Dean's Address

The inevitable results of the development of the complex litigation of today have been many and varied. First and foremost, they added a new dimension both to the length and the complexity of trials, with protracted and extensive discovery producing unprecedented amounts of paper work, making even indexing difficult, much less presentation and use. It created unheard of delays and expense in trial preparation. Secondly, they brought into the courts all over the country a new mobile group of attorneys, the specialists in these kinds of cases, who move from jurisdiction to jurisdiction and coast to coast. Thirdly, they developed sophisticated and complicated economic, sociological, actuarial and other expert testimony, calculated to lay the foundation for ever‑increasing judgments. Fourth, rather than trials consuming mere days of court and litigant time, these actions began to take from several weeks to several months to try, and, in at least one recent case, years. Trials likewise were begun only after many months of discovery, reams of deposition testimony, mounds of paper work, and numerous pretrial conferences. Often there were so many counsel on each side of the table that it has been necessary to designate liaison counsel for each group of litigants, so as to be able efficiently to communicate between the parties and with the trial judge. Litigation costs to the parties have increased to a shockingly high figure in many cases, so much so that, in many of the complex cases, all parties except the very largest corporations usually are compelled to settle simply as a matter of economics, even where they have meritorious claims or defenses.

Yet, essentially our rules of evidence and our general courtroom procedures have remained unchanged for centuries, in spite of greatly expanded discovery and rules, and manuals designed for handling complex cases. judge Joseph F. Weis, Jr. of the Third Circuit recently wrote that: "A Roman lawyer from the 1st Century B.C. initially would feel at ease with the procedures followed in today's courtroom. A barrister of Blackstone's era observing a modern day trial in an American courtroom would find himself in a familiar setting."¹

While you may believe that this is an overstatement of the situation, nevertheless it calls for sober thought and reflection. It is undeniable that change comes slowly to lawyers and the legal profession, and particularly to advocacy.

We can take justifiable pride in the fact that, in spite of the prophets of doom, both the bench and the bar successfully have accommodated to the massive class actions of recent years. Yet it has only been that ‑ an accommodation ‑ not a permanent, nor a substantive change of a system long cherished and observed.

This should not be interpreted to mean that there is either the need, or the desire, to make wide‑sweeping changes in our judicial system in the name of reform. Nor should such substantive changes be undertaken, unless and until we are satisfied that reform is necessary. Yet we are being subjected to increasing pressures and attacks to make immediate and drastic changes in our system, even to the extent of abandoning some of the essential safeguards.

Typical of such proposals is the increasingly suggested use of arbitration in which disputes, with or without the consent of the parties, would be relegated to an administrative system in which the decision of one to three non‑lawyer arbiters, following hearings in which even the most rudimentary rules of evidence could well be ignored, would determine individual rights and remedies. Anyone who has ever tried cases before administrative bodies or arbitrators will instantly recognize what disastrous results this kind of an alternative could produce.

A variation upon this theme is the so‑called "mandatory non‑binding arbitration" proposal which has been tried on an experimental basis in some federal district courts, and which has been the subject of legislation introduced in Congress. While this proposal has encountered considerable opposition, especially from Senator Howell Heflin of the Senate Judiciary Committee both on constitutional and policy grounds, nevertheless it is being urged by the Department of Justice and others. The latest statement of a representative of the Department of justice was made by Assistant Attorney General Maurice Rosenberg, who heads the Office for Improvements in the Administration of justice, and who has said:

"...I would see putting arbitration ahead of the jury trial right as merely establishing a different procedure and a different technique and not infringing the substance of the right."

"Senator Heflin would allow arbitration only on a consent basis, but one of the things we find is that if you say to litigants, and particularly to their lawyers, 'You may do this if you are willing to,' they don't avail themselves of the opportunity."

"Any time a lawyer is confronted with a choice, the lawyer will tend to stay with the standard traditional process rather that opt for something different. The lawyer is anxious to avoid any unexpected, bizarre or disastrous result on the principle of taking the known evil rather than an unknown danger."²

I submit that such a proposal for arbitration even though "mandatory and non-binding" can neither save judicial time nor reduce litigant expense. It is extremely doubtful that any substantial differences of the parties would be finally determined by such a proceeding; that either or both parties would proceed to a judicial review; that it would do nothing but add an additional layer of fruitless litigation, thereby adding both expense and delay. Such proposals already have been officially opposed by the American Bar Association, but that opposition has not caused their demise. In fact, positions such as that taken by Professor Rosenberg have been increasing. Yet, until this time, I know of no official opposing position which has been taken by the Academy, or other organizations of experienced advocates. I am satisfied that those here would concur with Senator Heflin's criticism of arbitration on both constitutional and policy grounds; that putting an obstacle in the way of a jury trial might infringe the 7th Amendment; that an arbitration program lacks essential elements of a justice system, namely, a court, a judge and a trier of fact, both of whom take an oath, whereas arbitrators are under no such compulsion. Unless we are alert to oppose this kind of legislation, both nationally and locally, it would appear highly probable that we will find it imposed upon our clients, even without their consent.

Another drastic, and in my judgment unwarranted, proposal is the complete abolition of diversity jurisdiction of the federal courts. Two fundamental arguments have been advanced in support of this recommendation. The first is that local prejudice, which was the basis for diversity jurisdiction, long since has disappeared in our complex, fluid and mobile society, so that its protection no longer is needed. Second, it is contended that the elimination of diversity jurisdiction would relieve the federal district courts of a large percentage of their civil caseload, estimates being as high as 35 % of their civil case docket. I submit to you that both these arguments are without sound, logical support. As to the first, any experienced trial lawyer, who has ever tried cases in rural courts or even in certain metropolitan areas, is well aware of the ever present hazard to a party who is a stranger to that community, when opposing a local resident in the courtroom. The inborn and subconscious prejudice for one's own friends and neighbors makes a fair and impartial trial virtually impossible. In such circumstances, resort to the federal court by the non‑resident party, particularly when that court usually sits in a metropolitan setting, or can better mitigate the local situation, is mandatory if justice is to be done.

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