We once numbered among our basic rights what was called our "day in court." That phrase meant access to justice on terms that were prompt, cheap and fair. Today, the phrase must be altered to our "years in court." Access to our courts is no longer prompt or cheap and, therefore, cannot be fair.
In the past 10 years, the workload of most federal courts has doubled or even tripled. There has been no comparable increase in the number of judges or to other court resources, which means that our judicial system is forced everywhere, every day, to violate the chief judicial commandment formulated by the late, eminent Judge Learned Hand: "Thou shalt nor ration justice."
Once the citizen does get into court, he may wait for conclusion for a decade. The litigant whose bills are footed by stockholders or by the taxpayers can simply outlast the unsubsidized citizen by dragging things out from court to court. It is but a matter of time before the lone litigant is too broke, too weary to continue. And so he drops out.
Not infrequently, he drops out by dying. The anguish and frustration that builds up on the emotional roller coaster of endless, unresolved litigation is a frequent cause of illness. In a not untypical letter to us. Nicholas Barbaro of Brooklyn wrote:
"My father died of a massive heart attack. I understand that courts are over-crowded, but I firmly believe that his case was worrying him to such a degree that it affected his health, which resulted in his death."
The burden of the clogging of the court falls unequally. For the congenital criminal, it means that most of the time, under one guise or another, he will get off. For victims of crime, it means more victimization and less hope of redress. For the citizen who is caught up in a civil case, or who needs to bring one, it means the delay that has always been recognized as the denial of justice. He may wait for years to get a hearing.
The lament is the loudest from conscientious judges. The federal district court of southern Florida once led the nation in processing civil cases. But Judge J. Lawrence King now reports, with dismay, that the court has tried almost no civil cases in the past year.
Judge Robert Ainsworth, chairman of the federal judiciary's Committee on Court Administration, who sits in New Orleans on the Fifth Circuit Court, declares: "There are just too many cases. We're at half strength."
Warns Judge Gerald Haney of the Eighth Circuit Court in Duluth, Minn. The sheer paperwork alone is over-whelming."
What has caused the disintegration of our once-proud judicial system? Some of the reasons reach to the general condition of our society. In a permissive age, more and more people are without a personal moral code and will accept only those strictures forced upon them by the law.
But most of the causes of our court-room breakdown can be zeroed in on. The judges themselves are culpable. Though they have labored heroically to keep up with huge caseloads, they have failed as a group to sound the alarm as mounting problems beset their courts. Much of their caseload is made up of repeaters who are convicted but not put away. Judges have also been slow to purge their deadheads, to change antiquated methods and to take advantage of modern technology.
The major beneficiaries of the stagnation of our legal system are the lawyers who, therefore, have happily contributed to the logjam. Paid by the hour for most cases, lawyers have developed into a money-making science the techniques of postponement, of appeal, of moves to different courts, of the everlasting new motion. And too many judges, having once been lawyers themselves, permit it.
The hand of the legislator is also heavy in this mess. Congress has increasingly saddled the courts with bitter social controversies that are the real responsibility of the legislative branch. Moreover, Congress has in the last decade passed at least 40 laws that were designed to improve the lot of aggrieved citizens - minorities, consumers, environmentalists, debtors, convicts - but that have in reality caused litigation to mushroom, without creating the facilities to handle it.
There is nothing benevolent behind the failure of Congress to add a single federal district judgeship since 1970. While Republicans held the White House, the Democrats in Congress weren't willing to create new judicial plums for the President to hand out.
A number of proposals have been made to deal with this courtroom breakdown. Here are just a few:
The creation of enough judgeships and other court resources to meet the load.
A recodification of legal procedures aimed at bringing litigation to a final conclusion within a reasonable time.
The establishment of citizens' courts run by mere magistrates, where citizens could go without lawyers for quick, cost-free adjudication of modest disputes.
Putting an end to the exclusive license of lawyers to profiteer on family-type concerns by establishing procedures for the probating of wills, for the sale of residential real estate, for uncomplicated divorces and the like.
We have lost something precious - our "day in court." We can get it back if we make court reform a political issue.