IT'S LITTLE WONDER that our clogged court system has been receiving considerable attention of late, most recently from Supreme Court Justice John Paul Stevens.
The obvious consequences of overloaded courts are intolerable case delays or assembly-line justice (where justice prevails at all), unnecessary costs and anguish for plaintiffs, defendants and witnesses, more criminals roaming the streets, and growing fear and cynicism among the citizenry.
It's past time, therefore, to take a simple step to relieve jammed courts: Appoint experienced attorneys to serve, without fee, as temporary judges.
How can this be done? Easily. Lawyers are already appointed to provide free counsel to poor defendants in criminal cases. Many law firms also volunteer to do pro bono work, donating attorneys' time for civil and criminal cases. There is no good reason why the legal profession cannot supply pro bono judges as well until criminal and civil cases are reduced to reasonable levels.
Indeed, this is already being tried in one state -- Oklahoma, at the appeals court level -- and with considerable success. The program there was begun some eight months ago by Oklahoma supreme court chief justice Pat Irwin, and the state legislature recently extended it for another year.
Under that system, temporary appeals judges are selected by the state supreme court. The chief justice then appoints these attorneys to temporary courts, each of which handles one to three cases. The American Bar Association Journal reports that 600 volunteers have served so far on 200 panels.
In the eight months, the temporary judges have disposed of 312 cases. Some 40 of these have been appealed further to the state supreme court, but only one appeal has been granted -- an indication of the quality of the decisions by the temporary judges.
Such programs certainly have to be developed with care. Pro bono judges, for example, should come from the ranks of more experienced and respected attorneys, perhaps with at least 10 years' experience in the criminal or civil area.
Provisions might be made to have them serve in other counties or jurisdictions to avoid conflicts of interest, and they should be barred from hearing any case in which they had dealings or were acquainted with the parties. These and other safeguards should present no great obstacles.
Although there are a number of reasons for today's clogged courts, the chief one is that we simply do not have enough judges. A jurisdiction such as the state of Virginia, for example, is dispensing justice with just one general district court judge for every 54,145 residents. (Court administrators agree that providing sufficient judges would also force improved efficiency in their department, another major roadblock to justice.)
At the same time, we have an abundant supply of lawyers. There are more than 450,000 attorneys in the United States -- one for every 500 Americans. In New York City alone, one of every 200 residents is a lawyer, to say nothing of the fact that Washington and its suburbs are inundated with the breed.
This mismatch makes absolutely no sense, especially when one considers the magnitude of the problems produced by the judge shortage.
In criminal cases, it is the established practice of prosecutors, sanctioned by judges, to accept plea bargaining or reduced charges and sentences as a means of clearing jammed dockets. Courts have freed persons indicted for crimes because their constitutional right to a timely trail was being violated. Witnesses are often lost or their cooperation compromised when they refuse to tolerate further inonveniences.
In many jurisdictions, civil actions take between one and two years before they are heard. In Maryland, for example, civil law cases take an average of 435 days from filing to disposition; criminal cases take an average of 155 days. In the District of Columbia, the average civil case takes 365 days from calendar assignment to trial.
Court-ordered continuances, as a resut of crowded dockets, often require all parties and witnesses to spend hours and days, on two or three occasions, sitting around the court -- only to have their cases rescheduled. Although attorneys may not concede the point, many are not upset by these delays, since they remain on the clock. Their fees continue to mount.
Designed and implemented carefully, a voluntary judgeship program not only could relieve court backlogs, but it could provide aspiring permanent judges with valuable hands-on experience and otherwise benefit the short-term judges.
In Oklahoma Marvin Emerson, the former state court administrator who is now executive director of the Oklahoma Bar Association, says, "Lawyers are generally pleased with the program." He reports that "a popular response among the pro bono judges has been: "By golly, I learned more about appellate procedure and writing briefs than I ever did."
Most important, though, such programs could make a major contribution to restoring confidence in American justice.