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.
 We 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.
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