Opinion
January 1, 1974
TECHNIQUES FOR SHORTENING TRIALS by THE HONORABLE GUS J. SOLOMON
Address delivered before the Ninth Judicial District Conference in Reno, Aug. 2, 1974.
There are many good ways to manage a calendar, control discovery and pretrial, and reduce trial time. Every good way requires the judge to be in control — he must closely supervise the cases from the time they are filed. Much of the work, particularly before trial, can be done by the lawyers themselves or by the staff of the judge working with the lawyers. But the judge must be in control, and this is true whether he is in a district that utilizes the individual calendar system, the master calendar system, or a combination of both.
I recognize that almost every judge believes that the way he handles the calendar and the techniques he uses for discovery and pretrial and the way he conducts a trial are the best. He believes that all of us would be better off if all judges followed his methods. I also recognize that a judge must use methods that fit his personality and are comfortable for him.
Some judges are slower than others. There is often a wide disparity between the output of districts in the same circuit. This disparity cannot be explained solely by the types of cases which predominate in a particular district or because of the physical factors in that district. There is often a wide disparity in the output of judges within a district, and these disparities cannot be explained by "the luck of the draw" because year after year some judges have only a small number of pending cases and other judges dispose of fewer cases and have greater backlogs.
All of the judges in Oregon use the techniques that I shall explain. The statistics for Oregon show that: Oregon has the highest number of civil filings per judge of any district in the circuit, and the 8th highest in the nation. Our weighted average is 3rd in the circuit and 16th in the nation. We are 2nd in the circuit and 18th in the nation on the number of cases tried. Oregon, I believe, has the least number of 3-year old cases of any district in the 9th circuit. I say this not to be boastful, but merely to show that there may be a correlation between these statistics and the techniques we use.
I want to share with you some of the techniques I use to cut down trial time. I learned most of them from other judges. In 1887, in a letter to the Grants Pass, Oregon, Observer, Mark Twain wrote:
A considerable part of every book is an unconscious plagiarism of some previous book. There is no sin about it. If there were, and it were of the deadly sort, it would eventually be necessary to restrict Hell to authors — and then enlarge it.
My colleague James Burns recently told me that I am not a plagiarist. He said that if you copy the work of another judge that's plagiarism, but if you copy the work of two or more judges that's research.
Every time I hear a good technique, I add it to my repertoire and try to adapt it to my method of handling a calendar or trying a case.
I learned a great deal from William Mathes, who was one of the great judges of this circuit. I also learned a great deal from many other judges, among them — Alfred Murrah, Hubert Will and Edwin Robson. I have been impressed with the excellent presentations of Judges Howard Bratton and Alvin Rubin at the Seminars for Newly Appointed District Judges. Their presentations together with those of Hubert Will, William Becker and other judges were published by West Publishing Company in cooperation with the Federal Judicial Center. They all relate to this subject and I hope you will read them.
Although you must use techniques that are comfortable for you, please don't reject an idea or a technique without trying it because you think it's not practical or because you believe that the lawyers in your district will object. Some lawyers may object. Lawyers, like other people, are reluctant to try new ideas. But if you order it, the lawyers will comply; and if they try it, I think you will find that the overwhelming majority will like it.
I have used these techniques many times in both Seattle and Los Angeles for both run-of-the-mine and complicated cases. I have also used them in New York, Boston, New Orleans, Tampa and Miami. These techniques work for me, and I believe they will work for you.
Before I describe some of my pretrial and trial techniques, I want to briefly describe the calendar-control system we use in Oregon.
A local rule provides that when an action is filed, it will automatically be placed on the call calendar for the first regular call day, which is at least 60 days after the date of filing.
All calls are heard on the third Monday of the month. This is to reduce the number of court appearances that attorneys are required to make. The calendar judge in Oregon starts the call at 9:00 A.M., and the other judges call their individual calendars at 1:00, 2:00, or 3:00 P.M.
When a case is called and counsel announce that they need additional time, either for discovery or for any other reason, the case is given another call date. The next call is not less than one month and usually not more than four months, depending on the complexity of the case.
