this function and have therefore found themselves at the mercy of lawyers. Generally, discovery is undertaken promptly, and cases are allowed to lay on the docket without action for months. Dilatory motions are made but seldom sustained; continuances are granted freely, and every little controversy over discovery problems is brought to the judge rather than worked out by counsel. Of the five cases I have now tried in San Francisco (two by jury) the lawyers were prepared in only two. Indeed, one of the cases required twice as much time because of the lawyers' unpreparedness. I do not like to say these things and I know that the bar does not like to hear them; but they are true. Indeed, I dare say that the cause of the backlog in most of our metropolitan courts today can be laid at the door of the profession-either on the basis of inefficient operation, insufficient training, concentration of cases in a few firms (especially in admiralty, patents, and antitrust), or lawyers' insistence that they be permitted to control the litigation.

THE UNJUST CONSEQUENCES

The over-all consequences of his condition is a great public dissatisfaction with the courts. Among some groups it has reached the point of overt distrust. Certainly, a growing disrespect for the judiciary has reached wide proportions. Specific unjust consequences include the denial of justice through inordinate delay in the disposition of cases. This causes many people not to restort to court action; others may settle matters after filing a case; and the less affluent but determined may suffer long periods of delay with its accompanying loss. In the criminal field, delay is the best defense since witnesses die or disappear and memories become hazy. Perhaps the most disastrous effect in this regard is that the deterrent effect of the prosecution becomes practically "nil" depending on the length of the delay. The Constitution has provided those charged with crime a "speedy" trial, and the public is entitled to no less.

Finally, the courts should be open to the poor as well as to the more affluent. Our failure to make them so has contributed much to present unrest. Where other branches of the government do not take the initiative to relieve discriminatory conditions, the courts must do so. But they can act only on justiciable issues when and if brought to them. When the poor and underpriveleged have no such recourse, the result is grave problems that undoubtedly contribute to public dissatisfaction and sometimes to untoward action.

SUGGESTED SOLUTIONS

Let us begin with the bar's philosophy to which we earlier alluded. The policy of the law schools has operated to reduce the size of the trial bar as well as its efficiency. The courts have necessarily depended on a small trial bar that has been burdened with an inordinately large caseload. In order to handle this volume, techniques and procedures have been adopted that have placed the control of litigation in the bar. Consequently, enormous backlogs of cases have developed in the courts. I submit that we must change this philosophy, place control of litigation in the court, and require more expeditious and efficient handling. Seminars on expedition of litigation should be organized by judges where techniques and procedures tending to expedite disposition would be developed and put into practice. We must also have a larger trial bar. For example, thirty per cent of the docket (about 3,000 admiralty cases) in the federal eastern district of Pennsylvania were found to be concentrated in five or six firms, including both plaintiff and defense. It is, therefore, very encouraging to hear that educators such as Dean Manning are advocating a modernization of the law school curriculum. As he accurately states:

Tomorrow's law school will be even more different. Multiple curricular tracks will be opened to serve the different interests of different students. A scholarly track may lead in five years or more to something like a Ph.D. in law. A vocational-professional track may be reduced to two years. Clinical experience-something like internship experience will become normal for students pointed toward the practice. Law schools will train not only lawyers, but paraprofessional personnel to work with and increase the work output of lawyers, as medical technicians give leverage to medical doctors. A much closer interaction and relation between the law school and the Bar is in the offing, with the practitioner acting both as teacher and student.

a Id. at 1126.

41-056 O-74-67

I hope that the law schools will soon abandon the present three-year curriculum and substitute a two-year basic course followed by a one-year clinical course. Students electing to specialize should spend their third year in clinical work in their specialty. Those electing to go into general practice or trial work should devote their third year to clinical advocacy on assignment to prosecution, defense and legal aid staffs, or to other trial work programs organized by the law schools, the courts, and the trial bar. A promising field in the latter area would be neighborhood law offices in the ghettos, low-income housing groups, and the like. Likewise, prison clinics such as those now organized by the Federal Judicial Center would be a rewarding field of endeavor. This curriculum would afford the students exposure to the actual workings of the court system. Hopefully, they would assist in improving procedures and changing present attitudes toward litigation. In any event, it would certainly result in a larger and more effective trial bar.

