Chief Justice Warren E. Burger warned yesterday that American society may be on its way to being "overrun by hordes of lawyers hungry as locusts and brigades of judges never before contemplated."
This is "the harsh truth" confronting us "unless we devise substitutes for . . . courtroom processes" that are possibly based on "a smug assumption that conflict can be solved only by law-trained people," Burger said.
"The consumer with $300 in controversy for car repairs, or a dispute on a defective roofing job, or a malfunctioning home appliance, prefers a resonably satisfactory resolution to the protracted legal proceedings that are characteristic of courts." Burger continued.
"I suggest most people will prefer an effective, efficien tribunal of non-lawyers, or a mix of two non-lawyers and one lawyer, to the traditional court system to resolve his modest but irritating claim," he said.
Burger addressed a National Conference on Minor Disputes Resolution sponsored by the American Bar Association at Columbia University Law School in New York City. The Supreme Court press office released the text of the speech here.
Although the chief justice previously has expressed distress about the problem of resolving minor but vexing disputes arising between private parties and between citizens and government, yesterday's speech was his most thorough analysis of the subjects.
The speech also was notable for its emphasis on themes and language readily understood by laymen. At one point, talking about how lawyers and judges and their often-futile "gargantuan-sized litigation" may sometimes be counterproductive, Burger said:
"If we are completely honest, we must at least consider whether we are not, in reality, somewhat like Pogo, the brainchild of that philosopher-humanist, Walt Kelly, who proclaimed. 'We have met the enemy, and he is us.'
"I do not advance the idea that the 'enemy' we have met is the legal profession. The 'enemy' may be our willingness to assume that the more complex the process, the more refined and deliberate the procedure, the better the quality of justice which results."
At another point, Burger recalled a statement made in 1921 by the famed Judge Learned Hand: "I must say that as a litigant I should dread a lawsuit beyond almost anything else short of sickness and death." Burger even quoted Shakespeare's observation that the first step in improving things is to "kill all the lawyers." The chief justice did dissent, calling that advice "Shakespearean slander."
Burger termed it "possible" that lawyers and judges, "aided and abetted by the inherently litigous nature of Americans," have tended to "cast all disputes onto a legal framework that only legally trained professionals can deal with in traditional legal ways."
He went on to reject "the notion ordinary people want back-robed judges, well-dressed lawyers, and fine-paneled courtrooms to solve their disputes," saying "people with problems, like people with pains, want relief and they want it as quickly and enexpensively as possible."
As for small-claims courts, Burger said that they are overloaded and cannot deal "realistically" with many problems, such as how to enforce a legal "victory." Only a few of them deal effectively, he said, with claims that cause "a sense of injustice" to fester in, say the tenant whose "landlord delays unduly in repairing a defective raidator or refrigerator," or the victim," or the victim of "a defective roofing or siding job on the home, or defective work on the family car or TV."
Burger held out no hopes for "a perfect solution," but raised some approaches already taken and urged experiments with new ones.
"The recent experience with no-fault insurance is encouraging, even though those systems need time to develop," he said. He also urged exploration of further use of relatively "simple and informal" arbitratin procedures, which already have made "incalculable contributions to commerce and trade and lobor peace."
He also said that "the success of the acrion Hot-Lines' throughout the nation confirms" that disputes can be resolved successfully without arbitration.