Summary
In Usery v. Venango Diagnostic and Training Center, Inc., 72 F.R.D. 469 (W.D.Pa. 1976), the Court noted that the rights of defendants sued under Section 16(b) by employees for back wages and under Section 16(c) by the Secretary on behalf of employees to trial by jury have been consistently recognized.
Summary of this case from Brock v. Mechanicsville Concrete, Inc.Opinion
Action was brought under Fair Labor Standards Act by Secretary of Labor against employer for permanent injunctive relief against further violations of provisions of Act regulating minimum wages and for mandatory rehiring or reinstatement of any employees found discharged in violation of the Act. The Cistrict Court, Weber, J., held that where it could not be determined whether action was primarily equitable or for monetary damages, but matter would become clear when case was called for pretrial conference and parties had filed required pretrial statements, employer's demand for jury trial on back pay issue and secretary's motion to strike would be held under advisement until pretrial conferece, with court retaining its equity jurisdiction over question of reinstatement of employees allegedly discharged in violation of the Act regardless of treatment given minimum wage issue.
Demand for jury trial and motion to strke held under advisement.
Blair A. Griffith, U.S. Atty., Pittsburgh, Pa., Marshall H. Harris, Regional Sol., U.S. Dept. of Labor, Philadelphia, Pa., for plaintiff.
Edward W. Goebel, Jr., CacDonald, Illig, Jones & Britton, Erie, Pa., for defendant.
MEMORANDUM ORDER
WEBER, District Judge.
This is an action under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., which seeks permanent injunctive relief against further violations of the provisions of the Act regulating minimum wages, and the mandatory rehiring or reinstatement of any employees found to be discharged under the Act. The prayer for injunctive relief on the minimum wae claim includes a prayer for restraint of withholding of any minimum wage compensation due to present or former employees.
The defendant has filed its answer and made a demand for jury trial which the plaintiff resists. The defendant clarifies its demand by the statement in its brief that its concedes the question of reinstatement of employees allegedly discharged in violation of § 15(a)(3) of the Act to be an equitable issue which should not be tried by a jury.
However, the defendant claims that the relief for alleged withholding of any past due minimum wages is a legal issue for which it is entitled to a trial by jury because cause the plaintiff is aware and should have been aware at the time of the filing of the within lawsuit that the defendant was then in good faith compliance with the provisions of the Act which would make the question of injunctive relief on the minimum pay issue moot.
The Act provides for two separate kinds of actions to be brought by the Secretary on behalf of employees injured by its violation. § 16(c) as amended in 1974 permits the Secretary to bring an action for back pay without the consent of any employees. The rights of defendants sued under § 16(b) of the Act by employees for back wages, or under § 16(c) by the Secretary on behalf of employees to a trial by jury have been consistently recognized, Sullivan v. Wirtz, 359 F.2d 426 [5th Cir. 1966].
On the other hand when action is generally equitable in nature, the overwhelming authority is that neither the Seventh Amendment nor any federal jurisdictional statute grants the defendant the right to trial by jury. Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 [1974]. Katchen v. Landy, 382 U.S. 323, 86 S.Ct. 467, 15 L.Ed.2d 391 [1966].
We cannot at this time determine whether the action is primarily equitable or an action for monetary damages. This matter will become clear when the case is called for pretrial conference and the parties have filed their pretrial statements required under the local rules of this court. Under our practice the pretrial statements clarify and develop the issues which remain for trial and eliminate those issues which are no longer controversy between the parties. If, as defendant alleges, there is no further need for equitable relief in the cause of action for minimum pay, then the action may be treated as one solely under § 16(c) of the Act and a jury trial be held on that issue. On the order hand if the minimum wage question remains one primarily requiring equitable relief in the nature of injunction and restitution, it will be tried by the court. Whatever treatment is given the minimum wage issue the court will still retain its equity jurisdiction over the question of reinstatement of employees allegedly discharged in violation of the Act. The court sees no difficulty in segregating the jury and non-jury issues at trial.
Therefore, the court will hold defendant's demand for jury trial on the back pay issue, and the plaintiff's motion to strike under advisement, until the time of the pretrial conference to be held in this case at which time the actual nature of the cause of action being pursued will be determined in accordance with the posture of the case which is ready for trial.
