Opinion
1958
We are discussing here the processing of cases from the time they are filed until they are sent out to trial. One of the hallmarks of procedural change in the last generation is the increased emphasis on this stage of litigation. Most cases are disposed of before trial. Much of the lawyer's time in litigation is spent in utilizing procedures to obtain information. The question we are confronted with is how can procedures before trial be arranged to provide maximum settlements, to advise both parties of all available information bearing on the issues, and to narrow the issues and make the necessary arrangements for clear presentation of information to the trier, so that trials will be as few and as short as justice will allow. All this must be accomplished with a minimum expenditure of judge's and lawyer's time.
I submit that further advances in this field depend upon a recognition that not all cases should be treated in the same way at this stage of a litigation. The federal rules have wiped the slate clean of many distinctions that are without significance in any modern system. We should feel free now to create new and functionally desirable differentiations. The Report to the Judicial Conference on Procedure in Anti-trust and other Protracted Cases recognizes the need for special treatment of such cases. The bulk of judge's time is spent on less dramatic and smaller cases and even small improvement in the handling of such cases can result in large savings of judicial energy. Statistical, social science and management tools give some promise of assisting us in a process of continuing evaluation and change.
13 F.R.D. 62 (1953).
The details of procedures utilized in the stage before trial depend upon who is doing the job — judge, ad hoc lawyer-master, a sub judge or standing master, or a judge's law clerk. What is to be done depends upon who is available and how much of him can be spared to do it.
My own tentative conclusion is that a greater degree of control before trial in some cases is desirable but that the judge manpower to exercise that control cannot be found in the Southern District. Proper use of masters offers, I think, one helpful device to obtain selective control of the before-trial stage of a case.
In discussing any scheme of before-trial processing of litigation, there are some factors which, it must be recognized, are not subject to appreciable change. Pleadings are held to the most minimal standards. The teaching of the Nagler case is that they are not subject to any substantial court control. I am not addressing myself to the merits of that decision, but it and the comment of the Advisory Committee on Rules for Civil Procedure rejecting suggestions for changes in rule 8(a) indicate the pleading rule is fixed. It is not open to you to consider the desirability of a device such as that recently utilized in New Jersey — amending what was the federal pleading rule — requiring service of a bill of particulars in motor vehicle negligence cases.
Nagler v. Admiral Corp., 248 F.2d 319 (2d Cir., 1957); Clark, Two Decades of the Federal Civil Rules, 58 Col. L. Rev. 435, 450, ftn. 69 (1958).
Report of Proposed Amendments to Rules of Civil Procedure for the United States District Courts 18-19 (October 1955).
N.J.R.C.P. 4:8-1(b). The New Jersey rule was deleted in 1958 after complaints from the bar. Waltzinger, New Jersey Practice, Rule 4:8-1, author's comment (Supp. 1958). Cf. N.J.R.C.P. 4:23-3(b). See also First Preliminary Report of the Advisory-Committee on Practice and Procedure, N.Y.Leg. Doc. No. 6(b), 57, 65-68 (1957).
Also beyond your power to modify — and I believe rightly so — is the concept that there shall be opportunity to obtain full disclosure by using any or all of the deposition-discovery devices. It is not conceivable that we will take the English position rejecting deposition practice in all but the most unusual situations on the grounds — as the Evershed report put it — that it may lead to a "fishing expedition." Some control to prevent abuse is all we can expect. This difference, among others, between British and Federal practice requires us to use masters before trial somewhat differently than the English do.
Final Report of the Committee on Supreme Court Practice and Procedure 74 (1953).
Before considering some permissible changes in before-trial practice, it is well to remind ourselves that one of the fundamentals of the federal practice is the concept of control of this stage by the lawyers themselves. Even if we thought it desirable to do so, we could not abandon this notion. Use of notice provisions in deposition-discovery practice and the absence of narrow limits on what information can be obtained requires relatively little judge time, and has made it possible for the system to become the success that it is. Some judicial control is, of course, desirable — at least in some cases — lest the litigation become too expensive, trials too long, and delays in disposition by reason of settlement or trial too great. But full judicial control would have resulted in such a large outlay of judicial time as to cause a breakdown of the system.
