Opinion
September 13, 1958
THE USE OF MASTERS IN AID OF THE COURT IN INTERLOCUTORY PROCEEDINGS
JOSEPH ZAVATT, District Judge
An Address Given at Annual Judicial Conference Second Judicial Circuit of United States Hartford, Connecticut
On May 10th of this year Chief Justice Warren delivered an address at the University of Cincinnati, in which he re-emphasized the need of improving judicial administration and recommended simplified procedures that would steady the flow of court work, pinpoint issues in controversy and thus shorten the length of trials. He admitted, however, that such changes are not easy to effect "because both bench and bar by nature are conservative institutions". Perhaps that explains the reason why we hold our Circuit Conference in the home state of the Yale bulldog.
In many respects the American bench and bar cling to traditions with a tenacity which exceeds that of the English. For example, as far back as 1875, they discarded archaic admiralty terminology such as libellant, respondent, proctor, advocate, and substituted the uniform terms plaintiff, defendant, solicitor, and counsel. Twenty-five years ago they abolished the right to trial by jury in all but seven civil causes of action and made trial by jury discretionary with the court. The popularity of trial by judge alone is now decisively established in England and has been accompanied by an immense decline in the volume of trials by jury.
The specific topic before the panel suggests one change in procedure within our judicial structure that would relieve the trial judges of our District Courts of much of the precious trial court time they must devote to resolving disputes between attorneys for litigants as to the proper limits of discovery under our liberal rules. This topic, however, highlights only one small area of the total picture.
I would like to suggest consideration of the broader aspects of the entire problem. We are talking about processing cases so that they will be ready for trial after the issues have been simplified, the parties have agreed as to every possible fact and question of law and as to documents to be offered in evidence at the trial, i. e. after every step possible has been taken before the trial to reduce the length of the trial. Apparently, we do not have the problem of delay in criminal cases because we try criminal cases with a fair degree of promptness. We do not have the problem of delay in bankruptcy proceedings because we have referees, deputy judges, if you please, who handle all the details incident to a bankruptcy proceeding. It is in the field of civil jury, civil non-jury and admiralty cases that our judicial machinery appears to have broken down, or, at least, to have slowed down to a snail's pace while the judiciary, like Marlowe's ghost, has been weighted down with the clanking chains of old systems and old methods. We have resorted to many expedients, such as long calendar calls, settlement conferences, the assignment of cases to individual judges (in many Districts throughout the country) as soon as the complaint is filed with the Clerk, and pre-trial, to the extent that it has been accepted by our District Court Judges. All of these expedients reduce the available time of the trial judge to perform the basic function which his title implies, i.e. to try cases. With the result that our trial judges, like the Red Queen in Alice Through the Looking Glass, must run as fast as they can to stay where they are, and are losing ground day by day. This state of affairs may suggest valid reasons why, after twenty years, Rule 16, 28 U.S.C.A., cannot boast of general acceptance throughout our federal judiciary, despite the dynamic personality, the dulcet tones and the captivating southwestern drawl of a Court of Appeals Judge of a certain Circuit. So many inroads have been made upon the trial judge's time that his resistance to the suggestions in Rule 16 (which is not a mandatory rule) may stem from his inability to comply while he is in the ever-lengthening shadow of mounting calendars of cases ready for trial.
Implicit in the narrow topic before us this afternoon is the thought that the court should be aided in every aspect of interlocutory procedure so that our trial judges may have more time to try cases. I cannot conceive of any trial judge being opposed to such a worthy objective. Surely every trial judge at this Conference has admonished petit jurors to cast aside prejudice, pre-conceived notions, and sympathy. The "baby judge of the Second Circuit" would be terribly disappointed if his seniors on the bench expect greater performance from jurors than they themselves can demonstrate.
We cry for more judges, rather than for improvement in the organization of our court, as though more judges are the be-all and end-all of our problems. I would like to suggest a reappraisal of our implements of judicial administration, with a curiosity that would consider at least whether we need a bit of what we do not have rather than merely more of what we do have. Should it be the function of the trial judge to process cases for trial from the date of filing or joinder of issue or notice of trial? So small a percentage of cases filed ever reaches the trial courtroom that not a few of our judges regard the "notice of trial" as nothing more than a "notice of willingness to settle". Should it be the function of trial judges to hear interlocutory motions; to supervise discovery; to take inventory of cases on hand by calling long calendars; to conduct pre-trial conferences; to abdicate as trial judges for weeks at a time in an attempt to persuade attorneys (within proper limits, of course) to effect settlements?