SO ORDERED this 3rd day of November, 1976. IMPROVING FEDERAL TRIAL ADVOCACY
Chairman, United States Judicial Conference Committee to Consider Standards for Admission to Practice in the Federal Courts.
How do we improve the performance of advocates in the federal courts? That a need for improvement exists is not denied, but what is the extent of this need and how best can we meet it?
These are the challenging questions to which a committee of the United States Judicial Conference is now addressing itself. In answering these questions the committee seeks the help and cooperation of the bench and bar and law school communities, and all interested persons to the end that the consuming public may be served in the United States courts in accordance with the highest standards of professional advocacy.
Responsive to a resolution adopted by the United States Judicial Conference at its September 1975 meeting, Chief Justice Warren E. Burger appointed the twenty-four member committee: Tweleve are from the judiciary, six are practicing lawyers and six are from the academic community. Three law student consultants have also been named. The names are contained in Appendix A.
Many leaders of the legal profession have called for improvement in courtroom advocacy. Chief Justice Warren E. Burger, in a lecture on the subject at Fordham University in November, 1973, pointed out that we pay more attention in this country to the licensing of electricians than we do to the professional qualifications of trial lawyers. Chief Judge David L. Bazelon of the United States Court of Appeals for the District of Columbia has observed that many defense lawyers in criminal cases are ‘ walking violations of the Sixth Amendment.' Chief Judge Irving R. Kaufman of the Second Circuit Court of Appeals, a veteran judge of the trial and appellate courts, has been a constant advocate for improvement in the training and competency of courtroom lawyers. Judge Kaufman has said: ‘ Too many lawyers come into court today with only a diploma to justify their claims to be advocates. They are untrained and unadvised in the immensely practical work of litigation.' Even those who dispute the notion that a significant number of trial lawyers' performances are inadequate, acknowledge there is room for improvement in the level of advocacy.
Burger, The Special Skills of Advocacy, 42 Fordham L.Rev. 227 (1973)
Bazelon, The Defective Assistance of Counsel, 42 U.Cin.L.Rev. 1 (1973).
Kaufman, The Court Needs a Friend in Court, 60 A.B.A.J. 175, 176 (1974).
Weinstein, Proper and Improper Interactions Between Bench and Bar: Law Student Practice, Law Student Clerkships, and Rules for Admission to the Federal Bar, 50 St.Johns L.Rev. 441, 460 (1976).
Similar concerns have stimulated suggestions to improve the level of lawyer performance in federal courts, such as the creation of minimum qualifications for admission to practice in the federal courts. Circuit Juddge Malcolm R. Wilkey of the United States Court of Appeals for the District of Columbia has urged the creation of a United States bar, admission to which would be conditioned upon passing an examination on subjects peculiar to federal practice. The National Conference of Bar Examiners, in light of the success of the multi-state bar examination, now employed in some forty-three states, has created a federal bar examination committee. The chairman states that his committee, with the assistance of law professors and the Educational Testing Service, can design and grade a bar examination which would fairly test an applicant's knowledge of federal practice subjects.
Under the present system the general pattern, with minor exceptions, is that each federal district court accepts admission to the state bar as a basis for admission to practice in federal court. See Panel and Discussion— Should the United States District Court Adopt a Minimum Qualifications Rule for Admission to the Bar ? (Judicial Conf.D.C.Cir., June 3, 1975) reprinted at 67 F.R.D. 567.
Wilkey, Proposal for a ‘ United States Bar ,’ 58 A.B.A.J. 355 (1972), A Bar Examination for Federal Courts, 61 A.B.A.J. 1091 (1975).
Princeton, New Jersey.
Address by John Eckler of Dayton, Ohio, Judicial Conference of Eighth Circuit (June 26, 1975).