The calls are disposed of quickly — usually in from one to three minutes a case. If a district operates on the individual calendar system, the judge should not have more than 20 to 30 civil cases on any call day, and he should be able to dispose of all of them in less than one hour.
When counsel announce that they have or will soon complete all discovery and when all pending discovery motions have been decided, the case will be set for pretrial in one, two, or three months, depending on the nature of the case and the availability of counsel.
In Oregon we use pretrial forms and rules similar to those used in most of the districts in this circuit. I am familiar with the forms used in Arizona, the Central District of California, and the Western District of Washington. The rules in Oregon are similar.
We expect counsel to get together and do the things the rules require. When the case is called on the pretrial conference calendar — and pretrials, like calls, are held on the third Monday of the month — counsel are expected to submit a form of pretrial order that is complete and approved by all counsel. If it is not complete but can be made complete by the resolution of one or two matters on which counsel cannot agree, the judge will attempt to resolve these matters immediately if the hearing will not take more than a few minutes. Otherwise, that case will be set over until the afternoon or to a time certain during the week when more time can be given to it.
When the pretrial order is presented or when it will be lodged within a week or two, the judge will set the case for trial, usually within a month or two. Nevertheless, if a case is complex or if counsel have other commitments, it may be set three or four months in advance.
Ordinarily, from the time a case is filed to the time the pretrial order is lodged, the judge will spend less than 10 minutes of his own time. Nevertheless, under this system a case is never lost. It is always on the judge's calendar and under his control and supervision.
I mention this because some judges say that pretrial orders are too time-consuming. From 85 per cent to 90 per cent of all cases are settled, so why should a judge spend time getting the case ready for trial?
The answer is that it need not be time-consuming and we cannot permit lawyers in their discretion to determine the flow of cases for the courts. Nor can we permit cases to come to trial without adequate trial preparation.
About 30 days before trial, we notify counsel to meet with the judge at a time certain from a week to 10 days before trial to discuss:
1. The claims or defenses they intend to abandon;
2. The facts they will stipulate;
3. The names of their witnesses together with summaries of their testimony;
4. The qualifications of their experts and a full statement of the expected testimony of these experts;
5. The depositions they intend to use, with all extraneous matter deleted.
You might ask why another pretrial hearing when the pretrial rules and the pretrial order require much of this information.
There is a difference between an order submitted two or three months before trial, even when the conference is presided over by a judge, and a conference with the judge within a week or 10 days before trial. At this conference, counsel know they can't get by with generalities or boiler plate. Hopefully, trial counsel have talked to the witnesses, examined the exhibits, and are seriously preparing for trial. They probably have received their settlement authority.
Counsel, to relieve themselves of the burden of furnishing this information, settle many of the cases before these conferences. Many more are settled at these conferences. We do not put any pressure on lawyers to settle, but the techniques which we use encourage settlements. We could do more to stimulate settlements, but we believe it is the responsibility of the lawyers to determine whether to settle a case. That may account for the great number of civil cases that are tried in our district.
I hold pretrial conferences in my chambers. I first ask plaintiff's counsel to name his witnesses and, unless he has already filed written summaries of the witnesses' testimony, to tell me what he expects each witness will testify to. In Oregon, most lawyers use a full range of discovery, and they usually depose every adverse witness. After plaintiff's counsel tells me what a witness will testify to, I ask defendant's counsel if the statement of the witness' testimony is accurate. He may say, "yes", or he may say, "I can't admit the truth of the witness' statement, but I have no evidence to contradict him. I will admit that if the witness were called, he would so testify." In either event, if it is a court case, we usually eliminate that witness. Then we take up the testimony of the other witnesses.
Even though a witness has been deposed by an adverse party for the purposes of discovery, all parties in court cases will frequently agree that if the witness were called, he would testify in accordance with his deposition. Of course, counsel are privileged to ask the witness additional questions. In other words, absent a stipulation, the witness will appear at the trial, but he is usually not questioned on matters covered by the deposition.