In addition, as Dean Manning indicated, the bar and the law schools must have a closer relationship. Indeed, it would be helpful if the law schools organized continuing legal education classes on advocacy for lawyers. Experienced and capable practitioners could be used as faculty with the course being devoted to the effective trial of cases. Courses that would deal with appellate advocacy should likewise be developed. From my eighteen years on the Supreme Court I would say that half of the cases presented there were not effectively handled. Courses on this subject with a faculty of appellate judges and experienced lawyers would be most helpful to the appellate courts.

Some say we must have more judges. While some jurisdictions do need more judges, experience teaches that the omnibus creation of new judgeships has not been the answer. What is needed is a more efficient judge and staff operation plus a modernization of facilities and equipment. This will require a complete reorganization of courts' administrative work. There should be a division of labor between strictly judicial functions requiring the action of a judge and administrative functions that can be handled by a non-judge. Presently we lose much judicial manpower because we have saddled the judges with so many non-judicial functions. They should be free to devote their entire time to judging.

The court staff must be efficiently organized, and the metropolitan ones (say six or more judges) should have administrators. This position must be filled by a highly skilled and court-oriented executive who has been trained in court and administrative management. He would organize and supervise the over-all administrative operation of the court, including all of its non-judicial functions. Many of our present clerks, with some special training, could perform this task. All of the clerical, custodial, security, and other non-judicial functions would be under his supervision and control. This would include all of the management chores incident to the filing, docketing, calendaring and recording of cases, and all paper work incident thereto. This should be standardized to promote efficient operation. Additional functions that the staff might handle would be continuances, stipulations, settings, pre-trial up to the point of requiring action by a judge, selection of jury, preparation of orders, judgments and other papers in cooperation with counsel, the expedition of records on appeal including transcripts, and close liaison with counsel to the end that cases are handled with efficiency and dispatch.

On the judging side, the court would handle only judicial matters requiring a judge's decision. The cases should be organized on an individual assignment calendar so that there will be individual judge responsibility from the date a case is filed until its final disposition. To prevent judge-shopping, a blind filing systemas is used in the federal court in Chicago-should be installed. There would continue to be a chief judge, but his function, aside from judging, would be overseeing his brother judges in the performance of their judicial functions so that the court would operate smoothly and efficiently as a whole. Monthly, the chief judge would be furnished statistical information by the administrator so that he and his brother judges would know the over-all position of each judge and the relative standings on backlogs and dispositions. Seminars on continuing judicial education would be organized by the chief judge unless otherwise available, and it would be his duty to see that his staff was also provided with continual legal education similar to that provided for judges and staffs in the federal system by the Federal Judicial Center.

CONTINUING LEGAL EDUCATION

As previously indicated, provision should be made for the continuing education of both the judge and his staff. In the federal system Congress has created the Federal Judicial Center (FJC) to perform this task. In addition, the FJC also does research, conducts experiments in judicial administration, and adapts scientific devices to court management.

There should be organized a National Court Center for state courts that would coordinate and supplement the present activity of the National College of State Trial Judges, the Special Courts School, the Academy of North American Judges, the Administrators Academy in Colorado, and the Appellate Seminar at New York University. This center would act as a clearing house for the advancement of judicial administration in state courts and serve as a coordinator of existing national organizations now working in the judicial administration field. These existing national organizations now working in the judicial administraton field. These existing organizations would be utilized in this effort to ensure that judges and their staffs; including the clerical, secretarial, administrative, law clerk, and security employees were well trained. In addition, the National Court Center would also carry on research.

The center would also work with the American Judicature Society in improving the state court structure, as well as the selection and tenure of judges and their removal for cause. Likewise it would assist the National Council on Crime and Delinquency in its work in corrections and like groups in that and other fields.

Furthermore, the center would act as a catalyst in the promotion of effective administration of justice in the state courts at all levels, furnishing advice, asiștance, and financing to existing organizations where appropriate.

FINANCING

This would cost money. On the federal side it is proposed that the money be appropriated by Congress to the Federal Judicial Center and that it carry out for the federal courts all of the functions enumerated.

On the state side it is suggested that the various organizations organize a joint venture somewhat along the line of the Joint Committee for the Effective Administration of Justice, which functioned in the early sixties. This venture would be called the National Court Center (or any appropriate name) and would perform the functions outlined above. It would be funded through private financing and operated under the supervision of a board of directors selected by the cooperating organizations.

It is believed that these suggestions if accomplished-would bring about a more effective administration of justice in both the federal and state courts. In any event, I solicit the views of those interested.

THE ADMINISTRATION OF JUSTICE IN THE FEDERAL DISTRICT COURT

By William A. McRae, Jr.