On another front, the perceived need for more training in lawyering skills prompted the Ford Foundation in 1969 to finance the Committee on Legal Education for Professional Responsibility, Inc. (CLEPR). This organization, with the cooperation of leaders of the bench and bar and under the direction of William R. Pincus, has sponsored seminars on the subject and made financial grants to law schools to encourage the teaching of more clinical education subjects, including trial advocacy, in order to better preparer the practicing lawyer. The rapid growth of continuing education programs and the emerging systems of lawyer specialty certification also show a response to an underlying demand for quality lawyering in a highly complex legal world. The growing movement to effect adoption of standards for trial advocates first reached a practical stage late in 1975 when the Advisory Committee on Proposed Rules for Admission to Practice of the Second Circuit, under the chairmanship of New York attorney Robert L. Clare, Jr., filed its report. The committee had been appointed by Chief Judge Kaufman in January, 1974, to examine the quality of advocacy in the courts of the circuit and to make recommendations for improvement. The committee found a significant number of federal trial advocates showed a lack of proficiency directly attributable to lack of legal training. The committee recommended that, under the supervision of a three person admissions committee, an applicant for admission to the United States District Court would have to show, among other requirements, that he or she had completed courses, either in law school or in a continuing legal education program, in five required subjects and either had participated in the preparation of four trials, or had observed six trials. The required courses were Evidence, Civil Procedure, including Federal Practice and Procedure, Criminal Law and Procedure, Professional Responsibility, and Trial Advocacy.
Symposium on Current Trends in Legal Education and the Legal Profession, 50 St.John's L.Rev. 431 (1976); The Education and Licensing of Lawyers (Published Papers of CLEPR Conference, Key Biscayne, Florida, Nov. 18-21, 1976).
The states of Minnesota, Iowa, and Wisconsin, for example, have recently undertaken systems of mandatory continuing legal education. See Bingaman, Some Wise Words on Continuing Legal Education, 2 Learning and the Law, 22, 23 (1976).
Discussion Draft: Interim Report of the Standing Committee on Specialization of the American Bar Association (October, 1976), reported in Alternatives: Legal Services and dthe Public, Vol. 3, No. 6 (A.B.A. Special Issue, Nov. 1976).
Trial Advocacy as A Specialty, Annual Chief Justice Earl Warren Conference on Advocacy in the United States (The Roscoe Pound-American Trial Lawyers Foundation) Final Report (1976).
67 F.R.D. 161 (1975).
The merits of the report of the Second Circuit Advisory Committee, commonly called the ‘ Clare Report,’ have been the subject of considerable discussion and debate. At the outset, it is helpful to distinguish two different parts of the rule which was proposed in the Second Circuit: 1) qualifications stated in terms of successful completion of law school courses in specified subvject matters or their equivalent, and 2) qualifications stated in terms of experience gained either by participation in the preparation of or observance of proceedings in which live testimony is taken. It is the first concept of course requirements which has generated the most heat. More specifically, the requirement of a course in Trial Advocacy (as distinguished from the four other more traditional classroom offerings) has caused the most opposition. The essence of the objections was that the committee had not established an adequate factuaol basis in support of a need for the adoption of standards, that the requirement of certain courses would infringe upon the traditional role of law schools, that the remedy would not be responsible to real problems and that the adoption of standards by the courts of only one circuit would result in an undesirable ‘ Balkanization’ of requirements in derogation of the need for uniformity of standards for admission in all federal trial courts. In this context of developments on many fronts, the Chief Justice in September, 1976, appointed a twenty-four member committee of the United States Judicial Conference to consider qualifications for practice in the United States District Courts. The committee consists of twelve federal judges six law deans and professors, and six practicing lawyers. The initial meeting of the committee on September 22, 1976 showed that a wide spectrum of view points is represented. A short opening statement by each of the twenty-two members in attendance indicated that there was no collective view as to the nature of the problem, if there was one, or what should be done about it. The consensus approach was to designate a subcommittee to propose to the committee the procedures and methods by which the facts and opinions could be gathered bearing on the questions of the need for improving the quality of advocacy in the federal courts. Working with the staff of the Federal Judicial Center, and also of the Administrative Office of the United States Courts, the subcommittee proposed a combined program of research and hearings designed to move forward to solution of the charge laid before the committee. The full committee met on December 10, 1976 and approved the program in principle, subject to further comment and appraisal. The basic outline of the program is as follows.
