Tucker, John A., Jr.

English

University of Denver

Denver Law Review Volume 37 Issue 2 Article 5 May 2021 Trial by Lawyer Panel: A Solution to Trial Court Backlogs? John A. Tucker Jr. Follow this and additional works at: https://digitalcommons.du.edu/dlr Recommended Citation John A. Tucker, Jr., Trial by Lawyer Panel: A Solution to Trial Court Backlogs?, 37 Dicta 115 (1960). This Article is brought to you for free and open access by the Denver Law Review at Digital Commons @ DU. It has been accepted for inclusion in Denver Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. MARCH-APRIL 1960 DICTATRIAL BY LAWYER PANEL:A SOLUTION TO TRIAL COURT BACKLOGS?BY JOHN A. TUCKER, JR.Mr. Tucker received his LL.B. from theUniversity of Denver College of Law in 1959.A fundamental problem that faces litigants in personal injuryjury cases is the delay from the time they are at issue to the timewhen they finally reach trial. The Institute of Judicial Administra-tion reports that in 1959 this time averaged 10.1 months in the statecourts.'Pennsylvania has endeavored to remedy its problem by enact-ing, in 1952, a Compulsory Arbitration Statute." It provides thatthe courts of common pleas3 and the municipal court of Philadel-phia4 may adopt rules of court compelling cases at issue where theamount in controversy is $2000 or less and where the subject in-volved is not real estate, to be tried to a panel composed of threeattorneys from that judicial district.5 Furthermore, where the caseis not yet at issue or where a suit has not been filed, the parties mayagree to refer it to arbitration, with the agreement of reference tocontain those facts and issues to be arbitrated.6The three member panel is appointed by the prothonotary,alphabetically, from a list of lawyers who agree to act, unless therules of court provide some other method of choice.7 Each boardusually sits for one case except in Philadelphia where it sits forthree cases." No more than one attorney from a single firm shallsit on the same case." The board is appointed after the case is atissue or after the filing of the agreement of reference, upon prae-cipe filed by counsel with notice to opposing counsel. 10 The hear-ing is called by the chairman, who is usually the first person on thealphabetical list, and may be held either in a courtroom or in theoffice of one of the arbitrators.1 I1 Institute of Judicial Administration, State Trial Courts of General Jurisdiction Calendar StatusJudy i (1959). The some report shows Denver's District Court has a blacklog of six months. Id. at 1.2 Pa. Stat. Ann. tit. 5 If 1-45 (Purdon Supp. 1958). The plan was an amendment to an existingarbitration statute passed in 1836. Pa. P.L. 715 (1836). Mr. Walther E. Alessandroni, Chancellor, Phila-delphia Bar Association, states that it was thought less complicated to amend the original statute thanto draft an entirely new act. He suggests that as a result the name "Compulsory Arbitration" attachedto th- plan. A hetter title, he believes, would be "Trial by Lawyer Panel." The writer has adoptedMr. Alessandroni's suggestion in the title to this note. Letter from Hon. Walther E. Alessandroni, Chan-cellor, Philadelphia Bar Association, to DICTA, Nov. 6, 1959, an file in the DICTA office (hereinaftercited as Alessandroni; Letter of Nov. 6, 1959).3 The Courts of Common Pleas are courts of general jurisdiction within their respective counties.Pa. Stat. Ann. tit. 17 1 251 (Purdon Supp. 1958).4 The original statute was amended in 1957 to include the Philadelphia Municipal Court. Pa. Stat.Ann. tit. 5 If 23, 30, 57, 73 (Purdon Supp. 1958).5 Pa. Stat. Ann. tit. 5 1 30 (Purdon Supp. 1958); Pa. Ct. of C.P. (Columbia County) R. V 1 3;Philadelphia, Pa. Municipal Ct., R. for Arbitration I.6 Pa. Stat. Ann. tit. 5 I 30 (Purdon Supp. 1958).7 Pa. Stat. Ann. tit. 5 I 31 (Purdon Supp. 1958).8 Philadelphia, Pa. Municipal Ct., R. for Arbitration II D.9 Pa. Stat. Ann. fit. 5 1 31 (Purdon Supp. 1958). Several counties provide that no two attorneysrelated by blood or marriage may sit as board members on the some board, nor may an arbitrator sitwho is related by blood or marriage to a litigant. Pa. Cf. of C.P. (Columbia County) R. V I 5.10 Pa. Stat. Ann. tit. 5 1 31(1) (VIII).11 The time lapse between appointment of the panel and the hearing varies. Compare Philadelphia,Pa. Municipal Cf., R. for Arbitration III A, where the chairman may fix the date of the hearing notless than 15 days nor more than 30 days from the date of appointment of the board, with Pa. Ct. ofC.P. (Columbia County) R. V 1 8 which provides that