This system of lawyer control has worked remarkably well. Approximately one-third of district court judicial time in all cases, it has been reliably estimated, is devoted to motions and pretrial hearings, as against two-thirds for trials.
1956 Annual Report of the Director of the Administrative Office of the United States Courts 181 (6% pretrial conferences, 24% motions).
In a recent two month check by the clerk's office in the Southern District it was reported that only 32% of motions were concerned with depositions, interrogatories, inspections and discovery. These figures, while not precise, do suggest that most judicial energy is being used to try cases rather than shape them for trial.
The fact is that judicial man-hours are not appreciably expandable. This is particularly true in a court such as the Southern District of New York where, so far as I have observed, the district judges push themselves hard. In some areas in New Jersey where congestion became a serious problem the court day was extended from 9:30 to 4:30. This is only a temporary expedient. If judges are to maintain a necessary ratio of chamber to bench time — and they must because of necessary time spent in writing opinions, doing research, and reviewing evidence — lengthening the court day means working days that are too long and a burden that is too great to be sustained over the long pull. Moreover, an expansion of the trial bench through appointment of new judges is not easily obtained and is expensive.
Considering then that the amount of judicial time is limited, more intervention before trial means less judicial man-hours available for the trial of cases. Any device which requires more judge time in the pretrial stages must be closely analyzed to determine whether it results in at least an equivalent saving of trial time, either by settling of cases that otherwise would not have been settled, or by shortening trials. If it does not meet the test of saving judicial time, better service to litigants because of earlier settlements or cheaper discovery is not — in a time of severe court congestion — enough to warrant use of the device. The state of the calendar in the Southern District is such that as much time as possible must be spent in the trial of cases.
II. Suggestions of New York Temporary Commission on the Courts for Use of Masters
With considerations such as those just outlined in mind, and encouraged by studies such as those by Judge Zavatt of the English practice, the New York Temporary Commission on the Courts submitted legislation authorizing the Appellate Division in each department to appoint a limited number of full time masters to be used in controlling cases before trial on an experimental basis; the First Department would have had three and the Second Department seven.
1937: S. int. 1652, pr. 1638, Hughes; A. int. 1901, pr. 1957, Kapelman. See Report of the Temporary Commission on the Courts, IV, Recommendations Respecting Calendar Congestion and Delay, N.Y.LegDoc. No. 6(c), 25-28 (1957).
The justices of the Appellate Division would have been authorized to grant the masters in their respective departments as many of the following powers as, in their discretion, were appropriate in view of local conditions: to limit issues for trial, to order consolidation of actions pending in the same court, to order a change in place of trial, to grant preferences — including those designed to segregate cases under certain jurisdictional amounts — and to appoint experts with the consent of both parties or from approved panels. They were to attempt to classify cases that could be decided by courts with limited jurisdiction, and on consent of both parties, transfer them. Masters might also be empowered, at the request of one of the parties to subpoena witnesses and documents and take testimony for use on the trial in the same manner as a deposition. On consent of the parties, the master was to be authorized to try specific issues or an entire case. Motions concerning pleadings, bills of particulars, depositions, discovery and disclosure, examinations, requests to admit and preferences might be referred to the master for determination.
We thought that the normal practice would be to have the master hold a full scale pretrial conference at a point after discovery had been completed. Power to hold as many hearings in each case as he deemed desirable could have been granted. He was to be permitted to order a pretrial hearing before it would normally be scheduled where one of the parties asserted that such a hearing might reduce the cost of depositions and other types of disclosure or might result in an early settlement. Moreover, where motions were referred to him, he was to be authorized to treat any motion as a request for an immediate pretrial hearing.