See, Pedrick and Frank, Questioning the Clare Cure, 12 Trial Magazine 47 (1976); Address by the Honorable Marvin E. Frankel, Bar of the United States District Court for the Southern District of New York (Dec. 30, 1975); Association of American Law Schools, Report on the Clare Committee Prosal for Rules of Admission to the Federal Courts in the Second Circuit (1976); Weinstein, supra, note 5. In response, see Kaufman, A Response to Objections to the Second Circuit's Proposed District Court Admission Rules, 61 A.B.A.J. 1514 (1975); McLaughlin, In Defense of the Clare Cure, 12 Trial Magazine 62 (1976).
Some of the major issues, criticisms and rebuttals, for the sake of brevity, might be condensed under the following nutshell:
The list is set forth in Appendix A. Three law students have also been designated as advisory committee members.
Judge James Lawrence King, Chairman; Judge Charles H. Renfrew; Dean Joseph H. Julin; Professor Robert Keeton; Mr. Thomas E. Deacy, Jr.; Mr. Henry Halladay, Esq.
While it is difficult to summarize the individual views of a twenty-four member committee, it may be fair to say there were two main groupings of reservations about the proposed program. One set of views doubted the wisdom of the extensive fact research into inadequacies of counsel (see note 21, infra ), and the other set of views was aimed at improving the objectivity, reliability and effectiveness of the proposed research from a variety of perspectives.
First, the committee will proceed by a ‘ notice and comment’ procedure analogous to that provided under the federal Administrative Procedure Act. Two notices will be sent out, one to relate to the first phase of the committee's work and a later notice to request appraisal of the committee's tentative final recommendations. The first notice will call for written comment structured in relation to: defining the criteria for quality advocacy, appraisals of the current quality, causes of any perceived inadequacies, appraisal of four possible approaches to improvement and solicitation of other proposals. Regional public hearings will also be held supplementing the opportunity for written comments.
See Appendix B.
As the gathering of written commentary and conduct of oral hearings goes forward, the Federal Judicial Center simultaneously will carry out a series of research activities designed to gather informed opinion about the level of performance of advocates in the federal courts. Since the committee is not aware of any scale that can be used for grading the performances of lawyers, and since every trial or appeal has its own unique requirements, the ideal performance is necessarily different in every case. That being so, it does not seem plausible to design a research program that would allow observers to evaluate lawyer's performances on the basis of completely objective standards. Moreover, even were it possible to develop an objective rating system, the question whether a particular performance is ‘ adequate’ or ‘ inadequate’ would remain partly a question of values, requiring a decision as to where the threshold of adequacy lies. Thus it seems extraordinarily difficult that any research program could determine in some scientific sense whether the level of performance of lawyers in the federal courts is adequate. Nevertheless, the researchers believe a program can be devised to meet the following less ambitious goals:
1. To determine systematically whether, in the judgment of judges and lawyers, there is a substantial problem of inadequate performances among advocates in the federal courts.
2. To determine whether, in the judgment of judges and lawyers, there is a substantial problem of inadequate performances among certain segments of this group of advocates.
3. To gather opinions about the particular components of advocacy in which practitioners are most in need of improvement.
The answers to these questions should assist the committee in determining whether there is sufficient need for improvement to require or recommend new approaches to qualification. Moreover, if it is concluded that remedial action is appropriate, the results of this research should assist the committee in designing remedies that are responsive to perceived deficiencies.
Under a main phase of this research, a questionnaire will be sent to each federal district judge, soliciting views about the frequency of inadequate performance by lawyers in the federal courts, and also about the particular components of trial advocacy for which there is the greatest need for improvement. The questionnaire for federal district judges should give each trial judge in the system an opportunity to express an opinion about these questions, both as to the bar as a whole and as to particular classes of practitioners. Tabulation of the responses should provide the committee with information about the current level of performance of trial advocates and about the areas in which performances are weak, as seen through the eyes of the judges.
In a second phase of the research, each federal district judge will be requested to file reports on the performance of counsel in a small number of actual cases that arise within a limited time period. The information to be reported on the case reports will be very similar in nature to the information requested on the district judges' questionnaire. Tabulations based on the case reports, however, will be directly based on immediate observation and will not have the same ‘ opinion poll’ quality as the data derived from the questionnaire. Analysis of the questionnaire responses will deal in terms of the number of judges who hold certain views; analysis of case reports will deal with the numbers of lawyers' performances that receive particular ratings.