the chairman may set the date for the hearingnot less than 10 nor more than 20 days from appointment of the board.MARCH-APRIL 1960Each county establishes the amount paid to the panel members.This ranges from ten to fifty dollars per case with an extra ten dol-lars for the chairman.12 The key to the program is that a litigantmay appeal to a jury trial de novo; however, he must first reim-burse the county for the amount paid to the arbitrators.13 The ap-pellant cannot recover this amount in any subsequent proceeding.14No record is kept of the proceeding, but upon demand of eitherparty, a reporter must be provided and a record taken. The deman-dant then is charged with the cost of the record.15 Although mostof the county rules provide that the hearings shall be conducted,"with due regard to the law according to the established rules ofevidence ".... 16 the decision of the panel may not be set aside be-cause such rules were not followed since the appeal is to a de novojury trial.CONSTITUTIONAL ISSUESTrial by Jury in Civil CasesThe Pennsylvania Supreme Court sustained the constitutionali-ty of the statute in Application of Smith.'T In doing so, it rejectedpetitioner's argument that the rules of the Lancaster county courtof common pleas and the statute authorizing them were violationsof the Pennsylvania constitutional guarantee of a trial by jury incivil cases.18 The court reasoned that a statute making arbitrationthe final determination of the parties' rights would violate the con-stitution.19 Since the litigants have the opportunity of a trial by juryafter the arbitration proceedings, the constitutional guarantee issatisfied. However, this opportunity "must not be burdened by theimposition of onerous conditions, restrictions, or regulations whichwould make the right practically unavailable. ' 20 The payment of12 Pa. Stat. Ann. fit. 5 9 129 (Purdon Supp. 1958); Institute of Judicial Administration, CompulsoryArbitration and Court Congestion 8 (1959). Compare Dill v. Cochran, 15 D.&C.2d 692 (1958) where thecourt allowed double payment for two cases that were consolidated into one hearing, with Philadelphia,Pa. Municipal Ct. R. for Arbitration V A which states that all cases arising out of the same transactionare considered to be one case so for as compensation for arbitrators is concerned.13 Pa. Stat. Ann. tit. 5 1 71 (Purdon Supp. 1958). This section was amended in 1956 to provide thatthe appellant need not pay arbitrators' fees over fifty percent of the amount in controversy. The countysustains the costs over fifty percent.14 Ibid. See also Bucciorelli v. DiCicco, 14 D.&C.2d 61 (1958).15 Pa. Stat. Ann. tit. 5 1 121 (Purdon Supp. 1958).16 Pa. Cf. of C.P. (Columbia County) R. V 1 9.17 381 Pa. 223, 112 A.2d 625 appeal dismissed sub nom Smith v. Wissler, 350 U.S. 858 (1955).18 Pa. Const. art. I 1 6 provides, "Trial by jury shall be as heretofore, and the right thereof remaininviolate." The court in Application of Smith, supra note 17, also refused arguments that the limitationto claims of $1000 was class legislation and that the power of counties to establish their own rules ofcompensation for arbitrators was a violation of that section of the constitution providing for uniformoperation of the laws regulating the courts.19 Accord, Cutler & Hinds v. Richley, 151 Pa. 195, 25 Ati. 96 (1892).20 381 Pa. at 231, 112 A.2d at 629.Lunch Withk.ockbh Syste, -n.of Denver24 HOUR BREAKFAST AND LUNCH SERVICEAt 1649 Broadway DenverDICTAMARCH-APRIL 1960non-recoverable arbitrators' fees was held not to be such a restric-tion. It was reasoned that if the recovery of court costs could bewithheld by the legislature, so could arbitration fees.21The conflict of the statute with the fourteenth amendment tothe federal constitution was not directly raised. The United StatesSupreme Court has held that a state may provide an arbitrationprocedure it deems proper so long as its choice is not "unreasonableor arbitrary.'22Such an arbitration statute probably would not violate the juryprovision in Colorado's constitution. The constitution provides, "Theright of trial by jury shall remain inviolate in criminal cases; buta jury in civil cases in all courts .... may consist of less than twelvepersons, as may be prescribed by law. '23 This might be construedas allowing jury trials in civil actions only when the legislature hasexpressly so provided. However, in Denver v. Hyatt,24 the court, indeclaring unconstitutional a statute providing for a verdict bythree-fourths of the jury, held, "the right of trial by jury in civilcases, as provided by