Dean's Address

The Litigation Explosion and the Trial Lawyer’s Changing Role

By David K. Watkiss

Throughout the past year we have seen a widely reported volume of increasing concern and discontent with our judicial system, our adversary process, the pervasive role of lawyers in society, the level of performance and accountability of the legal profession, and the perception that lawyers' economic self‑interests conflict with their clients' and the public's interest in prompt, efficient and economical dispute resolution. Recently proposed rules encouraging courts to police the actions of trial lawyers in an effort to make them less contentious and more responsible pose serious implications for our litigation process. Within our own ranks, a well‑publicized controversy was generated by a re‑examination of the ethical dilemmas of lawyers in discharging their professional responsibilities to both clients and society.

Condemnation of our legal system and the ethics of lawyers has a long, venerable tradition, and trial lawyers have never been particularly liked or even generally respected. However, the broad endorsement of the current complaints and demands for reform bring into question the continued viability of our present form of civil litigation and warrant our attention in this year's Dean's Address.

The following are a few examples of the recent extensive public coverage of our legal problems. "Unclogging the Courts‑The Chief Justice Speaks Out," was the title of a wide‑ranging interview with Chief justice Burger about the backlogs in our courts and the inadequacies of lawyers in U.S. News and World Report. An article by a Harvard Law Professor called, "Our Lawyer‑Ridden Society," appeared in The Washington Post. A Chicago Tribune editorial cartoon showed a bar association speaker announcing, "The Chief justice has predicted that our legal system will crumble under the weight of too much litigation," then asking how the legal profession should respond to this challenge, to which the assembled lawyers roared, "Sue the old buzzard!" A lead editorial in the Salt Lake Tribune under the heading, "Lasting Court Relief Requires All‑Out Modernization Effort," advocated taking control of legal affairs from lawyers and courts because they are philosophically incapable of fashioning the changes needed for our justice system to keep up with our fast‑changing times. The Wall Street Journal followed up one article entitled, "The Litigious Society" with another under the lead, "Kill all the Lawyers? Maybe There's an Alternative." James Reston, under the heading, "Crisis in the Courts," reported in the New York Times on a speech by the Chief justice wherein he predicted that the American system of justice may literally break down before the end of this century. "See You in Court, Our Suing Society" was a cover article in U.S. News and World Report; and the year ended with a feature article in Life magazine's special issue on 1982, entitled, "The Year the Country went to Court."

While headlines about burgeoning litigation should be good news to trial lawyers, the finer print below spelled trouble. This ominous media focus was stimulated by Chief justice Burger early in 1982 in his annual report on the state of the judiciary entitled, "Isn't There a Better Way?" The Chief justice reported a litigation explosion which has resulted in federal civil case filings now increasing nearly six times as fast as the population and federal appellate filings growing sixteen times as fast. Comparable state court figures were twice as fast for civil filings and eight times as fast for appellate filings. The causes‑according to the Chief justice‑are that Americans, because of a growing insecurity and the decline of church, family and neighborhood unity, are seeking judicial relief from personal distresses and anxieties, and remedies for personal wrongs once considered the responsibility of other institutions and not legal entitlements; and that lawyers are failing to fulfill their obligation to serve as healers of human conflicts and to provide mechanisms for resolving disputes in the shortest possible time with the least possible expense and stress on the participants.

In this annual report, the Chief Justice emphasized that this litigation explosion required the American business and legal community to shape new tools for dispute resolution both because the traditional litigation process had become too cumbersome, expensive and contentious, and because neither the federal or state court systems were capable of handling the burdens being placed on them. The Chief justice encouraged moving a number of cases from the judicial system to administrative processes like those used for workers' compensation, or to mediation, conciliation and binding arbitration. The Chief justice suggested some form of administrative process for personal injury and property damage cases, probate, and domestic and child custody disputes; and urged binding arbitration, particularly for large, complex, commercial disputes, criticizing judges and lawyers for wrongly resisting arbitration.

The Chief Justice has also encouraged the abolition of diversity jurisdiction, a reduction in the use of jury trials, and the adoption of a system assessing fees as well as costs against losing parties and even against losing parties' attorneys who burden the courts with frivolous cases. He has stated that we now have too many lawyers while enforcement of ethical standards is virtually non‑existent. He has asserted that pervasive in our legal system are lawyers who strive mightily to win using every tactic available. He has suggested that training the lawyer as a vigorous adversary to function in the courtroom is outdated and that training is now required in non‑judicial dispute resolution. Some of these comments of the Chief justice have been challenged. A number of them, however, have received substantial consideration and support‑even among lawyers.

The growing number of proponents of non‑judicial dispute resolution claim that society must develop ways of reducing adversary trials, the anachronistic confrontation of lawyers as gladiators, and the dollars, talent and energy wasted in preparing and conducting trials. They want to redirect and moderate adversarial skills into a less rule‑ridden and more cost‑effective system. They contend that trial practice is inherently inefficient and that discriminating use of alternatives will increase the productivity and social utility of lawyers.

When the observation is made that expanding litigation is, in fact, a vote of confidence in our present litigation system, critics answer that no one can responsibly claim that our system is fair, efficient, cost‑effective, or filling society's needs. They contend that our adversary process stimulates manipulative advocacy and costly retaliatory excesses; that our fault system denies compensation to many and delays it to all. They question whether we can afford the proliferation of overly contentious lawyers and all the due process that we have given ourselves. In their view, our present litigation system is a destructive force undermining our economy and creating social disharmony. In short, we are accused of having "too many lawyers, too much litigation and too little justice."

This growing discontent reflects a frustration with our apparent inability to continue to function, with time‑encrusted systems and procedures that worked for a less centralized, more self‑sufficient population, with simpler problems, a greater tolerance for injury or injustice, and fewer lawyers. A disturbing reflection of this frustration is the growing threat of major cutbacks in public support for many of our law schools‑not because of bad economic times, but because of a perception of a lawyer glut fortified by a distaste for lawyers' activities.

Much of this discontent and clamor for change is based on oversimplifications or misunderstandings of the problems addressed and the realities of practicing law. It is clear, however, that there is a developing public perception that our justice system is not working and that the failure is principally the fault of lawyers.

There is little persuasive evidence that the increasing number of cases is the result of a less responsible and more litigious society abetted by a much more self‑serving and contentious bar. The most obvious explanation‑ that this is and understandable result of a complex, urbanized society with expanding concepts of individual rights and increasing federal and state involvement‑is largely ignored. Overlooked also is the possibility that this voluminous litigation is a reflection of our political equality and public accountability and may be the price as well as the measure of our freedom. Nonetheless, the system does have serious problems‑problems that the trial bar must address.

We must admit to a rapid expansion in the number of lawyers during the past 2 5 years and a great increase in litigation in the past 15 years. The number of lawyers in America today is growing twice as fast as the population as a whole. From 1960 to the present, lawyers doubled in number and our total is now some 600,000 or approximately I lawyer for every 400 inhabitants. This is three times as many lawyers per capita as England and twenty times as many as Japan.

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