Nims, Harry D.

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SOME BY-PRODUCTS OF PRE-TRIALHARRY D. Nizms*In the last 25 years changes, almost basic in their character, haveoccurred in our courts. One of these has been the gradual emergence ofwhat is known as "pre-trial." No legislation has been necessary for its de-velopment. It is a dramatic illustration of the inherent power of the courtsto improve their service to the public.Contrasted with the time that has usually elapsed between importantimprovements in common law procedure, the time required for pre-trialto win a definite place for itself has been remarkably brief.Also, in contrast with former changes of this sort, most of whichhave been decidedly mysterious to laymen, pre-trial can be understood byalmost anyone. It consists of informal discussions of cases with a judgebefore they go to trial. Surely this involves no mystery.There is nothing new about such discussions. Courts have usedthem for years in a limited way. They were first employed systematicallyin America about 1929 by the Circuit Court of Michigan (Detroit)under the leadership of Chief Justice Ira W. Jayne; and they speedilybecame what Professor Edson R. Sunderland, our greatest authority onprocedure, has described as "potentially the most effective instrument forshortening, simplifying and cheapening civil litigations that ever has beendevised."Just when, how and where the term "pre-trial" was first used seemsdoubtful. It probably appeared about 1929 or 1930 as the name of theseconferences. In any event, it soon caught public fancy; and newspapersand others now use it to refer to almost anything that happens in a lawsuitprior to the trial.At the outset, the conferences were employed to encourage thesimplification of litigation by agreements as to the facts and as to theevidence to be submitted at the trial. This has been of immense serviceto the public. Before very long, however, valuable by-products emerged.The conferences revealed the merit or lack of merit of the conten-tions of each side and to an increasing degree, in the conferences, theparties decided not to go further with the litigation but to settle it thenand there.Traditionally the courts have emphasized trials and devoted most oftheir efforts, resources and personnel to them and paid little attention topending cases and what they might mean to the parties involved. It wasgenerally believed that the only method available to a court to dispose ofcases on its dockets was to try them. But today, to an increasing extentthey are helping litigants dispose of their controversies while their casesare waiting to be tried.* Of the firm of Nims, Martin, Halliday, Whitman and Williamson, NewYork City.OHIO STATE LAW JOURNALThis has brought public approval, because for a long time courttrials, with the delay, bother and expense involved, have 'had little torecommend them. People continue to go to the courts for help, but in-creasingly they seem to avoid trials.There are good reasons for this. The public believes that trials areunnecessarily costly in time and money. Also, it disapproves vigorously ofvarious methods used in trials, as, for instance, the rules which a hostilelawyer can and does use to prevent a witness, who obviously is honest andhas knowledge of the situation involved, from testifying regarding it orfrom telling his story in a natural way.Again, many people believe that trials are unnecessarily costly notonly in money and time but in unnecessary attendance in court. Constantly,for years those called on jury panels have been disheartened by what theyhave seen and experienced in court. It is an understatement to say thattrials are not popular or approved today by the average person who hashad experience with them. All this could not fail to influence the workand operation of the courts and they have done just that.One result seems to be a gradual but quite definite decrease in recentyears in the percentage of the cases disposed of by the courts which areended by a trial. In some courts, today, that figure is as low as 5%.For instance, in the Supreme (Superior) Court of New York (NewYork and Bronx Counties) in 1942, of the jury cases disposed of, 31%were tried; in 1950, 15% were tried; in 1952, 10%; in 1956, about5%-a falling off in fourteen years of about 84% in the ratio of casesended by trial to the total number of cases disposed of.In the Massachusetts Court in 1924, the percentage was 21%; in1934, it was 13%; in 1944, itwas 14%; in 1955, it was 11%-a similarfalling off of some 47% in 31 years.Presiding Judge Jayne of the Circuit Court of Michigan in Detroitreports as of April 1956, that more than 80% of the civil cases in hiscourt are settled and that four of the eighteen judges of the court spendfull time in pre-trial.The limited use of trials is shown in the 1956 report of the NewYork Judicial Conference.' In the court year 1955-1956, one hundredand six trial judges of the Supreme (Superior) Court2 tried to completion1896 jury cases and 1641 non-jury cases3 , a total of about 6% of thecases disposed of.An additional 2879" were ended during trial by dismissal or dis-continuance, out of a total disposition of 52,328 cases, so that all dis-positions in a trial courtroom were about 12% of the total dispositions.No positive deductions should be drawn from the limited data we1 STATE OF NEW YORK JUDICIAL CONFERENCE, First Annual Report, (1956).2 Id at 17.3 Id at 60.4 Id at 64.