Even when depositions will be used as the basic testimony of the witness, I require that the depositions be purged. All repetitious and irrelevant questions and answers and all colloquy between counsel must be deleted. Plaintiff's counsel underlines in blue the portions he wants read, and defendant's counsel underlines in a different color the portions he wants read. If the depositions are lengthy, counsel often will also submit a summary of the witness' testimony. This summary is then submitted to opposing counsel for his approval or criticism before it is submitted to me.
This procedure is useful in court cases and can save much time, particularly if the judge reads the depositions or statements before trial. I have tried many cases in which all or most of the testimony was submitted in this way. Cases which would have taken a week or two are often completed within a day. Of course, it makes the pretrial work of the lawyers and the judge more difficult, but it takes much less court time and much less overall time. Most lawyers are happy to use this procedure.
I often require the direct testimony of an expert witness to be submitted in advance of the trial, either in question-and-answer or in narrative form. I don't use it when the expert is a member of the medical profession, but I do require that counsel submit the qualifications of the medical expert in a separate document.
If opposing counsel agrees that the witness is an expert, I will not permit counsel to go into the witness' expert qualifications unless they are of particular significance. For example, when an orthopedic surgeon whose qualifications have been conceded is called, after he states his name and address, I will tell the jury that Dr. ____ is a duly licensed and practicing physician and surgeon in the State of Oregon; that he was specially trained and is well qualified as an orthopedic surgeon; that he has been certified by the American Board of Orthopedic Surgery; and that he devotes all of his time to that branch of surgery. Then I say to the witness, "Will you explain to the jury the field of orthopedic surgery?" Counsel will then ask about the examination of the plaintiff. This often eliminates at least 10 minutes of testimony on qualifications.
In the great majority of cases the medical reports of witnesses are exchanged before trial so little time is lost in presenting the witness' testimony. After the witness completes his direct examination, there is no delay in cross-examination.
In court cases, and often in jury cases, if the expert witness is a chemist, engineer, economist, or an expert other than a medical expert, I ask that the witness' direct testimony be reduced to writing and submitted to opposing counsel at least five days before trial. These statements must contain everything the witness would testify to on direct examination if he were asked the appropriate questions.
These statements by expert witnesses are popular with attorneys. It gives counsel who presents the witness the opportunity to have the testimony of the witness presented to the court or jury in a clear, concise, and orderly manner, and it gives the opposing counsel an opportunity to adequately prepare his cross-examination.
If it is a court case, I read the statement before the trial. When the witness is sworn, I ask him whether he wants to add or change any statement, and counsel is given the opportunity to ask additional questions; they seldom do. The witness is presented for cross-examination.
In a jury trial when the expert witness is sworn, I make a brief statement on the witness' education, experience and qualifications, and I say that the parties have agreed to his expertise. Then I tell the jury that at my direction, counsel for the. party calling the witness met with the witness and his testimony was reduced to writing and a copy was given to opposing counsel in order to enable him to prepare for cross-examination. I then ask the witness when he last read the statement. Usually the witness will say that he read it that morning. I also ask the witness whether he wants to add to or delete any statement he made. Then I ask counsel if he wants to ask the witness any additional questions. The witness then reads the statement to the jury.
During the reading of the statement, the witness may refer to a mechanical device, a drawing or another exhibit, to explain his testimony. Oftentimes a witness who would have testified for three or four hours, or even longer, under traditional methods of examination, will complete his entire testimony, both direct and cross, in less than an hour. This technique has been enthusiastically approved by the attorneys.
I often use the same technique in court trials for lay witnesses. This is in lieu of the purged deposition technique which I have already described.
Many of my colleagues have told me how well these statements have worked for them. They reject the idea that it is more difficult to judge the credibility of the witness. Of course, there is nothing to prevent a judge from asking the witness questions. I often do.
At the final pretrial conference, both sides must offer all of the exhibits they propose to use at the trial, and I rule on all objections. Where the objection is based on relevancy, I may not be able to rule on the objection. When objections to other exhibits are overruled, they are admitted in evidence. This eliminates the time it usually takes at the trial for the clerk to mark and the witness to identify each exhibit. In addition, counsel may refer to the exhibits in his opening statement.