There was also strong sentiment for the view that attempts to engage in fact finding about the level of advocacy are so difficult and potentially inconclusive as to be almost futile, and, more importantly, that this is basically a negative approach. Particularly, the rating of individual lawyers in individual cases was viewed as being especially mischievious. A better approach, it was submitted, was to emphasize, through definition based on expert opinion, the minimum elements and qualifications of what it takes to be a good trial advocate, and then to focus the research effort on defining these affirmative factors and exploring how to develop federal court mechanisms which would encourage the development of these qualities in federal trial advocates. Any proposals would not have to start with the premise that the existing level of advocacy was deficient, only that there was room for improvement, and that there were certain minimum qualifications each trial advocate should have. However, the majority in the committee felt that fact-finding about the quality of advocacy was not mutually inconsistent with the alternative approach.
Other phases of the research programs presently under consideration to be undertaken by the Federal Judicial Center include a similar survey of federal appellate judges and a survey of a sampling of lawyers. In conjunction with all of this research, an advisory committee is now being appointed to consult on the research program in an attempt to insure that we obtain the most useful answers to the most useful questions, and that the research is thorough and objective.
The research advisory committee will consist of three members of the main committee, Judge A. Leon Higginbotham, Jr., Judge Morris E. Lasker, Judge James R. Miller, and six outside persons knowledgeable in the field, to be appointed by the Director of the Federal Judicial Center.
On the basis of the research conducted by the Federal Judicial Center among judges and practicing attorneys, the written comments and suggestions received, and the transcripts of regional hearings, the committee will make a tentative judgment as to the need for, and type of, standards to be considered. This will be followed by a final notice to all interested parties containing proposed recommendations and a public hearing to give all an opportunity for comments and suggestions. On this record, the committee will make its recommendations to the Judicial Conference of the United States.
We ask the cooperation of judges and lawyers who will be asked to respond to a questionnaire as a part of the vital and necessary research. We also earnestly solicit the opinions and advice of judges and lawyers, law school teachers and law students and all who have an interest and concern in improving the level of advocacy in the federal courts. [Entire Page Contains Footnote] APPENDIX A
Instructions for communicating with the Committee are contained in Appendix B.
Robert L. Clare, Jr., Esq. (483-1000) Shearmen & Sterling 53 Wall Street New York N.Y. 10005
Thomas E. Deacy, Jr., Esq. Deach & Deacy 2300 Bryant Building 1102 Grand Ave. Kansas City, MO 64106
Hon. Sherman G. Finesilver (327-4151) United States District Judge Rm. 202, United States Court House Denver, Colorado 80202
Assistant Dean E. Gordon Gee J. Reuben Clark Law School Brigham Young University Provo, Utah 84602 (374-1211, Ext. 4277)
Henry Halladay, Esq. (340-2780) Dorsey, Marquart, Windhorst, West & Halladay 2300 First National Bank Building Minneapolis, MN 55402
Hon. A. Leon Higginbotham, Jr. United States District Judge 15613 United States Court House Philadelphia, PA 19106 (597-9157)
R. William Ide, III, Esq. (522-8700) Huie, Ware, Sterne, Brown & Ide 41 Marietta Street, Suite 1200 Atlanta, Georgia 30303
Dean Joseph R. Julin Holland Law Center University of Florida Gainesville, Florida 32601
Professor Robert E. Keeton Harvard University Law School Cambridge, MA 02138
Hon. James Lawrence King (350-5897) United States District Judge P. O. Box 014942 Miami, Florida 33101
William T. Kirby, Esq. (944-2400) Hubachek, Kelly, Rauch & Kirby 3100 Prudential Plaza Chicago, Illinois 60601
Hon. Morris E. Lasker (662-0955) United States District Judge United States Court House Foley Square New York, N.Y. 10007
Dean Joseph McLaughlin (956-5645) Fordham University School of Law 140 West 62nd Street New York, N.Y. 10023
Robert W. Meserve, Esq. (482-7600) Newman, Meserve, King & Romero 125 High Street Boston, MA 02110