[Vol. 17PRE-TRMIL BY-PRODUCTSnow have on these conditions but enough does exist to raise a very seriousquestion as to the extent of the future usefulness of the trial process asa major agency for the disposition of court business.Furthermore, some efforts are being made to limit the use of trialsbecause they are uneconomical from the taxpayer's standpoint.It seems clear that most civil cases in Superior Courts are disposedof for less than $1,000. This means that for the court, the taxpayer, thelitigant and the lawyer, trials often are wasteful procedures, for in mostinstances the true cost of the trial exceeds the amount recovered. Taxpayersspend from $300.00 to $800.00 per day to operate a jury courtroom ina Superior Court and, in addition, litigants pay the lawyers involved. Thisis not a very efficient, practical or sensible affair. It would not be toleratedin a well run business concern.It seemed impossible to remedy this situation as long as the courtshad no method of disposing of cases except by trying them. Pre-trial hascreated methods to modify this situation to some extent at least.The Judicial Survey Commission of Massachusetts, created in 1954,urges the settlement of cases "all along the way and especially before thecase reaches the docket or comes to trial"5 and advocates "a vigorouseffort to make pre-trial do its proper work (p.-99)."The New York Temporary Commission on the Courts created in1953 (being the twenty-sixth commission of that sort in that State), inits current report, 6 notes that 95% of the cases in the State Supreme(Superior) Court are settled and points out that "an ideal system wouldbe obtained" if "the entire block of the 95% of settleable cases weresettled at an early state" and trial calendars could consist "only of 5 %of cases that will necessarily be tried to conclusion." 7 It advocates also"a preliminary pre-trial settlement conference before they (pending cases)could be added to the regular trial calendar".'Speaker Heck of the New York Assembly said, recently, "I believethe settlement should be implemented * * * an element of compulsion beintroduced" and he urged that "lawyers be persuaded to settle these casesas early in litigation as is practical without impairing any substantial rightsof litigants."The 1954 report of the Judicial Council of California' points outthat the settlement approach to litigation is gaining strong advocatesthroughout the country. It terms the trial process as "a last resort". 105 MASSACHUSETTS JUDICIAL SURVEY COMMISSION REPORT at 95 (1955).6 1955 REPORT OF THE TEMPORARY COMMISSION ON THE COURTS TO THEGOVERNOR AND THE LEGISLATURE OF THE STATE OF NEW YORK (February 17, 1955).7 Id. at 27.8 lbid.9 FFTEENTH BIENNIAL REPORT OF THE JUDICIAL COUNCIL OF CALIFORNIA TOTHE GOVERNOR AND THE LEGISLATURE (December 31, 1954).1Old at 18.OHIO STATE LAW JOURNAL [Vol. 17Of course, every litigant is entitled to a trial of his case, but thereis a practical side to litigation which may not be ignored; and it seemsreasonably clear that the answer to the problems of our courts is not morejudges or more trials but a wise use of the opportunities which our judgeshave to help litigants to end their cases in some other way.About 1948 some courts, seeming to realize this situation, beganto send cases from their backlogs into conference with a judge with theavowed purpose of disposing of as many of them as possible without a trial.Some held general calls of all cases on their dockets, during whichone judge called the calendar and the others held conferences to whichhe referred cases for discussion-a process which eliminated deadwoodand ended many of them in the conferences.In 1949, the New York Supreme (Superior) Court in KingsCounty (Brooklyn) and New York County (Manhattan) had a backlogof some 27,000 cases in these two counties; and it began to send them,beginning with the oldest, into conference with a judge with the specificpurpose of helping the parties to end them without trial. In the next 6years, 17,000 of these cases were disposed of by agreement to dispensewith trial or by transfer to a lower court. But there still remain severalthousand untried cases in each of these counties that defy settlementby agreement, and create a problem for which most courts seem notto have developed a solution.This use of conferences to obtain settlements, and the fact thatjudges took part in them, met with bitter criticism from lawyers andjudges in New York and elsewhere. But today there is a fairly generalrealization that the courts owe citizens more than a