Any order of a master was to be reviewable by a Justice of the Supreme Court — by motion returnable in the regular motion parts. We expected that such appeals would be discouraged by infrequent reversals and we provided for the sanction of substantial costs for unwarranted appeals.
When it is considered that we have 10,000 motions for bills of particulars in the Supreme Court alone in New York and that the motion practice is so phrenetic that in a relatively simple case one judge complained that seven separate judges had been required to pass on motions, you will understand what a considerable release of judge time would have resulted from a master system. The judiciary showed no enthusiasm for the bill — partly, I think, because they felt that its adoption might have put off appointment of more judges — and it died.
Silverman v. Rogers Imports, Inc., 4 M.2d 672, 127 N.Y.S.2d 896 (Sup. Ct. 1954).
Still alive is the proposed rule of the New York Advisory Committee on Practice and Procedure to permit an application for close supervision of disclosure. This rule would permit use of an ad hoc rule 53 lawyer-master such as the one appointed in Ferguson v. Ford Motor Co. or Schwartz v. Broadcast Music, Inc., or a standing master or judge on application of any party or the court's own motion. As a practical matter, without standing masters the rule can be little used. Our state trial judges do not have the time for close supervision of discovery procedures.
First Preliminary Report of the Advisory Committee on Practice and Procedure, op. cit. supra note 4, 126-129.
Kaufman, Masters in the Federal Courts: Rule 53, 58 Col. L. Rev. 452, 467 (1958); Marsh, Pretrial Discovery in an Antitrust Case, 8 The Record 401 (1953).
See proposed rule 34.4(a)(b) First Preliminary Report of the Advisory Committee on Practice and Procedure, op. cit. supra note 4, 126-27.
III. What Kind of Masters.
This circuit has had excellent results with the few ad hoc lawyer-masters it has appointed to supervise discovery in a single big case. In litigations where the parties can afford the expense and can agree on a master who will serve, this system should be continued. Under our American system the fixed expenses of litigation should not be so great as to discourage use of the courts or their instrumentalities and such lawyer-masters can have a very limited use. Urging them on the bar might well lead to charges of abuses through appointment of friends. Any considerable number of them would present serious administrative difficulties.
Clerks of judges provide a reservoir of personnel that might be used in the same way as a master by a judge assigned a rule 2 case. After fixing the general lines of discovery, he might instruct the parties to take up all detailed disputes with his clerk and make it clear that he expected to back up his clerk's decisions. This would not be a desirable general practice in this district. Most of the clerks are not mature enough and do not have the necessary-personal standing. It would be undesirable to change the widespread practice in the federal courts of appointing honor law school graduates as clerks, for the system not only serves the judges well but it provides the bar with a necessary group of men trained for litigation.
Rules for U. S. D. C. for the Southern and Eastern District of N. Y., Gen. Rule 2:
". . .
"The chief judge may assign a long and complicated case to a judge for all purposes including the following: (1) to hear all motions and preliminary applications; (2) to conduct the pre-trial conference and (3) to preside at the trial of the action."
Cf. Procedures in Anti-Trust and Other Protracted Cases, op. cit. supra note 1, 72, suggesting use of a law clerk to sit in on pretrial and trial, but as the judge's assistant rather than as an officer with power to control the proceedings.
Standing masters may provide a satisfactory answer. The Temporary Commission bill required at least ten years' experience and fixed an age limit of seventy years with the hope that relatively young and vigorous men would be chosen. Appointment was to be by the Appellate Division to minimize political considerations. Salaries were fixed, at $20,000 for the City of New York. This was based on a scale of $33,000 for our Supreme Court judges. In the federal court the salary would be somewhat lower, and fixed with reference to the earnings of masters in bankruptcy and commissioners. Since the Temporary Commission proposed an experiment, we set a three-year term, but in any continuing program appointment should be during good behavior. A practical judgment of the kind of men who would be available for this office must be made. In New York City I think we could obtain robust, intelligent, knowledgeable men of a judicial temperament who would be happy to serve.
