Dean's Address

Before any procrustean actions are taken‑such as terminating personal injury litigation or abolishing diversity jurisdiction‑other less drastic means of improving our court system should be carefully considered‑for example, the suggestion that we adopt a system assessing legal fees against losing parties. The encouragement of fair and timely offers of settlement could significantly facilitate the processing of all types of civil litigation. To this end, a number of successful variations of expedited dispute processing are now being tried in some of our heavily populated court jurisdictions. Various forms of delegated decision making are utilizing simplified procedures with quasi‑judicial officers and a summary trial or a rotating panel of lawyers for specially selected cases. These devices are not diversions from the court, like binding arbitration, because they are only used to promote possible settlement. After expedited decisions by an officer or panel, either party can still insist on a trial, but if they do so they are required to make formal offers of judgment. The party that fares better in the trial result than the rejected offer is entitled to all attorneys fees and costs incurred subsequent to the rejection of the offer.

There are other offer‑of‑judgment devices that could be used to encourage and speed settlements. Under Federal Rule 68 and many counterpart state rules, if a defendant makes a formal offer of judgment and the judgment that the plaintiff obtains thereafter is not as favorable as the offer, the defendant is entitled to post‑offer costs. However, because Rule 68 has been interpreted not to include attorneys' fees, it is rarely used. If attorneys' fees as well as costs were included under Rule 68, an early and responsible offer of judgment could avoid exaggerated claims and extended gamesmanship. In England, where fees are awarded to the prevailing party and where they have the "payment into court" device, it is regularly used and is quite effective in terminating litigation.

Consideration should also be given to encouraging more and earlier settlements by modifying the traditional American rule that each side is responsible for their own legal fees absent a contract provision, a statute providing for fees, or exceptional circumstances such as bad faith litigation. It is increasingly common in private suits to enforce important public policies, such as in federal civil rights and wage and hour cases, to provide by statute that the prevailing party may obtain a fee award. A case can be made for the adoption in all civil actions of a rule awarding fees to prevailing plaintiffs. That, together with prejudgment interest, as advocated in last year's Dean's Address, would finally provide full compensation.

The present American rule undercompensates plaintiffs and does not make them whole. At the same time, defendants who make reasonable settlement offers should be able to affect their liability for their own and their opponent's post‑offer legal fees, as well as costs, and should have the right to be reimbursed if they must pay legal fees to resist unnecessary litigation. We should give plaintiffs their fees on prevailing. Defendants should get their post‑offer fees with offer of judgment decisions in their favor, and they should get all their fees when the claims against them are determined to be quite clearly frivolous. This proposed method of awarding fees could stimulate fair and earlier offers from both sides and have a positive impact on the litigation explosion.

Much of the specific criticism about litigation abuses by lawyers comes from federal judges and law professors and principally applies to the growing number of difficult and complex cases found mostly in our federal courts. There is a far greater danger of abuse of the adversarial process in large, complex litigation than in an ordinary case. Without the discipline of economic restraints and readily established goals and strategy, excessive discovery and motion practice often result, generating irritation and resentment, and in turn more retaliatory discovery and motion practice. Then, after substituting continuous discovery for thoughtful analysis and losing sight of the issues and interests of the client, the adversary process degenerates into a contentious fight without professional civility or rational control. Large law firms and large corporations involved in large cases seem to be the prime culprits or victims of this loss of direction. However, this does not mean that the abuses only come from the defense. The very large fee potential in these cases for plaintiffs' counsel attracts some of the slickest and most uninhibited gameplayers and hired guns of the trial bar and provides a strong temptation to dissemble, overstate and mislead.

Because these large economic disputes can generate very substantial fees, lawyers are often viewed as having demonstrated little initiative in cutting litigation costs or facilitating settlement. Settlement of these cases too often comes at or near trial after extensive, costly discovery and numerous court appearances frequently aimed at establishing primacy on peripheral issues. This is not just the result of profit‑seeking by lawyers. Contentious clients or clients seeking competitive advantage that appears available by lengthy and costly litigation bring much of this on themselves. Whatever the reason, however, the result of these extended, expensive lawsuits is an undue burden on the courts and an adverse reflection on the bar and our judicial system.