forum presided overby a judge in which to hold legal duels; and the use of settlement methodsis spreading rapidly.During the early years of pre-trial the conferences were not held untiltrial was imminent. That meant that the parties in cases which could beended at any time, with the help of a judge, waited for relief, sometimesfor years, because the courts would not give litigants that help, althoughit was something to which they were entitled and which the courts forgenerations had possessed full power to furnish. Also by permitting theseconditions to continue the courts helped those that were using their facili-ties, not to obtain a trial, but to postpone meeting their obligations, or togain their ends by hold-up methods.In the last 2 or 3 years, we have seen what may well turn out to bethe most important change in court methods in many a day, i.e., the send-ing of new cases into conference with a judge almost immediately afterthey are at issue. It is due in large measure to our experience with pre-trial.The Circuit Court of Michigan in Detroit was one of the first to dothis. Since 1953, its new cases have been sent to conference within aPRE-TRI4L BY-PRODUCTSweek after issue is joined. This results in the ending of about one-thirdof them without trial.The Supreme Court of New York in New York County now putsits new cases through conference within a few weeks after issue withsimilar results.In October, 1954, the English Supreme Court made it mandatoryin all civil cases that plaintiffs, within seven days after the pleadings areclosed, take out a summons for a hearing with a judge in which he mustdeal with all questions preliminary to the trial, including a possible transferto a lower court, as well as all other matters adapted to secure a just, ex-peditious and economical disposal of the case. Many prompt settlementsare resulting from this procedure."-In several federal district courts, very soon after a case is at issue,a judge takes measures to become familiar with it, and to know whatuse the parties propose to make of the facilities and privileges of his court.This has been done by Judge Arthur F. Lederle in the United StatesDistrict Court in Detroit for some time.In the United States District Court in Chicago, it is a regular practice,as soon as a case is at issue, to set it down for a conference in accordancewith a standing order which provides that "at the time the issues arejoined in each civil case assigned to Judge Campbell the case will be placedon a pre-trial calendar." Frequently there is a second conference if furtherprogress can be made on shortening the issue or on settlement. Otherwise,the case is set for trial.In the Northern District of Ohio, Judge Frank L. Kloeb calls mostof his civil cases into conference very shortly after they are at issue. Priorto the conference, counsel must file informal statements of the facts andreferences to law and statutes, on which they rely. This, Judge Kloeb saysin a letter to the writer, "enables the court to discuss the case fully on anequality with counsel." Many settlements result.This movement for putting new cases through conference soon afterthey are at issue means that, for litigants in the cases disposed of in thisway, there will be no law's delay, no depositions, no interrogatories, nodiscovery proceedings, no trials, no appeals, no further time lost, nofurther expense incurred; something undreamed of a few years ago. Thesemethods make a strong appeal to the public and they result in large measurefrom our experience with pre-trial.Important as is this new procedure, its possibilities for usefulness, andindeed those of all pre-trial, are being impaired by litigants (and there aremany of them) who refuse to settle their cases, except on their own terms,until they are threatened with immediate trial. Such people use the courts,not to get a trial (from the start they have never intended to try theircase) but to get a better bargain in the settlement with which they plan1198 SOL. L. J. 598 (1954).1956]OHIO STATE LAV JOURNALto end it at the very last moment when they face actual trial. They areinterested in the courts, not as a place where they can try their cases, butas agencies which they can use to keep alive their cases and perhaps to em-barrass their opponent as long as there is hope of making a settlement t6their liking.Lawyers can hardly be criticized for using such tactics but the courtscan be criticized for allowing conditions to exist which make such tacticseffective.The inability of the courts to cope with this problem is due largelyto their lack of elasticity in adjusting their facilities to meet emergencies.This inelasticity is created in part by the almost immovable walls that sur-round them-walls which seem impossible for them to scale or remove,such as constitutional provisions and statutes specifying the methods whichthey must use.In recent years the State government in Oregon has attempted to re-move this inelasticity to some extent by statutes permitting