Hon. James R. Miller, Jr. (922-2244) United States District Judge Calvert & Fayette Streets Baltimore, Maryland 21202
Dean Dorothy W. Nelson (746-6473) University of So. California Law Center University Park Los Angeles, California 90007
Hon. Charles B. Renfrew (556-1727) United States District Judge P. O. Box 36060 San Francisco, California 94102 Dean E. Donald Shapiro (966-3500) New York Law School 57 Worth Street New York, N.Y. 10013
Hon. Adrian A. Spears (730-6565) Chief Judge United States District Court 655 E. Durango Blvd. San Antonio, Texas 78206
Hon. Robert L. Taylor (854-7277) United States District Judge P. O. Box 0268 Knoxville, Tennessee 37901
Hon. J. Clifford Wallace (895-6114) United States Circuit Judge 940 Front Street San Diego, California 92101
Hon. Malcolm R. Wilkey (426-7122) United States Circuit Judge United States Court of Appeals Washington, D. C. 20001
Hon. Hubert L. Will (387-5610) United States District Judge United States Court House 219 So. Dearborn St. Chicago, Illinois 60604
Hon. Edward J. Devitt, CHAIRMAN Chief Judge (725-7178) United States District Judge 730 United States Court House St. Paul, Minnesota 55101
REPORTER:
Professor John E. Kennedy (692-2588) School of Law Southern Methodist University Dallas, Texas 75275
STAFF:
Carl H. Imlay, Esq., General Counsel Administrative Office of the U.S. Courts Supreme Court Building Washington, D. C. 20544 (393-1640)
LAW STUDENT CONSULTANTS:
Steven Charen Law Student Division Delegate to ABA 33 Washington Sq. W. #8J New York, N.Y. 10011
Andrew J. Goodman Chairperson of ABA Law Student Div. Committee 33 Washington Sq. W. New York, N.Y. 10011
David C. Stoup President, Law Student Division of ABA 324 East 30th Street Kansas City, MO 64108 APPENDIX B
Instructions for Written Comments.
In order to regularize the written comments, it is suggested that they be structured as nearly as possible to respond to the various Parts set out below.
Part A. The Elements of Minimum and Maximum Advocacy.
What are the most important elements determining quality of representation so that performances of lawyers in the federal trial and appellate courts can be evaluated according to defined criteria?
Part B. The Current Quality of Representation.
What is the current quality of representation in federal courts? Wherever responses can be quantified into percentages of lawyers and cases, or can be broken down with respect to various types of proceedings or aspects of trial or appellate practice, the Committee invites the respondents to do so. The Committee is particularly interested in being advised of any completed or ongoing studies that will reveal data relevant to this question.
Part C. Causes of Inadequate Representation.
If inadequacies in the quality of representation are perceived, what are the respondent's opinions as to the causes?
Part D. Appraisal of Existing Tentative Proposals.
At this stage, the Committee has developed no factual basis from which it can formally conclude that there is or is not a substantial problem in the quality of representation requiring a remedy. At the same time, the Committee recognizes that there is divided opinion on this point. The Committee believes that while the factual inquiry goes forward, it is important to gather public reaction and suggestions concerning the impact of remedies proposed by those who urge improving the quality of representation.
Several models or proposals to improve representation have been suggested formally and informally and are in varying stages of implementation.
The Committee particularly invites comment on the following concepts, and is open to all suggestions, alternatives or variations.
D (1). The United States Court of Appeals for the Second Circuit has resolved that the district courts give serious consideration to a rule for admission to practice, which rule would require the successful completion of a course of study either in a law school or in a continuing education program, or the deemed equivalent, covering five specified subject matters: (a) Evidence; (b) Civil Procedure, including Federal Jurisdiction, Practice and Procedure; (c) Criminal Law and Procedure; (d) Professional Responsibility; and (e) Trial Advocacy. The proposed Rule would also require that an applicant have had certain experiences as satisfied alternatively by assistance in the preparation and attendance at certain testimonial hearings or by simple attendance at other testimonial hearings.