All of the details before trial, including supervision of discovery, could and should be handled by officers of the court other than the trial judge — with the right in the litigants to have the determination or acts of such persons reviewed by a judge. There is nothing radical about the suggestion that persons other than the trial judge handle certain details. Referees in Bankruptcy are, in effect, deputy judges, whose determinations are subject to review by the court. Over the years since the Act of 1898, their powers (subject to review) have been extended — with the approval of our judges — have been extended to the point where (since 1938) they have the power to grant or deny discharges — a power formerly reserved to the District Court Judge sitting as a bankruptcy court. Before the Bankruptcy Act was amended in 1938, 11 U.S.C.A. § 1 et seq., our judges were burdened with the duty of hearing applications for discharges. In the Eastern District of New York alone, with three Referees, the judges in motion part heard an average of 750 such applications a year. The referee system works so well in bankruptcy cases that the percentage of referees' orders reviewed by the court is negligible. In our District it is as low as 2.5% of the total number of cases referred annually to our Referees.
A more complete illustration of what I am trying to say is found in the High Court of Justice in England. I should make it crystal clear at the outset that no one on this panel advocates the adoption (lock, stock and barrel) of the English pre-trial system. Nor are we discussing the practice of referring to masters (whether they be standing, special or the English variety), any question of fact or law to hear and report or to hear and determine. We address our remarks solely to interlocutory procedure, and hope that you will find the English system worthy of further study and of adaptation to meet our needs.
The High Court is a court of nationwide general jurisdiction, comparable to our federal District Courts. There are only 42 trial judges in the three divisions, who handle not only civil cases but also sit at the trial of major crimes at Old Bailey. The number of civil cases filed annually during the past ten years range from a high of 169,000 in 1952 to a low of 118,000 in 1957. This compares with an annual total of approximately 62,000 cases in all of our District Courts throughout the country. Yet the number of cases ready for trial and pending as of January 1, 1958 in England total only 1303.
Every District Court Judge should be interested (and envious) to learn that these judges sit only nine months per year from 10:30 A.M. to 4:00 P.M. each court day (4:15 is the exception); that their annual vacations are of three months and five days duration. Our customary two-month vacation, therefore, is neither a cause of nor would it solve the problem of calendar congestion and delay. The man in charge of the High Court calendars (called the Clerk of the Lists) estimates the necessary delay from the time a case is placed on the lists until it is reached for trial at four months. Taking into account requests by solicitors and counsellors for adjournments, he calculates this period to be nine months at most.
These statistics do not tell the entire story. No statistics do — not even Will Shafroth's. We should hasten to explain, therefore, what lies behind these annual statistics of the High Court of Justice. Their court organization and procedure are designed to process cases for trial from the bottom up — not from the top down. Chief Chancery Master Wilmott characterizes our processing procedure as "working from the top down". Their court is so organized and staffed as to provide personnel whose function it is to separate the chaff from the wheat and to produce (on a silver platter, as it were) for each trial judge a daily calendar of cases actually ready for trial. It is not until that objective is attained that cases rise to the trial judge's level.
In the Queens Bench Division the ratio of masters to judges is approximately 1 to 3, i. e. 8 masters; 25 judges. For all divisions the ratio is about 3 to 5, i. e. 23 masters and registrars; 42 judges. Here again statistics do not tell the whole story because the district registrars throughout the country (there are 60 of them) exercise the powers of masters, in addition to their clerical duties, in their respective districts outside of London.
An examination of the court rules plus on-the-spot observation of calendar practice before the Chief Clerk of the Lists and of the master system in action are convincing beyond all reasonable doubt that the English have devised the machinery and the mechanics to produce all the end results contemplated by the several practices and procedures in effect in our District Courts without invading the precious time of the trial judge. They have achieved:
1. court intervention at the earliest stage of litigation;
2. court supervision of all interlocutory procedure, including discovery;
3. pre-trial at the earliest stage of litigation;
4. simplification of issues;
5. maximum agreement as to facts and proposed exhibits;
6. shortening of the prospective trial time of cases;
7. efficient and effective calendar control.