the courts touse temporary judges and to assign judges from one court to another. Oneof.these statutes provides that when the business of the Supreme Court ofthe. state is congested or one of the judges is unable to bear his part of thework of the court, it may designate a Circuit Court judge or judges astemporary members of the Supreme Court. But in March, 1956 thisstatute was declared unconstitutional 2 .Undoubtedly, there has been and still is a lack of appreciation on thepart of the courts of the extent of their inherent powers to use methods ormeans which may facilitate their service to the public, and they hesitate touse new methods unless they are first authorized by the legislature; al-though this often is unnecessary. The almost abject surrender by thecourts to the legislatures, over the years, of the powers they rightfullypossess under the separation of powers, may have been good politics butit may be seriously doubted if it has been for the public interest.These inherent powers may have never been more important thantoday when many courts are overloaded with cases waiting disposition (notby trial, for only a very few of them will ever be tried), but by methodsother than trial which they must develop if they are to carry their load.One such method was devised by the Superior Court of Massachusettsand used for seven years (1935-1942). It was suspended during thewar and was reinstated in 1956. Under it, pending cases are referredto lawyers selected from lists prepared by the local Bar Associations,to investigate them and report to the Court. In most instances judgmentis entered on this report following full opportunity to all parties forobjection and amendment. In these seven years, the system was employedin some 49,000 cases, all of which, except about 1,400, were disposed ofwithout trial, although the right to a trial was preserved in every instance.This system has little resemblance to traditional pretrial, but it is an12 State ex rel Madden v. Crawford, 295 P 2d 174 (Ore. 1956).[Vol. 17PRE-TRIAL B Y-PROD UCTSattempt, and a successful one, to dispose of litigation prior to any trial.This system, discontinued during the war, has now been reinstated. 3The inherent powers of a court and the basis of the auditor systemwere considered by Justice Brandies in his opinion in Ex parte Peterson.1 4He said:Courts have (at least in the absence of legislation tothe contrary) inherent powers to provide themselveswith appropriate instruments required for the per-formance of their dutyY5Another significant change is found in the fairly general abandon-ment of secretiveness with respect to the facts of a case while it is beingprepared for trial and before the evidence is actually presented in court.Formerly, lawsuits were fought (to use Professor Sunderland's famousphrase) "from ambush". Now they are fought, for the most part, inthe open.This change has come about since pre-trial was first used. Undoubted-ly, this is due to some extent to our experience with pre-trial conferences.Pre-trial may have changed our concept of the function of ourjudges. Perhaps they are to be no longer regarded only as impartial mod-erators or umpires in courtroom duels; but in addition, as wise, under-standing friends of those who seek relief in courts, ready to help with theircommon sense, wisdom and their knowledge of the law and of humannature, to adjust differences quickly and with just as little expenditure intime and money as is possible. Surely this is an end greatly to be desired.A bill passed in 1956 by the New York legislature may have onlyremote relationship, if any, to pre-trial but it may reveal something of thechange of attitude of the public toward trials and the technicalities thatprecede them and are involved in them. It provides that "a civil action maybe commenced without the service of a summons or may be continued afterthe service of a summons without pleadings by the filing of a statementsigned and acknowledged by all the parties to the action." This indeedis a far cry from the days of replies, rejoinders, surrejoinders, rebutters,surrebutters and the like which were a part of the pleading of former years.Only those familiar with the traditions of the courts can realize howfundamental the changes we have seen in recent years, and are seeing to-day, may become. Probably no one knows just what has prompted manyof them. Certainly some of them can be attributed in part at least to ourexperience with pre-trial.For these, and many other reasons, it seems most appropriate that lawstudents, the lawyers of the future, into whose hands these problemsmust soon pass, should publish this symposium and become familiar withthem.13 Statement by Chief Justice Reardon of Superior Court of Massachusetts,Boston Herald, Jan. 8, 1956, p. 1.14253 U. S. 300 (1919).'5"Id at 312.1956]

Some By-Products of Pre-Trial

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Some By-Products of Pre-Trial

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