Cf. the salary for full-time referees in bankruptcy in districts such as Colorado and Kansas of $15,000. 1957 Annual Report of the Proceedings of the Judicial Conference of the United States 20. The official authorized to pre-try cases in the District of Columbia is, I am informed, to receive a salary of $17,500.
IV. What Kind of Cases
The proposed expansion of the use of rule 2 procedure to assign more protracted cases to individual judges early in the litigation for all purposes makes a form of the master system highly desirable — I would say almost necessary. A master can be used to insulate the judge from too great involvement in a case. If a judge is exposed to the details of a complicated case — or, indeed, any case — before trial, there is the danger of an intellectual and emotional commitment that may be distracting when he is attempting to devote himself to other business and that may be difficult to overcome when he is trying to be impartial in the trial of the case itself. There is some merit in permitting the parties to present their case to a mind with no prior conceptions of the merits in a way designed to make the best impact. It is difficult to do this when a judge has been subject to almost fortuitous exposure to the details of discovery raised by various disputes about proper scope of examinations. The problem of impartiality is particularly troublesome where there is no jury — the situation in the bulk of big cases. Apart from these factors, some judges just do not like to be tied down to a single case. No system should be so inflexible as to fail to acknowledge differences in judicial temperament.
Report of the Committee Appointed by the Judicial Conference of the Second Circuit to Study the Problem of the Protracted Case (Sylvester J. Ryan, Chairman; Irving R. Kaufman, Archie O. Dawson, Joseph C. Zavatt, Robert P. Anderson (mimeographed, 1958). See also Proceedings of the Seminar on Protracted Cases, 21 F.R.D. 395 (1958).
In a court such as the District Court for the Southern District of New York, where a substantial portion of the cases may be protracted, almost routine assignment to individual judges without a system of masters runs a serious risk of taking so much judge time as to cause a calendar breakdown. The court is now falling behind in the trial of cases. No pretrial device can substitute for trials of the small proportion of cases which must be tried. Failure to try them holds up not only other cases which will have to be tried, but many cases which, as a practical matter, will be settled only on the verge of trial.
While masters can be useful in other than rule 2 cases, in the present state of our knowledge I would be opposed to our adopting the British system of providing for a hearing before a master shortly after issue is joined in almost every case. Until we have some experience with their use, a class of cases should be pretried by masters early in the litigation only if (1) it takes an appreciable amount of trial judge time and that time can be probably shortened by a pretrial hearing, (2) the scope of discovery is apt to be extensive with vague limits, or if there will be many before-trial motions and (3) the chances of early settlement without court intervention are relatively low. Statistical analysis can indicate roughly which classes of cases can be so characterized. There are, of course, some cases which fall outside the category I have just outlined which ought to go to a master early for close supervision. For example, particularly inept or disagreeable attorneys may abuse discovery or motion practice and there should be a possibility of referring particular cases to a master at any point in the before-trial stage on motion of a party or a judge.
Let me briefly illustrate what I mean by classification of cases by referring to the 1956 report of the Division of Procedural Studies and Statistics of the Administrative Office on the Relative Amount of Time Spent by District Judges on Different Types of Cases. Twenty-four classes of cases are listed. Taking the judge time spent on the average case — both before and at trial — as 1, the burden varied from 23.52 times the average for antitrust suits brought by the Government to .05 for forfeiture and penalty cases. Private antitrust suits took almost ten times the average. Real property suits required almost three times the average outlay of judge time and private contract actions twice the average. Private personal injury suits took an average length of judge time. The differences are due to three variables: first, the stage at which the case is terminated; second, the amount of before-trial motion and pretrial hearing time required; and third, the length of trial where there was a trial to completion.
1956 Annual Report of the Director of the Administrative Office of the United States Courts 183.
For some preliminary statistical treatment of variation in discovery motions and possible use of discovery to harass by type of case, see Speck, Use of Discovery in United States District Courts, 60 Yale L.J. 1132, 1141, 1144, 1152, 1153 (1951); cf. Stockman, Some Statistical Observation on the Operation of Discovery and Related Provisions of the Federal Rules of Civil Procedure (mimeographed, 1942; study and underlying data sheets are in Law Library, Columbia University); Note, Tactical Use and Abuse of Depositions under the Federal Rules, 59 Yale L.J. 117 (1949).