Ever since a young attorney from Nebraska addressed the American Bar Association's annual meeting at St. Paul in 1906, the movement for court reform has attained increasing momentum. The address, entitled "The Causes of Popular Dissatisfaction with the Administration of Justice," by Roscoe Pound1 remains a classic statement of the problems of procedure and delay in our courts. Last August, in the first "State of the Judiciary" speech ever given, Chief Justice Burger exhorted Congress and state legislatures to provide the resources to try all criminal cases within sixty days after indictment as a method of reducing the accelerating crime rate.' The problems of mounting case backlogs, shortages of court personnel, expanding precedents, lackadaisical calendar management, and dilatory tactics by the bar present dangers to our system of justice. The

1 Pound. The Causes of Popular Dissatisfaction with the Administration of Justice, 29 ABA Rep. pt. 1, at 395 (1906). Burger, The State of the Judiciary-1970, 56 A.B.A.J. 929, 932 (1970).

purpose of this article is to explore selected methods for expediting the judicial and court procedure, consistent with the sound determination of each case. Judge Sherman Christensen of the federal district court of Utah stated recently: 3

Speed is not the end purpose of our processes. It is only one of the means by which their objective can be achieved realistically. It would be wrong to so overemphasize expedition as to sacrifice the essentials which safeguard justice. Nor in the last analysis is it so important that causes are decided with a minimum of judicial bother as it is that they are decided right. The mere elimination of cases from the docket cannot be the ultimate goal.

The words of Judge Christensen underscore the dilemma faced by the federal courts, which have witnessed a dramatic increase in cases filed and pending in the last ten years. In fiscal 1970 federal district courts saw a 13 per cent increase in cases filed-the sharpest rise in the last decade. That increase followed an 8.4 per cent increase the preceding year. In all, 125,423 new civil and criminal cases were filed in 1970. That figure represents a 43.5 per cent increase over filings in 1960, and 144,000 case filings are projected for 1975. During the fiscal year 1970, only 117,254 cases were disposed of, and a record 114,117 cases remained pending at the close of the year-a 66 per cent increase over 1960. The median time interval from issue to trial for civil cases in 1970, however, dropped from 13 months in 1969 to the 12-month level of 1968.5

The district courts in the Fifth Circuit experienced a severe increase in filings during 1970 (17.0 per cent):

6

Civil cases commenced in United States District Courts in the Fifth Circuit

The increase is 106.2 per cent above 1960, and the filings represent nearly twice as many cases as in any other circuit.'

In the Middle District of Florida the increase apparently stems from a growth in the number of actionable federal rights (such as protection against racial discrimination in employment and in the schools), a growing awareness that remedies exist for old grievances (for example, an increasing tendency for state prisoners to file federal petitions), and the emergence of certain new criminal offenses or increases in the violation of old ones (for example, firearms registration and selective service cases). Developing constitutional doctrine, especially in the areas of school desegregation, freedom of speech and expression, and right to counsel for minor crimes, has been responsible for most of the extended judicial effort required in recent years. A marked increase in the necessity for threejudge courts' has also been evident, particularly when the constitutionality of a state law is challenged as being void for vagueness or violative of the first amendment. Also, three major cases have involved requests for injunctive relief from Interstate Commerce Commission rulings.10 In light of the onerous burden of coordinating three judicial schedules, which is necessary to convene three-judge courts, it may be questioned whether the supposed benefits of the three-judge

3 Address to the Judicial Conference of the Fifth Circuit, May 1969.

Annual Report of the Director of the Administrative Office of the United States Courts for the Fiscal Year Ended June 30, 1970, pt. II, at 23 (preliminary ed., Sept. 30, 1970). Id. at 30-31.

During fiscal 1970 prisoner petitions accounted for one of every six civil cases filed in all federal courts (4.185 from federal prisoners and 11.812 from state prisoners), id. at 30-31, and filings of motor vehicle torts totalled 9.363. Id. at 29. It must be remembered that petitions for writs of habeas corpus and petitions under 28 U.S.C. § 2255 (1964) (in addition to civil rights suits by prisoners) are classed as civil proceedings. In the Jacksonville Division of the Middle District of Florida, a disproportionate number of prisoner civil rights suits are filed because of the presence within its limits of the Florida State Prison at Raiford. 5 Id. at 59.

8 See generally Fleming. Court Survival in the Litigation Explosion, 54 Judicature 109 (1970) Warren. The Administration of the Courts, 51 Judicature 196 (1968).