In addition, they have reduced motion practice and procedure to the irreducible minimum of paper work, time (of both the court and counsel) and expense to litigants. And to top it all, it is the opinion of both the bench and bar in England (substantiated I submit by the annual statistics) that their system of court intervention almost immediately after joinder of issue leads to settlement of cases at a relatively early date — in a rather subtle way, but with no attempt on the part of masters to effect settlements. The master system brings together before a neutral officer of the court, a few weeks after the joinder of issue, the solicitors and often the counsel for the respective parties. Early in the case they can see the weakness of their clients' contentions and there is then and there planted in their minds the seeds of a desire to settle rather than to go to trial.
Limitations of time foreclose any detailed explanation of the English master system. I have merely suggested how the system works by a brief summary of its end results. A mimeographed copy of the basic application made to masters has been distributed. If the moderator will permit, and only if you are sufficiently interested, I would like to lay the foundation for an appreciation of the Order 30 Summons for Directions. In effect, it is an omnibus application for every possible form of interlocutory relief which the plaintiff must make to the master within seven days after joinder of issue — in default of which the defendant may make the application or move before the master to dismiss. It is the product of many years of experience. It requires no supporting affidavits and typifies the genius of our English cousins for simplification of pre-trial procedure. The defendant may make a cross motion for the relief he wants by serving an equally simple notice (without affidavits) on his adversary. Order 30 is designed to provide:
See Appendix for a copy of the Order 30 Summons For Directions.
"An occasion for the consideration . . . of the preparations for the trial of the action, so that
(a) all matters which must or can be dealt with on interlocutory applications . . . may so far as possible be dealt with; and
(b) Such directions may be given as to the future course of the action as appear best adapted to serve the just, expeditious and economical disposal there of."
Subsequent applications may be made by either side. But if the applicant fails to show good cause why he did not seek the relief on the first or adjourned hearing, costs are taxed against him. This discourages multiplicity of applications for interlocutory relief.
The master considers not only the matters brought before him by the solicitors, but, under the mandate of the rule,
"all other matters which must or can be dealt with on interlocutory applications and have not already been dealt with . . ."
He may postpone consideration of any item requested until such time as he believes to be expedient. He may refer to the judge in chambers any item which he believes should be passed upon and determined by a judge. There is a right of appeal from the master's order to the judge in chambers, which must be exercised by written notice within five days after service of the master's order. The system works so well, however, that there are appeals to the judge in less than 5% of all the cases. Reversals of the master's order are rare. One may appeal from the judge in chambers to the Court of Appeal. Such appeals are indeed rare.
Everything that English masters do could be done by judges, if the High Court had a sufficient number of judges and could be assured of additional judges as they are needed. However, the Evershed Committee (which spent six years upon a comprehensive study of English practice and procedure) came to the conclusion that, though it would be ideal to have the Summons for Directions heard by a judge, "this ideal seems impossible".
We would be guilty of unforgivable wishful thinking were we to believe or assume or contend that the time will come when we will have enough trial judges in districts such as the Southern or Eastern District of New York, or in the populous and busy areas such as Boston, Philadelphia, Chicago, Los Angeles and San Francisco. History dissipates any such daydreaming. Our only alternative is a realistic approach to court delay which is critical to the point of possible loss of public confidence in our judicial system. The problem challenges the possessive instinct, the false pride of those who would resist any change in the status quo on the alleged ground that judicial prerogatives are being invaded.
I do not presume to be qualified to write the prescription or one of the prescriptions for our ills. But it seems to me that we might consider a plan comparable to that in the Bankruptcy Act which vests in the Judicial Conference the power to determine the number of referees for each district and provides a fund out of which the cost of the referee system is paid. Since the filing fee for a pauper petition in bankruptcy is $45, the Judicial Conference (with legislative approval) could fix a schedule of fees in civil cases (over the $15 filing fee) out of which a similar fund could be built up to pay for auxiliary court personnel. There is danger in reckless change; but greater danger in blind conservatism. Henry Ward Beecher said:
"Laws and institutions are constantly tending to gravitate. Like clocks, they must be occasionally cleansed, and wound up and set to true time."
This Geophysical Year of intellectual curiosity is the appropriate time and this great Second Circuit the appropriate launching pad from which to set in motion a re-appraisal not only of our discovery procedure but also of our entire interlocutory procedure.