Ordinarily, after we consider the testimony of the witnesses, the depositions and exhibits at this final pretrial conference, I again take up the claims and defenses. In most instances, the issues will be further narrowed. Often the parties will agree that the resolution of a single issue will decide the case.
Frequently, at this final pretrial conference, I decide questions of law; and I resolve all procedural problems so that when the case is called on the morning of the trial, we can proceed without interruption.
I also inquire whether counsel intend to file motions for directed verdicts. If so, I ask that they submit their memoranda of authorities before the trial. This is also a great time saver.
I arrange for the date on which counsel will submit proposed instructions. Ordinarily, I require that they be submitted one day before trial. Each request must be supported by at least one pertinent citation.
At these conferences I also inform counsel of the ground rules for the trial:
(1) I tell them the exact time the sessions will commence, usually not later than 9:30 A.M. and often at 9:00. I tell them that I will be there on time and that I expect them to be there at the appointed time, ready to start the case. I think it is important to establish the tempo for the trial.
(2) I explain to counsel the manner in which I select a jury and invite them to submit voir dire questions not later than the day before trial. We use 6-man juries in civil cases, and I use a modified Arizona plan in the selection of the jury. I usually select a jury in 20 minutes or less.
(3) I find out how long counsel intend to take for their opening statements, and I often set maximum limits. If they request too long a time, I remind them that an opening statement is not a final argument — its purpose is to set out in broad outline what counsel intends to prove. If counsel persists in arguing the case in his opening statement, I may remind him that at the conclusion of the evidence he will be given an opportunity to argue the case. Opening statements in my court seldom exceed 10 or 15 minutes. I try not to be arbitrary; there are cases in which it is appropriate for counsel to take a half hour or even longer to set the stage and explain to the jury what he intends to prove.
(4) I urge counsel to ask only relevant questions, and I explain how I handle offers of proof. I often tell of an incident that happened in 1965. A newly-appointed district judge was assigned to a district at the other end of the circuit. I was also there. The visiting judge's last case was one estimated to take two weeks. More than two weeks after the commencement of this case he told me that Government counsel had informed him that less than half of the Government's witnesses had testified and that Government counsel anticipated that at least two weeks would be required to complete the Government's case. My friend was concerned because he had an important case in his own district which was scheduled to commence within a few days. He was upset with the repetitious questioning and with the long pauses between questions, many of which were not relevant to any issue in the case. He asked my advice on how to speed up the trial. I dictated and gave him a memorandum which said:
"I suggest that at the beginning of the next session, you tell the jury that the case is taking longer than you anticipated and that beginning tomorrow you will convene a half-hour earlier and adjourn a half-hour later and that you may be required to hold evening sessions because you have commitments in your home district.
"When counsel, either for the Government or the defendants, is unduly repetitious or is taking too much time between questions, you should remind him of the great amount of time that the case is taking and suggest that he speed up the interrogation. If the same question is asked several times, say: `This question has been asked and answered on at least two prior occasions. Please go to something else.'
"If he persists in asking the same questions, I would again caution him to move to another subject. I don't think it will be necessary except if he is trying to get you to commit error. Be careful, but also be firm. You have the privilege of determining the extent of cross-examination.
"When counsel asks a question which appears to be irrelevant, I would say, `Mr. ____, how is this question relevant? How would the answer prove or disprove any issue in this case?' Ordinarily, you will get one of three answers:
"First: `I don't think it is relevant.' With that answer, ask him to proceed to another subject.
"Second: `It is merely background.' With this answer, remind him that the case has lasted a long time and suggest that he get to the point.
"Third: `I will connect it up later.' Insist that he connect it up immediately. If you are concerned that he may attempt to introduce inflammatory or other objectionable matter, instruct him to proceed with his examination or crossexamination on other matters, and tell him that you will permit him to make an offer of proof, outside the presence of the jury, during the next recess. When he has concluded his interrogation of that witness, require the witness to remain either in the courtroom or in the witness room. At the next recess, recall the witness to permit counsel to make his offer of proof. In most instances, no offer of proof will be made."
