge will execute a supplement to the Submission Agreement, becoming a party to it as a condition of his appointment. As in federal practice, an NPC judge may become disqualified "for cause". If an NPC judge denies a part y's motion to have the NPC judge "recuse" or disqualify himself, the party may have the issue reviewed by the 3-judge NPC Court of Appeals or the remaining NPC judges appointed to the case. This review may take place by oral or written motion and/or by i nterlocutory or final appeal. The parties should recognize that, as in federal practice, it may be the duty of each judge to deny such a motion in absence of actual disqualification for cause or appearance of impropriety. At any time by consent of all of the parties any or all of the NPC judges may be removed (see Section G-5 above).
Each NPC judge advises the NPC as to the hourly rate he/she seeks for his/her judicial services (which will vary from judge to judge, thereby permitting price competition among the NPC judges and the opportunity for parties to appoint NPC judges having th e degree of experience and skills required for the type of dispute; an attorney experienced in airplane-crash cases may be able to charge more than attorneys experienced in small-claims court litigation, for example). The NPC advises each party of these hourly rates prior to NPC judge selection and appointment. As a result, parties and their attorneys are able and encouraged to select NPC judges based on (i) professional qualifications; (ii) basic data on prior performance as an NPC judge; (iii) recomme ndations by parties and their attorneys previously appearing before the NPC judge; and (iv) the hourly rates. The information about each NPC judge will be provided by the NPC. Parties and their attorneys are instructed not to make any direct or indirect ex parte contact (contact about the case without prior notice to the opposing party and opportunity to be pres ent) with any appointed or prospective NPC judge on a case other than what may be permitted under federal practice. Each NPC judge is under the duty to report any prohibited ex parte contact to each of the other signatories to the Submission Agreement (w ho are the opposing party, the other NPC judges, and the NPC). Each month, the NPC will bill the parties (in accordance with the fee allocation set forth in the Submission Agreement) an amount equal to the judicial fees to be paid by the NPC to each judge plus a markup of 20%. (The NPC markup provides the NPC with in come for marketing expenses; judge recruitment, training and supervisory systems; record-keeping; direct administrative costs; expenses for current and future facilities; personnel and personnel training; other overhead expenses; taxes; and profits.) Also, upon the execution of the Submission Agreement, the parties will pay the NPC Filing Fee (as negotiated and allocated) ranging from $25 to $ 100 or more, based on (i) the extent to which the NPC participated in the Submission Agreement negotiations; (ii) the dollar amount involved in the litigation; (iii) the complexity of the action; and (iv) the number of drafts of the Submission Agreement prepared by the NPC.
The Submission Agreement will allocate payment of these Court Fees and the Filing Fee between the parties. For example, the Submission Agreement may provide that 25% of such fees are to be paid by the plaintiff and 75% by the defendant, except all fees i n excess of an aggregate of $3,000 (for example) shall be paid by the defendant. Also, the Submission Agreement may provide that if the plaintiff (for example) states in writing under oath that he is unable to pay his allocated part of the NPC fees, the defendant is to pay 100% of the fees thereafter, during such period of inability of the plaintiff to pay. The defendant has no right to recover any of such additional payments by it, except as an offset to any Final Award in favor of the plaintiff. The p urpose of this provision in the Submission Agreement is to ensure that the NPC judges have no concern as to which party wins the case. Each NPC judge will get paid his full Judicial Fees in any event.
The parties can expect the following costs of litigating their dispute in the NP 1. Attorneys' Fees: Attorneys' fees for each party should be a fraction (perhaps 1/3rd to 1/20th of what the fees would be for the same action in the governmental courts - this is merely an educated guess at this time).
Furthermore, the practice and procedure, and resulting speed, of NPC litigation should enable plaintiffs to obtain experienced and competent legal representation on a wholly contingent-fee basis. Many attorneys may be more willing to accept contingent-fe e cases knowing they will be able to complete the case in 2-3 months, with substantially reduced disbursement outlays. If the attorney wins, he gets paid his legal fee and expense reimbursement at about the same time that his opposing law firm gets paid on its first or second submitted bills for legal fees and disbursements. 2. Discovery Expenses: Discovery expenses are reduced considerably for various reasons including (1) the substantial NPC limitations on discovery; (ii) the elimination of the jury trial (permitting various savings); and (iii) the use of audio-and v ideo-tape recordings of depositions, hearings and trials; subsequent transcription of such recordings is done at rates substantially lower than the prevailing charges for depositions, evidentiary hearings and trials by court reporters. Out-of-pocket disc overy expenses per case may range from nothing to thousands of dollars in NPC litigation.