the common law is preserved in all its essen-tials, except the one of number. ' 25 Therefore, the reasoning of theSmith26 case would seem applicable: 1) the guarantee of a jurytrial at common law meant a jury trial at some period before a finaldetermination of the rights of a party, and 2) the right to jury trialcould not be burdened by unreasonable conditions. It would thenbe a policy consideration as to whether the payment of non-recover-able arbitrators' fees was such a restriction.The Full Faith and Credit ClauseAny arbitration program will be ineffective if sister states do notenforce the judgments rendered as a result of the awards. Recent-ly,2 7 an Ohio court of common pleas refused to recognize an awardsigned by a prothonotary of Mercer County, Pennsylvania as avalid judgment enforceable under the full faith and credit clause ofthe Federal Constitution. 28 Since that case, the statute has beenamended to read,... upon being approved by the court, such awardand approval shall be regarded as a judgment ofthe court, and the award and approval shall be re-garded and have the dignity of judicial proceed-ings within the meaning of Article IV § 1 of theUnited States Constitution.29Even as here where the state's local policy is declared, theUnited States Supreme Court is the final arbiter of what consti-tutes a judgment within the full faith and credit clause.30 Whetheran award of an arbitration board is a judgment within that clauseseems never to have been ruled upon by that Court. The most au-21 Ibid. The court commented by way of dictum that to make an appellant pay back the entirecost where the amount in controversy was small would be unfair. This led to the amendment found innote 12 supra.22 Hardware Dealers Mut. Fire Ins. Co. v. Glidden Co., 284 U.S. 151, 158 (1931).23 Colo. Const. art. II I 23.24 28 Colo. 129, 63 Pac. 403 (1900).25 Id. at 146, 63 Pac. at 409.26 Application of Smith, 381 Pa. 223, 112 A.2d 625 (1955).27 In McClure v. Boyle, 141 N.E.2d 229 (Ohio 1957).28 U.S. Const. art. IV, 1 1.29 Pa. Stat. Ann. tit. 5 I 58.1 (Purdon Supp. 1958).30 Milwaukee County v. M. E. White Co., 296 U.S. 268 (1935).DICTAMARCH-APRIL 1960thoritative decision is by the Maryland Supreme Court which up-held enforcement of a judgment pursuant to an arbitration awardunder an earlier Pennsylvania statute.31The Colorado Constitutional Arbitration ProvisionThe Colorado constitution authorizes the legislature to providefor arbitration legislation.32 The Colorado Supreme Court has heldthat under this provision the legislature is empowered to establishonly voluntary arbitration programs. 33 Therefore, it may be arguedthat by the mere inclusion of such a provision the framers of theconstitution intended to preclude the passage of compulsory arbi-tration legislation.ACCOMPLISHMENTS OF THE PLANA survey conducted by the Institute of Judicial Administrationpresents the most comprehensive report of the Pennsylvania plan'ssuccess. 34 The findings of the survey are summarized in part in thefollowing paragraphs.Appeals from Arbitration AwardsIn the various counties, the average number of cases decidedduring each of the years 1956 through 1958 was 2,181.35 From thetotal cases arbitrated, 3.1% were appealed in 1956, 3.8% in 1957, and4.2% in 1958. Of these cases, reversal or substantial modification ofthe award was achieved only in 11.5% of the cases appealed in1956, 11.1% in 1957, and 10.5% in 1958.36No figures are available on the number of appeals taken fromawards made in the Philadelphia municipal court, but more than15,000 cases have been processed since arbitration was commencedin February, 1958.3731 Wernag v. Pawling, 5 G.&J. 500 (Md. 1833); cf. Maxwell Shapiro Woolen Co. v. AmertotronCorp., 158 N.E.2d 875 (Mass. 1959), where the court, in deciding another question, assumed an arbi-tration award should be given full faith and credit.32 Colo. Const. art. XVIII 1 3.33 Compulsory Arbitration, 9 Colo. 629, 21 Pac. 274 (1886).34 Institute of Judicial Administration, Compulsory Arbitration and Court Congestion (1959); seealso, Arbitration Commission, Philadelphia, Pa., Statistical Report, Feb. 17, 1958 to Jun. 33, 1959 (1959);Comment 2 Vill. L. Rev. 529 (1959); Comment 8 Stan. L. Rev. 410 (1956).35 Institute of Judicial Administration Compulsory Arbitration and Court Congestion, 6 (1959).36 Id. at 30.37 Letter from Hon. Frank Zal, Arbitration Commissioner, Municipal Court of Philadelphia, toDICTA, Nov. 4, 1959, on file in the DICTA office (hereinafter cited as Zof: Letter of Nov. 4, 1959).* Files* Desksa 9 Chairs9 Tables1641 California St.