Institute for the Study and Development of Legal Systems

initial lEGAL STUDY

What is a Legal Study?

The primary goal of a legal study is to achieve a consensus on the direction of legal modernization. This is achieved by collecting commentary regarding the operational underpinnings and problems of a dispute resolution process (or the lack of a process) and the facilitation of an informed dialogue on the potential solutions to those problems. The legal modernization could take the form of an adjustment to an existing practical operation of a process or the creation of a process. Part of each study is a determination of what changes require legislation.

Whatever legal modernization plan is devised, it is of primary importance that it be readily integrated into an existing dispute resolution process or derived from an existing culturally accepted dispute resolution mechanism. In order to guarantee the success of the legal modernization effort it is important to rely upon information gathered by a legal study group ("LSG") -- a broad-based group of legal professionals (judges and lawyers) who participate daily in the legal process. They know the operation, problems and potential solutions of the process. Usually, approximately ten to fifteen members in a city, region or district can provide this basic information.

Each legal study entails:

  • assessment of the practical operation of the legal process;
  • identification of the causes of the problems or the needs of the dispute resolution processes;
  • facilitation of the potential solutions to those problems;
  • development of a consensus among the legal opinion leaders, through the critical and practical analysis of the collected public and private commentary;
  • publication of authoritative reports on the modernization plan; and
  • design of the recommendations for reform of the legal process.

A legal study entails four distinct phases to achieve these goals, described below:

Phase One - Assessment. ISDLS conducts meetings with the leading judges and lawyers in the host country. The purposes of the meetings are: (1) to learn how the dispute resolution processes1 function in the host country; (2) to determine what the legal professionals in the host country believe to be the problems or needs within the processes; and (3) to learn what they believe to be the solutions to those problems. During this phase, ISDLS explains how similar problems have been addressed in the U.S. and in other countries. A joint report is issued for this phase by the LSG and ISDLS. Even after Phase One, the assessment of a process continues throughout a study.

Phase Two - Host Country Legal Study Group to United States. In this phase, members of the LSG conduct an examination of the U.S. dispute resolution process, and of the practical workings of the U.S. civil or criminal justice process. The LSG members visit the California federal and state courts and alternative dispute resolution centers and observe the processes in operation. The LSG members confer with judges, experts and lawyers prior to and after the observation of mechanisms and functions in operation to assure full appreciation of its mechanisms and functions workings and goals. During the course of their visit, the LSG decides what topics will be studied in Phase Three. The LSG and ISDLS issue a joint preliminary report which serves as the foundation for the focus of the remainder of the study.

Phase Three - Court Functions and ADR Program. In host countries, ISDLS presents an open seminar in the host country on the chosen topics from Phase Two. The primary purpose of the sessions is to determine the feasibility of introduction of modified U.S. mechanisms and/or functions into the studied process to solve its problems. Each topic of the seminar is presented through authoritative papers, lectures and live demonstrations, followed by public and private commentary. Following the seminars, again, a joint report is issued on the findings of the seminars.

Phase Four - LSG to U.S. for Intensive Study Program. Members of the LSG return to the U.S. to further study the U.S. process or mechanisms determined in Phase Three to have feasibility of likely introduction into the host country process. This phase finalizes the determinations made in the Phase Three report with an emphasis on the steps to be undertaken to introduce the process or mechanisms considered for implementation into the host country legal process. The LSG and ISDLS co-author the final report with recommendations for modernization of the host country systems and legal process.

1The U.S. civil justice alternative dispute resolution functions and mechanisms studies are: arbitration, mediation, early neutral evaluation, case management, summary judgment, and judicial settlement. The U.S. criminal dispute resolution functions and mechanisms studied are: right to counsel, right to appointed counsel, initial presentation to a magistrate, bail, guilty plea, plea bargaining, sentencing, etc.