28 U.S.C. § 2281 (1964).

10 28 U.S.C. § 2235 (1964).

procedure cannot as well be served by making available expeditious stays pending appeal in such cases. This burden is especially severe since, ironically, a three-judge court must be called together to determine whether a three-judge court is appropriate."

12

13

In order to satisfy the needs of the explosion of rights and a growing population, the law obviously must become more efficient in its process consistent with the fair administration of justice, and court personnel must likewise become more effective, more numerous, or both. One of the signal milestones toward improving the federal court system was the establishment in 1967 of The Federal Judicial Center. Chief Justice Burger termed the Center "one of the few bright spots in the past thirty years" " in updating and creating methods of case management and judicial education. As I have noted elsewhere the Center is responsible for conducting research studies of the federal courts, stimulating similar research by other public and private agencies, and providing continuing education programs for judges and personnel in the judicial branch of government. Already, the Center has undertaken studies of computer application to docket management and jury selection; provided training courses for new judges, clerks of court, probation officers, and referees in bankruptcy; developed pretrial techniques and techniques for using individual dockets; investigated post-conviction remedy programs; and published manuals useful to the judges."

ENLARGING RESOURCES FOR ADJUDICATION

Personnel

One of the most frequently suggested remedies for the law explosion is to create more judgeships, and although this may ultimately be necessary, it is less preferable than more effective use of existing judicial manpower. If fewer judges could dispose of the caseload, justice would benefit because there would be fewer unnecessary conflicts of opinion. Also, the law would seem to emanate from a more finite, and hence more visible, point; and large economies in expenditures for courtrooms, libraries, and other accoutrements of office would ensue. In order to utilize judicial time more effectively, visiting and senior judges should be (and are being) assigned where most needed; each judge must make a concerted effort to render justice without undue deliberation; 15 judges must attend educational seminars at the beginning of their work and continue to attend seminars; and, importantly, judges must be kept out of politics," despite the urgings of political candidates. In the Middle District of Florida we have been able to reduce our backlog substantially by the visits of several judges from throughout the country, the appointment of an additional judge, and the appointment of a full-time federal magistrate. Occasionally it is necessary to hold court on Saturdays, and we make a practice of holding court throughout the summer.

Of great significance to the efficient use of judicial manpower is the availability of adequate supporting personnel. Several new personnel categories have been created and suggested for this purpose.

New Federal Magistrates.-The passage of the Federal Magistrate Act" created a post that combines the duties of the United States commissioners with new duties such as acting as a special master, conducting pretrail and discovery proceedings in civil and criminal actions, and reviewing applications for post-conviction relief. This innovation will be of great benefit in conserving the judicial time of district judges.

11 Jackson v. Choate. 404 F.2d 910 (5th Cir. 1968). The three-judge panel is unnecessary to enjoin application of a state statute if the statute is clearly unconstitutional. Bailey v. Patterson. 369 U.S. 31 (1962), and a state statute can be declared unconstitutional in a habeas corpus case. where injunctive relief is not requested. e.g., Wilson v. Gooding, 431 F.2d 855 (5th Cir. 1970). Furthermore. a single judge can enjoin enforcement of an ordinance or special act as being unconstitutional if it is not of statewide applications, e.g., Vandygrift v. Home Rule Charter Comm'n, 425 F.2d 255 (5th Cir. 1970).

12 Burger, supra note 2. at 932.

13 McRae. The Federal Judicial Center, 53 Judicature 8 (1969): see Burke. Recent Milestones for Effective Justice, 45 F.R.D. 69 (1968): Clark. The Federal Judicial Center, 5 Ga. St. B.J. 301 (1969); Clark. The Federal Judicial Center, 53 Judicature 99 (1969).

14 Judicial Conference of the United States. Report of the Proceedings 3-4 (Washington, D.C.. Mar. 13-14. June 10. Oct. 31-Nov. 1, 1969).

15 See e.g.. Waybright. An Experiment in Justice Without Delay: A Tale of Three Florida Counties, 52 Judicature 334 (1969).

16 See e... Scott. Legislative Proposals for Reform of the Federal Judiciary, 50 Judicature 50 (1969) (suggesting a modified American Judicature Society selection plan for the federal judiciary).

17 Pub. L. No. 90-578, 82 Stat. 1107, 28 U.S.C. §§ 631 et seq. (Supp. V. 1969).