3. Xerox Expenses: Photocopying expenses are substantially lower in NPC litigation for reasons including (i) oral motions; (ii) reduced discovery opportunities; (iii) bifurcated pretrial proceedings, trials and appeals; and (iv) appeals on the whol e (original) record, wholly eliminating "designations" and "appendixes" on appeal. Xerox expenses should range from approximately $50 to $500 per NPC case. 4. NPC Filing Fee: The Filing Fee payable to the NPC upon execution of the Submission Agreement is described in Section I above. The fee will range from $25 to $100 or more, for the reasons discussed above.
5. NPC Court Fees: The Judicial Fees to be paid by the NPC to the NPC judges are discussed in Section I above. The NPC charges the parties an amount equal to the Judicial Fees plus a 20% markup. The NPC estimates that the Court Fees for a typical NPC case will range from about $300 to $6,000, depending on the complexity of the case, the experience of the NPC judges, the number of days of trial, and the aggressiveness of prosecution of the action or defense by the attorneys for the respective part ies. The elimination of references to magistrates or referees and the elimination of jury trials will reduce the amount of judicial time required on the case. Actually, the NPC judges can be expected to devote substantially more time to the case than th e governmental-court judges would be able to devote to the same case. These Court Fees should be considered in light of the substantial savings in legal fees to be enjoyed by the parties, which savings could amount to many multiples of the NPC Court Fees to be charged. Attorneys working on a contingent-fee basis should be willing to advance these Court Fees (on behalf of their clients) because of the substantial savings in legal time which will result from the NPC litigation, and the speedier dispositio n of the case (with resulting speedier payment of legal fees and expense reimbursement to the attorney if he wins the NPC case).
6. Lexis Fees: (See Section K-4 below). Fees for use of NPC's Lexis facilities should range from nothing to $500 per case, it is estimated, and any use of Lexis may effect substantial savings as to Court Fees and parties' attorneys' fees (by reduc ing the time spent on the case by the NPC judges and the parties' attorneys).
7. Expert Witness' Fees: These fees will range from nothing to many thousands of dollars. The Submission Agreement could place a limitation on the use of expert witnesses (limiting the number of experts and the issues as to which expert testimony may be introduced by any party). Also, the NPC has plans to have mobile video-tape recording facilities available for use by the parties in taking depositions in the offices of the expert witnesses. This will reduce the high costs of expert-witness test imony by reducing the amount of time the expert is required to spend on the matter. Often, most of the time of an expert witness is spent waiting in the governmental courts to be called as a witness. Use of video-tape recordings of his testimony instead of live testimony will reduce the experts' fees. Also, suitable scheduling by the parties and the NPC trial-court judge would accomplish the same objective and permit live expert testimony.
In contingent-fee cases, particularly, it can be expected that the defendant will agree to pay (for consideration, of course, reflected in the Submission Agreement) most if not all of the NPC Filing Fee and Court Fees (which includes the Judicial Fees pai d by the NPC to the NPC judges), The plaintiff in a typical contingent-fee case can expect to pay very little in out-of-pocket litigation expenses, probably amounting to no more than a few hundred dollars, most or all of which would probably be advanced b y the attorney who has agreed to represent the NPC party on a contingent-fee basis.
Various NPC services and facilities are available to the parties, their attorneys and the NPC judges, as follows:
1. Litigation Forms: The following NPC litigation forms are available (at no cost) to the parties and their attorneys (and can be filled in rather than retyped, to speed up the litigation: (i) for audio and video tape recorded depositions, evidenti ary hearings or trials; (ii) to obtain letters rogatory or commissions for the issuance of out-of-state subpoenaes; and (iii) for various types of NPC discovery notices and requests.
2. Model Submission Agreement: The model form of Submission Agreement and supplemental agreements are kept on word-processing tape and disc for use in preparing revised drafts and finally the copies of the Submission Agreement or amendments or supp lements thereto for execution by the parties, the NPC judges and the NPC.