D (2). A number of existing standards for admission to federal practice require knowledge or passing of a bar examination covering subjects of federal practice. Some state bar examinations include such subjects. Some local federal court admission rules require affidavits of knowledge, and at least one requires a locally administered federal bar examination. Proposals have also been made for a national federal bar examination or for a federal section included within the multi-state bar examination.
D (3). A number of state bar associations, California and Texas for example, have recently initiated and are expanding systems of voluntary specialty certification. Suggestions have been made that these systems may be adaptable to specialty certifications in general federal court representation, or in specific subject matter areas of federal practice.
D (4). The states of Minnesota, Iowa, and Wisconsin have recently initiated systems of mandatory continuing legal education for members of their state bars. Suggestions have been made that these systems may be adaptable to the federal courts.
D (5). Appraisals of other existing concepts and new concepts are solicited.
Part E. Other Comments.
By structuring the written responses, the Committee is attempting to make the responses more readily comparable and does not wish to forcelose relevant perspectives and commentary not includable under the other parts.
Part F. Specific Proposals.
The Committee especially welcomes the translation of any comments and opinions into specific draft proposals for uniform rules for admission to practice in the federal trial and appellate courts.
CONCLUSION
All written comments should be addressed to Committee to Consider Standards for Admission to Practice in the Federal Courts, Administrative Office of the United States Courts, Supreme Court Building, Washington, D. C., 20544, and received as soon as is practicable. Plans exist to hold regional public hearings directed toward the first phase of the Committee work. Those organizations or persons who wish to be informed of hearing dates and settings should make a written request addressed to the Committee at the same address.
(1) Was there an adequate factual basis?
The critics began with the premise that before changing the status quo, there ought to be an adequate factual demonstration of the need for change. They claim the surveys and hearings conducted by the Second Circuit committee did not adequately demonstrate or pinpoint the deficiencies in the performance of trial advocates. The proponents assert the factual study was adequate to show a serous problem of inadequacy caused by lack of training. The committee collected interviews of over forty judges in the Second Circuit, made a sampling of other judicial opinions and held hearings. The comittee asserts that all of these showed serious deficiencies in the performance of trial advocates; the only question went to the degree and characterization of the problem.
(2) Do course requirements improperly interfere with law schools ?
The criticisms point out that the traditional division of competence has been for the law schools to teach and for the courts to dtest. It is urged that the proposed ruel would breach that tradition, and, as a practical matter, would force allocation of law school resources to underwrite more offerings in trial advocacy, and would impair the functioning of modern law schools as total centers of legal education and innovative inquiry in other important areas of teaching and research. The rejoinder has ben that the rule proposed in the Second Circuit does not interfere with the free choice of the law schools to set the curriculum or of the students to choose courses. The requirements of law school courses, most specifically Trial Advocacy, can be alternatively satisfied through continuing legal education programs or equivalent experiences.
(3) Is the remedy reasonably responsive to the perceived problem ?
The opponents assert that there is no correlation between inadequacies of trial advocates and whether they have taken certain courses in law school. Assuming a need for improvement, there are better and fairer ways than imposing the direct and indirect cost on the law schools and their current students. The proponents in part agree that, while there are many other causes of inadequate representation in individual cases, such as a lack of preparation, and these are not confined to new admittees, nevertheless there is a suffecient nexus between educational training and proficiency in advocacy to justify minimum course qualifications for new applicants.
(4) Will differing local federal rules improperly Balkanize federal system and set in motion proliferation of course requirements ?
The critics point out that adoption of a variety of rules by different federal courts will force law schools to comply with the most stringent. This approach will also be the begining of a proliferation of course requirements for state court bar admissions, and for other specialty areas of practice. The proponents agre that the preferable system is to have one uniform rule for admissions to practice in federal courts, so that that law schools, law students and the profession can relate to it on a national basis. But this objection and the hypothetical threat of proliferation in other specialty areas does not outweigh the public's need for improved trial advocacy in the federal courts. It should be noted the above nutshell restatement of argument does not exhaust those that have already been made. There have been variations on the arguments from many sectors, and additional arguments as well. For example, any new qualifications can be viewed as indirectly creating a barrier to access to legal services; however, the rebuttal argument also seems equally obvious: the accessibility should be to adequate, not inadequate, legal services.