Obviously, most of the kinds of cases at the lowest end of the scale were terminated early in the litigation by defaults or summary judgment. The two to one difference between the time required to process an average private contract and tort case to final disposition is largely due to the higher settlement ratio in tort cases, for when these cases were tried to completion the variation in trial time was not great. In jury trials it was 15.6 hours for contract cases and 12.2 hours for personal injury cases. Only 6% of Jones Act cases reached trial and these cases had an index of 0.36, while 24% of Employer's Liability cases reached trial and these cases had an index of 1.97.
Of the 5780 negotiable instrument cases brought by the United States which were terminated in the fiscal year ending June 30, 1957, 2,921 were default judgments and only 10 cases went as far as trial. 1957 Annual Report of the Director of the Administrative Office of the United States Courts 182.
If we wait some months before pretrying our negligence cases, we will find that many of them will already have been settled or can be quickly settled, thus saving the need to spend much before-trial time on them. Moreover, negligence cases arising from the operation of motor vehicles seldom present complex issues and most deposition practice is routinized. Thus it would be a mistake to have masters intervene early in such cases; their intervention might well be a nuisance to the attorneys. At least one British attorney has objected to the necessity of a summons for directions in such cases on the ground that he did not need a master to tell him what interrogatories to answer in a running down case. In many of these cases it may even be doubted that a full scale rule 16 pretrial is worth a judge's time.
I am aware of the fact that the District of Columbia plans to use a "master" to supervise the pretrial stages in negligence cases. This experiment should be watched carefully to insure that this new official does not become merely a settlor of actions. Moreover, it might be well to make a detailed analysis of time presently spent on cases to determine what time, if any, is saved. If possible, it would be desirable to run a controlled experiment with a random sample of cases given no special treatment, another sample tendered special treatment only when one of the parties asked for it, and a third group receiving the "master's" services whether or not they were wanted. Careful time and settlement records should be kept.
V. Use of Modern Management Techniques by Courts
We are discovering more about the characteristics of different classes of cases that will help us to more scientifically determine at what points and with what degree intervention by a master is desirable. My colleague, Professor Rosenberg, for example, in his closing statement study in the First Department has developed some interesting relationships showing a very high correlation between durability of a case and its size. Statistical analysis has limited value, of course, particularly in the field of litigation and calendar control where there are so many variables. If used with discretion, if it is combined with judicial intuition and if, in the use of new devices we can have controlled experiments, there is a substantial hope that we can appreciably improve our before-trial handling of litigation.
Thus, while I am fairly optimistic about the use of masters, wider extension of the use of rule 2 and their combined use, it seems wise to move fairly slowly and on an experimental basis. At this stage, rather than three masters, I would prefer to see hired two masters and a good statistician who could indicate what effect the masters were having and whether they were worth their cost. I am suggesting, in short, that we begin to recognize that controlling the processing of a complex variety of cases in a court as large as that in the Southern District is difficult. It presents administrative problems as great as those in big industry. There are no pat solutions. Given the initiative and vigor of the judges in this circuit and the will to call on some modern management techniques for acquiring information and using it, as well as new procedural devices, there is room for confidence that we will continue to see improvement.
1958 Jan. Feb. Type of Motion January February Total filed % of General Motions filed Discovery 14 29 43 2.9% Interrogatories 84 94 178 12.1% Depositions 80 71 151 10.2% Motions to Produce 53 54 107 7.2% 479 32.4% Balance of General Motions (including Motions to Dismiss) 482 518 1,000 67.6% This table may not fully reflect the extent of discovery-deposition motion practice. Motions to dismiss, for example, may result from refusal to submit information. Rule 37(b)(2)(iii).