California Bar Journal
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Time to make some changes in the courts
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It is an inescapable fact that we have poured far more into our judicial systems than they were ever designed to handle. We should not be surprised that court dockets are overcrowded, dispositions are often extremely slow, expensive and sometimes wrong. Instead, we should be grateful that courts have responded as well as they have under the pressure of extraordinary changes.

Shirley M. HufstedlerWe have to think seriously about what structural changes can be made to increase decisional capacity without destroying the values served by the third branch that are vital to effective governance in a free society living under our constitutions. We also have to consider changes in their diets to permit them to absorb the loads that we have placed upon them.

Courts themselves can make some modest improvements in the system. For example, very large metropolitan courts can convert some of their courtrooms into a few more specialized courts. Although the courtrooms should be specialized, judges should not stay in them for more than a few years to avoid losing their generalist abilities.

The proliferation of large bodies of local court rules has been an unfortunate time-consuming development. The California judiciary has made important steps in that direction. The federal courts should follow suit, permitting very limited exceptions for very unusual situations.

In both the federal and state systems, it is time to subject rules of discovery to strict scrutiny. Before the discovery rules were developed, discovery was far too limited. Now the rules are too broad. About the only restriction judicially imposed is time limits. Litigators are well aware that financially powerful clients assisted by their counsel can paper a weaker adversary to death or to an unjust settlement.

The costs of unbridled discovery to the litigants and to judicial systems are far too high. Particularly in federal courts that use notice, rather than fact pleading, discovery is used to find a case, rather than to prove a case. Sophisticated lawyers have learned how to respond to discovery requests without conspicuous violation of the rules and without revealing more than a scintilla of information.

The correct balance in drafting discovery rules cannot be accomplished without serious work by skilled litigators. A working committee of the State Bar dedicated to a study of the rules of discovery would be very beneficial in helping the bench to revise the discovery rules or the judicial appointment of a commission to study the problems and to make recommendations for reform would be very helpful.

Beyond such self-help efforts, the judiciary has to rely on legislatures who hold the purse strings and whose actions are necessary to make structural changes and substantial substantive and procedural changes. One modest structural change that the California legislature could make has enough merit to warrant serious attention: The creation of a “pour-over” court to be inserted between the present courts of appeal and the Supreme Court. The decisional capacity of the California Supreme Court is not adequate to hear all the cases that merit statewide decisions. The new court could be a five-justice court, the members of which would be chosen by the Chief Justice with the consent of three of his colleagues. The new court would hear only cases referred to it by the Supreme Court itself.

The Supreme Court spends as much time deciding what it is not going to decide as it does in hearing the cases it does decide. The existence of the new court would give the Supreme Court the option of referring cases that merit statewide decisions, but not requiring its immediate attention and to clear conflicts below. The new court could be an antidote to depublication which almost always leads to uncertainties that breed more litigation.  A referred case could not come back to the Supreme Court unless the Supreme Court ordered it up on its own motion or unless a majority of the new court asked the Supreme Court to hear it.

A major reduction in the Supreme Court’s workload could be made if the Supreme Court and the legislature were willing to give the courts of appeal initial appellate review to capital cases. For excellent reasons, these cases consume a great deal of time. If the death penalty were affirmed below, review by the Supreme Court would still be automatic. Reversals could be reviewed by certiorari sought by the People.

To be sure, Court of Appeal justices would not welcome that added load, and additional law clerks to assist courts of appeal in the death cases would be needed. Nevertheless, the judicial time in the very least supply — the Supreme Court — has to be saved, even at the expense of judicial time of the courts of appeal. That idea is not new. It was recommended through then-Chief Justice Malcolm Lucas by a distinguished commission that he had appointed. It died without an obituary.

These are only a few of the suggestions that should be given thoughtful consideration to improve the administration of justice.

Remember, the courts we need to save are our own.

This column is exerpted from the Morrison Lecture, delivered at the State Bar’s Annual Meeting by Shirley M. Hufstedler, the first woman to preside as Chief Judge of the Ninth Circuit U.S. Court of Appeals and Secretary of Education under President Jimmy Carter. She is now with Morrison & Foerster’s offices in Los Angeles.