3. Tape-Recording Facilities: Facilities for the recording of depositions using audio- or video-tape are available at the NPC, 325 W. 45th Street - Suite 201, New York, New York 10036. Written transcriptions of the recorded audio portions can be o rdered through the NPC or independently through third persons. The NPC plans to develop facilities for the taping of depositions in other locations (using mobile units). such as in the offices of expert witnesses. to reduce the fees charged by expert witnesses (mostly for wastefu l waiting in the governmental courts). By consent of the parties, the depositions of expert witnesses could be used instead of live testimony. Billing for use of these facilities shall be to the party ordering them.
4. Lexis: The NPC's Lexis facilities may be used by the parties, their attorneys and the NPC Judges, but only for issues relating to the action. Lexis time so used (1) shall be billed to the ordering party, or (ii) shall be billed, in the case of orders by an NPC judge, in the way Court Fees are allocated between the parties pursuant to the Submission Agreement.
5. Distinctive Covers and Backs: The attorneys for each of the parties will receive at no cost a supply of printed covers and backs for NPC litigation documents, made distinctive by the use of a bright color. These distinctive supplies, when used, will permit easy identification and confidential treatment of the litigation documents and the information contained within.
6. Pre-Printed Captions: The attorneys for each of the parties will receive at no cost a reasonable supply of sheets of paper with preprinted captions for the NPC action (8-11/2 x 11 inch white, 20 lb. bond).
The NPC is a division of Paralegal Institute, Inc., a New York business corporation (for profit), with its principal place of business at c/o Carl E. Person, Esq., 325 W. 45th Street - Suite 201, New York, New York 10036, telephone (212) 307-4444. From 1 972-1989, Paralegal Institute, Inc. conducted the Paralegal Institute, a training program for legal assistants (the 2nd such program in the United States), and trained approximately 4,000 students during that time. Paralegal Institute was licensed during that period by the New York State Education Department. Carl E. Person, the founder and Director of Paralegal Institute, is the President and sole shareholder of Paralegal Institute, Inc. Mr. Person has been a member of the New York bar since 1962, and since 1970 has been engaged in litigation of various type s, primarily in the federal courts.
Mr. Person is the Chief Judge of the NPC, a title which is used to emphasize the intended parallel between the NPC and the federal court system (the NPC adopting federal practice and procedure, except as modified by the Submission Agreement). His activit ies in the NPC are of an administrative nature. The judicial duties in each NPC case are the responsibility of the NPC judges selected by the parties.
As part of its continuing efforts in improving the nation's system for the delivery of legal services, Paralegal Institute, Inc. has been (1) developing a highly computerized lawyer referral service (using substantially the same Questionnaire as completed by the NPC judges; in fact, the NPC is a direct offshoot of the developing computerized lawyer referral service); and (ii) a credit card system for the purchase of legal services by consumers and small business.
Mr. Person was the first attorney in the country to sue for the right of lawyers to advertise their legal services. (The NPC is one method of permitting attorneys to market their skills, in the form of "judicial services" rather than "legal services".) Al so, Mr. Person sued to have the American Bar Association Rule DR 7-109(C) declared unconstitutional. The ABA rule prohibits payment of contingent fees to expert witnesses. The higher federal courts ruled against him. (If the lower-court ruling of uncons titutionality had been upheld, parties in the NPC or the governmental courts could have financed the needed testimony by expert witnesses out of any recoveries obtained.) [1995 note: Subsequent cases have permitted parties in litigation to do what lawyer s themselves are prohibited from doing, which enables use of expert witnesses on a contingent-fee basis, if proper precautions and procedures are observed.]
Also, Mr. Person sued for the right to sell shares in lawsuits to obtain needed financing for the lawsuits, and after receiving a favorable governmental-court opinion, he obtained effectiveness on a Regulation A offering through the Securities and Exchang e Commission offering shares in a particular lawsuit. Marketing of lawsuit stocks is difficult, however, because of the newness of the concept and lack of established distribution channels. Accordingly, Carl Person has plans to form a "boutique" securit ies firm to market lawsuit stocks to prospective lawsuit investors.
If you would like to discuss the possibility of negotiating (i) the transfer of a pending governmental-court action to the NPC or (ii) the direct commencement of NPC litigation, telephone the undersigned at (212) 307-4444, weekdays from 9:00 A.M. to 5:00 P.M.
Dated: New York, New York, May, 1978
Carl E. Person,
Chief Judge of the National Private Court
Copyright © 1978, 1995 by Carl E. Person (see extended form above)