The inadequacy of currently available sanctions and protective orders is magnified in a complex case. Effective control of the discovery process requires inordinate amounts of judicial time and effort unless lawyers display restraint, cooperation and professional responsibility. Unfortunately, because a significant number of lawyers handling these difficult cases have not acted in a responsible manner, Federal Rule 37(g) has recently been adopted authorizing the court to require a party who fails to participate "in good faith" in the framing of a discovery plan to pay reasonable expenses for such failure.

The adoption of Rule 37(g) appears to be only the beginning of an effort by the courts to curb adversarial excesses. Proposed amendments to Federal Rules 11, 16 and 26 call for increased involvement of district judges in all pretrial phases of litigation and would mandate sanctions against attorneys who file pleadings, motions, or discovery requests or responses "for any improper purpose." Examples of improper purposes spelled out in the amendment are harassment, unnecessary delay and needless increase in the costs of litigation. These amendments now awaiting Supreme Court approval, require the trial court to become involved early in the discovery process and apply sanctions for discovery abuses. Even more significant, they encourage the court to manage the litigation from the start in order to avoid protraction, to facilitate settlement, and to consider extra‑judicial procedures to resolve the dispute.

There is no question that complex cases need a great deal of court involvement and attention, but requiring the trial judge to manage the litigation as these Rules contemplate seems to accept the proposition that trial lawyers cannot be expected to be self‑policing and responsibly avoid improper litigation tactics. We cannot accept this proposition if we wish to maintain our standing as a profession. There is serious question whether court management can work effectively without counsel's full cooperation in much of the major litigation that causes our problems. Most judges do not have or will not take the considerable amount of time needed to manage the difficult and challenging case. Nevertheless, the rule changes are understandable because a greater effort is urgently needed to achieve better, more responsible trials to lessen the even greater burdens on our appellate courts. The growth in our appellate caseload is several times that in the trial courts because of increasing dissatisfaction with trial proceedings and results. If the trial has been corrupted or error‑filled, new trials must be granted which further clog the system.

Some of the more competent and responsible federal judges have for some time exercised significant control of the big case throughout the pretrial procedures and even during the trial. But they have recognized the need for professional responsibility by the contesting lawyers and insist on their civility and cooperation. A few even encourage counsel to work together and with the court to insure the selection of a jury that can understand the issues and the evidence. While counsel don't have to agree on the jury selection, they are asked to agree on the exclusion of the obviously unacceptable jurors.

Trial lawyers know that the selection of a competent jury is particularly critical in a complex case, for the jury system only really works in cases that the jury can understand. If our jury selection and trial processes make it impossible for a jury to understand the facts of a case or to apply the law properly to those facts, due process requires that the jury trial be replaced by a better method of finding the truth and rendering justice. The critical question is can a jury discern the issues and determine the controlling facts in a protracted and complex lawsuit.

Because of the importance in having a competent and responsible jury in protracted, complex trials, counsel are particularly anxious in these cases to conduct a searching voir dire examination of the panel. However, many courts will not permit this in the belief that lawyers seek to improperly influence and manipulate the prospective jurors rather than select a fair and impartial jury. Additional concerns about jury selection and the continued validity of the jury process have recently arisen by the growing use in large cases of jury research, which utilizes the basic assumption that human behavior is patterned and predictable.

The New York Times recently featured a lengthy article on this developing application of the psychological sciences to jury selection. Its practitioners, sociologists, psychiatrists, market researchers and others, use public opinion surveys, in‑depth interviews, computer analyses correlating jurors' backgrounds and attitudes and laboratory simulations of impending trials to help lawyers select jurors likely to favor their side, exclude those likely to be hostile, and identify people who make decisions for emotional rather than logical reasons. The practitioners in this new use of behavior science view jurors not as free, moral agents able to assess impartially where the truth lies, but as organisms whose emotional and mental processes are determined by "predictor variables" such as social status, education, age, sex, personal traits, ethnic origin and religion. Lawyers, of course, have tried for many years to guess how some of these factors influence jurors. Yet, some observers believe that this new behavioral science approach raises serious questions concerning freedom of choice, the nature of reasoning and the capability of carefully selected juries to truly dispense justice.

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