=- __ _ _ Denver 2Phone KE. 4-0241DICTAMARCH-APRIL 1960The Effect on Calendar DelayThe Institute of Judicial Administration's study indicated thatabout one-third of the counties questioned found a decrease in cal-endar delay in jury trials; several counties noted that delay was de-creased in non-jury trials as well. 38 Two counties which saw nospeed-up in jury trials were, nevertheless, able to eliminate a por-tion of the regular trial term as a result of the plan. Moreover, anincrease in small claims was noted without a corresponding clog-ging of the courts.3 9In Philadelphia, the effects were more dramatic. Mr. FrankZal, Commissioner of Arbitration, enumerated the results: 1) adrastic reduction in the processing time for cases of $2000 or under,2) a greater flexibility in the scheduling of cases, 3) an incentiveto settle cases privately, 4) the opportunity to increase the munici-pal court's jurisdiction from $2000 to $5000, 5) a decrease in thebacklog of the court of common pleas (which had not adopted com-pulsory arbitration), and 6) a faster disposition of cases in the$2000 to $5000 range by the municipal court. He attributes the suc-cess of the program to the over-whelming co-operation by the mem-bers of the bar, who have offered their time and office space.40The Effect on CostsSeven of the counties reported an increase in cost due to the ex-pense of arbitrators' fees. Twenty-four found no increase and threefound a decrease. One county was able to cancel twelve weeks ofcourt at a saving of $3500 per week.41 No cost figures are yet avail-able for Philadelphia.Some Current ProblemsThe support of the Pennsylvania lawyers for the plan seemsoverwhelming. 42 Nevertheless, dissents are to be found both inPhiladelphia and in the counties. In Philadelphia, some lawyerscomplain they must have eight or nine cases referred to them be-fore they fulfill their three required hearings. This is due to thenumber of settlements after referral to a board, but before the hear-ing. Some attorneys who have acted as chairmen have found theburden of contacting the parties and arranging the time and placefor hearing outweigh the usefulness of the plan.4 3In the counties there is a feeling that lawyers should sit onpanels outside their own counties in order "to remove personalitiesfrom arbitration. '44 The counterargument to this view is that theplan is the responsibility of the local bar associations. They mustexercise discipline over their members and settle administrativeproblems. This could not be done if the lawyers were from anotherbar association.4 538 Institute of Judicial Administration, Compulsory Arbitration ond Court Congestion, 6 (1959).39 Ibid.40 Za Letter of Nov. 4, 1959. Mr. Zal reports that initially 2,500 lawyers of the PhiladelphiaBar Association volunteered to serve, but now firms are withdrawing some of their members fromthe arbitrators' list. Ibid.41 Institute of Judicial Administration, Compulsory Arbitration and Court Congestion, 11 (1959).42 Zah: Letter of Nov. 4, 1959; Alessandroni: Letter of Nov. 6, 1959.43 Zah; Letter of Nov. 4, 1959.44 Institute of Judicial Administration, Compulsory Arbitration and Court Congestion, 12 (1959).45 Alessandroni: Letter of Nov. 6, 1959.DICTAMARCH-APRIL 1960The requirement for repayment of the arbitrators' fees is stillbeing attacked, particularly where the amount in controversy issmall. On the other hand, it has been pointed out that full reim-bursement will not necessarily protect a party with a small claim,for if he wins before a panel, the other party may appeal. Thiscould force a compromise of the award.4 6Each of the foregoing criticisms is concerned with the me-chanics of the plan. None attacks its underlying theory. If anotherjurisdiction considers the plan, it must first decide that compulsoryarbitration will solve its own particular judicial problems. If theplan will, the jurisdiction must then determine that it is willng toforego a jury trial in the first instance in exchange for trial by law-yer panel. No jurisdiction other than Pennsylvania has yet madethis decision.4746 Ibid.4T A plan similar to that adopted in Pennsylvania was introduced in the Ohio legislature in 1958,but failed to pass. Ohio H.B. 601 (1958).Throw a line around yourITLEand ABSTRACT ProblemsYes indeed! 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Trial by Lawyer Panel: A Solution to Trial Court Backlogs?

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Trial by Lawyer Panel: A Solution to Trial Court Backlogs?

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