CHAPTER 4 ALTERNATIVES WITHIN THE JUDICIAL SYSTEM
| Jurisdiction | United States |
(Mar 1984)
ALTERNATIVES WITHIN THE JUDICIAL SYSTEM
United States District Court
Denver, Colorado
INTRODUCTION BY LUKE DANIELSON
One of the things that I think we need to look at when we are talking about alternatives to the standard litigation route for resolving disputes is the question how these methods of resolving disputes relate to the traditional methods in the courts. Specifically, we may find that by the time it occurs to somebody to try an alternative to litigation, the case is already in the courts. We may find that people for one reason or another don't want to avail themselves of these kinds of alternatives and that one party or another decides that it is going to court despite knowledge of the availability of these methods. Or, most commonly, we find that people simply aren't aware of alternatives, and they wind up in the courthouse, in litigation simply because they are just not knowledgeable about the alternatives available. Perhaps the court system can educate people about these methods.
It is important for us to recognize that many people are going to be in court, that there are means the courts have available to encourage or facilitate resolution of disputes other than the full panoply of trial. One doesn't always have to go to the judge or jury with a case, and I think we are very pleased to have with us here today somebody who is in an excellent position to tell us about what some of these means that the courts have available are. Virtually everybody in the room knows that Jim Carrigan is a sitting district court judge, federal district court in Colorado, former member of our State Supreme Court, somebody who has had a distinguished career as a teacher of law at several different institutions, and has done a lot of other things in the profession. I think that we all ought to be aware however, that he started out as an oil and gas lawyer, one of the distinguished members of that bar in Williston, North Dakota. I think he is in an excellent position to address this audience on the subject of avenues available within the court system to encourage resolution of disputes. Thank you very much. I present Jim Carrigan.
It is a great pleasure and honor for me to be here among this distinguished group and to have a chance to share with you some ideas about alternatives to doing things the good old-fashioned way. I want to bring you all the greetings of your friendly neighborhood federal court. We are not very far away, although in trying to walk over here I thought — because of the snow — I was back in Williston, North Dakota. It seemed a little that way. I want to thank particularly, for the opportunity to be here, Gary Greer and Dave Phillips, who have worked so hard in putting this together.
Judges don't get to talk very often. We get to say "sustained" or "overruled," and that's about it. Obviously I have to make the disclaimer that I'm not allowed to give legal advice. That is a rule that was made by somebody who knows the value of a Judge's advice. Also I have to disclaim any intention to speak on behalf of any other judge, magistrate, clerk, court employee or janitor in the federal courthouse. Obviously they are all very independent minded folks and they have their own ideas, none of which are likely to agree with mine.
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I should warn you too of where I'm coming from on a topic like Alternative Dispute Resolution because, as an old trial lawyer, I have strong biases in favor of the rights established in the Constitution to have a trial, and to have a trial by jury in civil cases under the Seventh Amendment. Yet, obviously, any trial judge today who reads has got to be concerned, if not alarmed, by the recent runaway growth in litigation. I am sure Judge Phil Dufford gave you some information about that this morning. Just the raw figures alone are staggering to me. In 1980, the last year for which I could get figures, over five million civil cases were filed in this country. The rate of increase in filing is growing six times faster than the rate of increase in the population. Since 1960 in the United States District Courts, filings have more than tripled.
Cases, in my view at least, seem to be getting bigger and either I am having more trouble understanding them or they are getting more complex. For example, in my court, I'm looking at, among others, the United States versus Shell Oil Company which is a 1.9 billion dollar claim for clean-up at Rocky Mountain Arsenal. Along with that, since they are related cases, I've been assigned all the other environmental clean-up cases in Colorado. That will be enough to keep any judge going for a while. I have one case which has 555 personal injury claims in it — one case.
In the past decade, Congress has enacted nearly 100 new laws giving additional jurisdiction to the federal courts. They don't want us to have as much power as we have, but they keep giving us more. They have created at least 29 categories of priorities that we are supposed to observe in getting cases to trial. Twenty-nine types of cases are given priority. But we are not told which of the 29 has priority over any of the others in the class of 29. Nor have state legislatures been idle. As Tom Gavin likes to say: "No man's life or property are safe while the legislature is in session."
The United States District Court for Colorado is already among the top five or six in the nation in the number of cases actually tried. We really can't try many more cases by the traditional means. Every day a judge is on the bench trying a case means a day when he or she doesn't have time to handle motion practice, pre-trial conferences, and various procedures that get the other cases moving along and get them settled. Each of us has about 400 pending civil cases.
We've got to be looking at alternative dispute resolution methods from that light, balancing our concern that we not ever do anything that would jeopardize or reduce the right to trial, and jury trial, for those who really want it.
Chief Justice Warren Burger spoke on this subject in his 1983 year-end report. He said that we are the most litigious country in the world, yet we have fewer judges and more lawyers per thousand people than most of the advanced European countries. In all, the federal court case load has gone up 90% in the last ten years but the number of judges has increased only 29%. The average federal judge today is terminating 71% more cases than his or her counterpart did ten years ago. I don't know very many that can keep pace with the increase in filings even though the output today is much higher per judge. Recently I talked to a judge who had just taken senior status. He had thought how wonderful it would be to get to the age of being able to take senior status and cut down to half the normal case load. He said, "Heck, half a load now is twice as many cases as I used to have in a full load." So, it is not any real advantage.
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I'm not here to complain, but I'm trying to give you the point of view that you are likely to encounter in suggesting alternative dispute resolution methods to most federal judges. They are swamped with work, and many are very open to the suggestion that alternative dispute resolution methods ought to be used in federal court.
Incidentally, along that line you ought to know that rule 16(c) and its amendments which took effect August 1, 1983, the new scheduling conference rule, provides expressly that the topics to be covered in such a scheduling conference may include the use of extra-judicial procedures to resolve the dispute. That is the first time that there has been any express recognition of that authority in the federal rules, although many judges have used rule 16 as the basis for exercising inherent power to employ arbitration and other alternatives. The point is that if we are to address the needs of our people for speedy quality justice, we must find and use more efficient means. I want to mention one other fact that is very significant because, in my view, we should be thinking in terms of voluntary, non-binding opportunities for earlier settlement. Opportunities should be presented to parties who recognize and want the advantages of...
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