Metropolitan News-Enterprise

Wednesday, May 2, 2012

Page 6

IN MY OPINION (Column)

How Can the Courts’ Volume of Litigation Survive the Money Crunch?

By GERT K. HIRSCHBERG

(The writer is a retired trial lawyer, an American Board of Trial Advocates  member since 1978 and a former professor of torts at five California law schools. He counts 4,000 of his former students among California’s lawyers and judges. He was presiding referee of the Disciplinary Board, later called the State Bar Court. He is a former member of the State Bar Board of Governors—1980 to 1983—and the Judicial Council of California.)

Two months ago, this column noted that the advent of discovery has substantially altered the practice of law in California in the last half of the last century. The almost unlimited discovery which changed the landscape of California litigation has indeed promoted settlements and caused the demise of the colorful trial lawyers, a la Perry Mason, Atticus Finch, etc., but it has also brought us the million dollar verdicts. Thus, nearly unlimited discovery has substantially eliminated trial by ambush. 

The diligent plugging lawyer who performs, edits and reads all discovery has taken out the “gotcha” element which flourished on surprise. 

This streamlining effect has, however, not reduced this volume of litigation. Why? Because in the same half century, we have doubled, if not tripled the volume of litigation. We have created a can of worms in the regulation of legal rights and obligations, good and bad, which Blackstone had never dreamed of when he created his commentaries. All this has now reached critical dimensions when one considers the tremendous financial crunch which engulfs our present court system.  As our law schools have increased the lawyers by the dozens as Gilbert and Sullivan so colorfully expressed the explosion of cousins, our explosion of lawyers is, of course, more than just a few dozen lawyers.

Only a little more than half a century ago, our legal knowledge and expertise were set forth in Corpus Juris, Corpus Juris, Secundum, Ruling Case Law and then Mr. Witkin. Now all this has been replaced by the ubiquitous computers located wherever life can be found. 

So what changes in substantive law have been brought about? The five and ten cent store has been replaced by the Sears catalogue.

It is not just that new laws have been created. There have also been enforcement modifications of previously existing rights. All these have created a plethora of case law. Today, Miranda is known by every criminal defendant, television watcher and law student. Forgotten is Carmen Miranda, the Brazilian bombshell of the pre-1950 era. The legion of litigation is new, although the Fifth Amendment had long been in existence. There are a multitude of other criminal enforcement actions which have flooded the courts. Then there is now DNA and other advances in criminal detection methods. It is unlikely that a Black Dahlia would today stymie the police department and avoid detection as it did in the 1940’s. Then there is the admissibility of illegally obtained evidence. Illegally obtained evidence was always illegal, but for many years it could be used in trial. Now, of course, its admissibility or inadmissibility is a jurisprudence all of its own.

New areas of litigation have also increased the litigation process. Here too there has evolved the natural process of maturity commencing with the time when a Scotsman bought a Buick and ending when tobacco and asbestos litigation occupied the court system.

Finally, we now deal with legislation which involves how human beings must treat other human beings.  There is the California Disabled Persons Act, the Unruh Civil Rights Act, The FEHA, various employment regulations. The list goes on and on.

Yes, there have been massive and substantial changes. The question then is how can the money crunch which hit the court system of late allow it to survive?

Copyright 2012, Metropolitan News Company