I saw my friend on the following day. He told me that he had followed my suggestions and that the case had proceeded so rapidly that the Government ran out of witnesses shortly after 3 P.M. I then suggested that on the following morning he notify counsel that, except under unusual circumstances, when a party runs out of witnesses, he must close his case.
From the time I made my suggestions to the visiting judge, all of the remaining evidence adduced by both the Government and the defendants was completed in less than five days.
One of the greatest time wasters is the recess. Some judges take a 10-minute recess every hour. This often stretches into 15 minutes. Additional time is wasted when counsel asks the reporter to read the last few questions and answers in order to remind the jury or counsel what the witness testified to prior to the recess. I insist that counsel check with the reporter during the recess. I always try to complete the testimony of a witness before taking a recess.
I recess for a definite period. For example, if I recess at 10:50, I announce that I will recess until 11:00. A minute or two before that time, the crier will bring back the jury, and at 11:00 I will take the bench. I don't care whether counsel or one of the parties or a court attache is missing. I take the bench and court is opened. Then I just sit and wait until the absent party appears. I do the same when we open in the morning and after our noon recess. I take the bench precisely on time, and there is absolute silence until the missing party shows up. I don't say anything to these latecomers — I don't have to — lawyers are seldom late in my court.
The exclusion of witnesses from the courtroom offers great opportunities for delay. Usually considerable time elapses between the time that one witness completes his testimony and the next witness is brought to the courtroom. I require counsel to give the crier a list of witnesses in the order in which they want the witnesses called. This will enable the crier to have the next witness available so that when one witness leaves the witness chair, the next witness is walking into the courtroom.
Before I close I want to mention three great time wasters in jury cases that are particularly annoying. They are:
(1) The request of counsel for a conference with me or with opposing counsel just as court is about to convene. I warn counsel at the final pretrial conference not to do it. I discourage last minute conferences and insist that they be held at least one-half hour before trial time.
(2) Bench conferences — I seldom permit them. I insist that counsel proceed with another matter or another witness and take up the problem at the next recess.
(3) Arguments on objections. I try to resolve all evidentiary problems before trial. On relevancy objections, I seldom need argument. Of course, there are exceptions, but they are rare.
I have tried to share with you some of the techniques I use in getting a case ready for trial and in cutting down trial time without sacrificing our ultimate objective — to get cases decided in accordance with the facts and the law.
These techniques may not be the best, but I have found that they work for me and they work for my colleagues in the District of Oregon. I am confident that some of these techniques will work for you.
THE CHANGING NATURE OF THE FEDERAL APPEALS PROCESS IN THE 1970's. A Challenge to the Bar by MYRON H. BRIGHT, Circuit Judge, U. S. Court of Appeals for the Eighth Circuit INTRODUCTION It is something of an unusual experience for me to be addressing you today, since most of the time at the appellate level you lawyers do all the talking and I do the listening.My discussion today centers on the presentation of tax appeals and other appeals in the federal courts in light of dramatic, new procedures adopted by most of the United States Courts of Appeals to cope with their ever-mounting caseload.
By the time this American Bar Association Tax Institute ends, you will have heard a great deal about the procedural changes at the pre-trial and trial stages brought about by the Tax Court's new rules. The fact of these changes and the importance of these changes to those of you who litigate cases is obvious.
The publication of such rules is a highly visible event. Like the drafting of the proposed Federal Rules of Evidence, it is the sort of event that clearly marks a significant shift in the way you will conduct your practice in the future. It is the sort of event that produces seminars and special institutes like this one.
But, in the next few minutes, I would like to talk to you about some changes that are not so clearly visible, not so clearly marked, but which are very important for you as practitioners to know in taking an appeal. For it is obvious that a case can be lost or won at the appellate level as surely as it can be won or lost at the trial level.