Speedier Justice

Second Circuit shows the way

Sue or be sued has become the American way of life, as court calendars stretch out like Depression breadlines. Months, even years, can pass before a suit is heard, much less appealed or resolved. So the achievement of the U.S. Court of Appeals for the Second Circuit is rare and laudable. While the backlog of cases piled up in the ten other U.S. Appeals Courts has risen since 1974 from 3,757 to 8,243, for the fifth year in a row the Second Circuit will have disposed of all cases that were ready for a hearing.

The key to this efficiency is not less litigation or less crime, but a tight rein on dilatory lawyers through strict scheduling and the establishment of procedures to cut out unessential steps. Sometimes hearing the appeal itself is unnecessary. Under the court's civil appeals management plan, opposing lawyers are routinely brought together to explore the possibility of settling the case before the circuit court judges will even hear it. As a result, the number of cases settled or withdrawn before hearing last year in the Second was one-third higher than in the other circuits. If the case goes forward, further separation of wheat from legal chaff occurs. Purely technical motions that may obscure issues or delay hearings are quickly resolved. In simpler cases, lawyers are urged to make their points in typewritten "letter briefs" of no more than ten pages.

The prime mover behind these reforms is Irving R. Kaufman, who was appointed chief judge of the Second in 1973. Kaufman is a believer in the "British tradition of orality." Because he and his colleagues favor "eyeball situations between attorneys and judges." the Second allows oral argument in more than 90% of its cases (vs. an average of 70% in the other circuits). But the flow of advocacy may be quickly cut off if the judges find it repetitious or unessential. Judges in the Second often decide appeals directly from the bench, simply stating their reasons and dispensing with written opinions.

Kaufman and the other Second Circuit judges have had some help from lawyers themselves. The bulk of the cases in the Second, which covers Vermont and Connecticut as well as New York, involve New York City problems and are argued by the generally able and responsive members of the New York bar.

If the celerity of the Second Circuit is so far unique among U.S. appeals courts, it is not because other judges have not explored new ways of clearing their dockets. On the West Coast, the Ninth Circuit has experimented with efficiency controls. But its sheer geographic size--it runs from Arizona to Alaska to Guam--makes uniform procedure difficult to impose and spreads the circuit's 13 judges thin. The Fifth, which covers many Southern states, is the busiest of the circuits, handling almost 30% of all federal appeals. Fifth judges have taken even more draconian time-saving measures than the Second. Under its "summary calendar system," oral argument is eliminated in about half the cases.

Many judicial reformers see more judges as the answer to judicial overload. Judge Kaufman's nine-judge circuit has had help from eight semiretired senior judges. But, says Kaufman, "Nothing irritates me more than to hear that the sole 'cure' is more judges. Of course there should be more, but they should be judges who know something about the dynamics of litigation and how to streamline the process." Given the Second's enviable efficiency, few will dissent.

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