All right, retired judges, write!

• Date: 22 September 2006
• Author: Aldisert, Ruggero J.
• Published date: 22 September 2006
• Author: Aldisert, Ruggero J.

If I would suggest a single thesis for the question before the House, it would be: Find the time to do all the things you never had time for during your active years on the bench.

Some obvious activities come to mind: Traveling with your spouse is a good idea. Get on the golf course on weekdays. Become really acquainted with your grandchildren. Pick up some how-to books, buy state-of-the-art electric power tools and become a real "Mr. Fix It." With your own hands, take up the home improvement projects you always wanted to have done, but were in no mood to pay $90.00 an hour for a carpenter to complete.

But all this is for openers.

As judges, you have been using your brains during your entire professional careers, as well as in your lives as lawyers before putting on the robe. But the brain is a muscle, and one thing is beyond cavil: You cannot allow that muscle to get flabby, and there is the tendency in retired people to do just that. To be sure, you can join a prestigious law firm as counsel or participate in mediation and arbitration if that is your inclination. These are fine choices all, but I encourage you to take a path slightly less traveled.

Technically, I have been "retired" since 1987, but as a senior judge I have opted to work part-time, filling up the void by doing the thing that I always wanted to do during my eight years as an active Pennsylvania state trial judge and nineteen years as an active United States Circuit Judge--I have found the time to write. (1)

And this is the recommendation that I make for every retired judge--trial or appellate, state or federal: Make yourselves heard on scholarly issues. (2) One of the most serious deficiencies in legal literature today is the paucity of books and articles written by judges. It is melancholy that academia has preempted a field once invigorated by the perspective of judges and practitioners. There is a reason for this sea change: the sheer increase of the caseload of the state and federal judiciary.

Look for a moment at the paper storm that has descended on the West Publishing Company. In the thirty-five years between 1929 and 1964, West published approximately 28,000 opinions every year. Yet by 1981, the volume had almost doubled to 54,104. By 1991, the number of published opinions peaked at 65,333. (3) Drawing on my own experience, when I began as a member of the Third Circuit in 1968 each judge was responsible for deciding on the merits ninety appeals a year. But now, each active judge in the Third Circuit decides 400 cases every 365 days.

The more opinions that have to be written by state and federal judges, the less time judges have to write books and articles on the law. In my mind, "After the Bench" is the time for retired judges to finally do some serious writing on the law. A vast landscape of topics stretches out before you, and these are topics that should command your attention. You have seen firsthand the warts and blemishes upon the law and its practice; now is the time to raise a mirror to the public to present what you have witnessed and think should be changed. With that said, I would argue that no problem is more pressing than the high cost of delivering legal services today. In plain speak, it simply costs too much to bring a lawsuit and, as a result, many valid claims aren't being adjudicated. My goal in this article is to spur discussion amongst my fellow "retired" judges on this issue. I defend the thesis that the primary cause for the explosion of fees and costs has been the states' wholesale adoption of the federal pleading rules, especially those dealing with unlimited discovery.

THE DISASTER OF FEDERAL NOTICE PLEADING RULES

First, let's talk about the mess in the federal district courts. We can begin with the astronomical cost of trying a case there. Let's take a case that involves $75,000.00. I select this figure because it's the minimum amount required for diversity jurisdiction. (4) Assume the following: The facts are disputed, the case must go to trial, no statutory fees are available, and the subject matter is not conducive to a contingent fee arrangement. What would it cost to obtain a competent federal court practitioner to represent you? I'm suggesting that it's going to cost you at least $75,000.00 to prosecute a claim for $75,000.00, or a like amount to defend it. (5) The main culprit is the pleading regime established by the Federal Rules of Civil Procedure. Our current system of notice-pleadings-cum-expensive-discovery requires lawyers to jump through so many hoops that it's not economically feasible for firms to work on anything but the most lucrative cases. As I will explain, I find special fault with the I've-got-a-secret-and-I-won't-tell-you-what-I-want-or-have- until-I'm-forced-to-do-it-philosophy that lies at the heart of the federal rules.

But first, how did we ever end up in such a tangle?

The early roots of our current predicament lie in England. After the Norman Conquest of 1066, strict pleading rules developed in the English common law system. Formalism reigned. The plaintiff's complaint and the defendant's response had to be exact. The pleader, moreover, had to shoehorn the facts of his case into one of the limited forms of action, such as trespass, covenant, and assumpsit. (6) If a claimant was unable to meet these rigid requirements, the judge dismissed the suit at the pleading stage without the benefit of a trial on the merits. Under such a system, justice was ill-served; judges frequently tossed out worthy claims because of minor missteps in the pleadings.

Despite serious flaws, common law pleading endured for centuries. Not until the late nineteenth century did state governments in the United States move to adopt more flexible rules. New York acted first, enacting a code-based system to govern procedure in its state courts. Dubbed the Field Code, New York's system eliminated much of the unneeded formalism of common law pleading. Under the new doctrine, the emphasis shifted to making a detailed statement of facts that, if true, merited legal relief. Code pleading muted many of the controversies associated with the common law but it also spawned new problems. Most notably, lawyers complained that it was often difficult to research all of the facts needed to write a complaint before the statute of limitations expired.

In 1906, Roscoe Pound became the main proponent of further reform; he pushed for procedural changes that would increase flexibility and reject the more confining common law and Field-like procedures that attempted to deliver substantive law in a predictable manner.(7) Pound's ideas found favor with Yale Law School Dean Charles E. Clark, who was in 1935 appointed Reporter of the Supreme Court Advisory Committee and tasked with drafting the Federal Rules of Civil Procedure. (8) He sold the committee on the philosophy he preached in his 1928 treatise, (9) sounding the theme that procedural technicality should not stand in the way of reaching the merits or applying substantive law. The committee's work revolutionized procedure; pleading under the Federal Rules only requires that a party make "a short and plain statement of the claim showing that the pleader is entitled to relief." (10) Few, if any facts, are required to file a lawsuit, and according...