A sophisticated electronic device holds out the hope of cutting millions of dollars a year from the country's legal bills.
It is called a telephone.
Already corporations that litigate frequently, such as insurance companies, are leaning on their lawyers to make more use of the instrument, and more and more courts are telling attorneys to phone in their arguments. Most of those who have tried the technique say they are satisfied.
This new use of the telephone is as a replacement for the full court hearing, particularly on those held to discuss procedural matters. While it is the drama of a trial that captures the attention of both journalist and fiction writers, much of what actually happens in a courtroom occurs before the trial ever starts. Many meetings are held to set trial schedules, to decide whether filing deadlines can be extended, or to consider requests by other parties to join in a suit.
On average, one pre-trial motion is filed in every civil suit, which means that in many there are a plethora of motions, especially when complex issues or big money is involved. About three out of four of those motions are decided by a judge simply on the basis of papers filed with the court. That still leaves more than a half million motions a year that are heard in courtroom proceedings in civil cases alone. Lawyers bill many millions of dollars a year not only for representing their clients in court, but for time spent getting to the courthouse, waiting around until the case comes up, and then traveling back to the office.
Researchers for the Institute for Court Management and the American Bar Association, working under a National Science Foundation grant, have been trying to pin down just how great the savings would be in switching those in-court proceedings to telephone conferences. The organizations helped set up experimental programs in three courts in Colorado and in four New Jersey counties. They found that clients were in fact spending a lot of money on their attorneys' unproductive time.
The theory has always been "that attorneys can fruitfully spend their time at a courthouse attending to other matters--appearing in other courtrooms, conferring with other attorneys, and so forth," the researchers reported in a recent issue of Judicature, a journal of the American Judicature Society, a court reform group. But in fact, more than 80 percent of them said that at least some of the waiting time was a total waste.
Telephone conferences do not work like clockwork, either. But the same lawyers reported average waits of less than 15 minutes for the electronic hearings. And--at least as important--virtually all of them said that they used the waiting time doing something useful.
In all, the ICM-ABA team estimates that switching to telephone hearings for all but the most complicated motions would save $2.7 million a year in Colorado and New Jersey alone and that most of that savings would be passed on to clients.
Telephone hearings run much like those in the courtroom. They are scheduled for a particular time, and at that point the judge's secretary, using a conference telephone with a loudspeaker and microphone, calls each lawyer in turn. When they are on the line, the judge comes on and begins the hearing. A court clerk and court reporter sit in the judge's office, and a complete record of the conversation is taken down, just as in a courtroom. Each lawyer gets an allotted time to make his or her points.
The only big change from most hearings is that the lawyers have to remember to give their names each time they speak. It's all very undramatic, much like the kind of group calls that take place in most businesses every day.
But relying on an electronic voice does undermine some traditional lawyerly techniques. The lawyers can't look the judge in the eye nor evaluate the signals being given to their presentations by body language. That's why most practitioners strongly oppose the idea of phoning in such appearances as an oral argument before a trial court or a bid to get a case dismissed. But experience with the telephone technique is winning them over for more routine matters.
"The hearings have run smoothly and effectively, and have caused no significant inconvenience to the court," says Chief Judge Robert F. Peckham of the U.S. District Court in San Francisco, who has used telephone hearings since 1979 and now allows in-person arguments on pre-trial motions only when the issues are unusually complex or there are a great number of different parties, each with its own lawyer.
The ICM-ABA researchers found that after using telephone conferencing for motion hearings, half of the lawyers involved deemed themselves "very satisfied" and another third "somewhat satisfied." Their probings so far have picked up a straw in the wind that suggests that clients may reap even greater savings: some lawyers and judges involved in experiments with telephone hearings think they had led lawyers to file fewer frivolous and time-consuming motions.