Paper by The Honorable Alvin B. Rubin
The apodictic line, "One must really leave the lawyers to do their work, instead of interfering with them," did not originate in some bar association admonition to judges but in Kafka's The Trial. This existentialist, and perhaps skeptic, view reflects, however, the attitude of most advocates toward how a case should be prepared and tried. Such delicate work must be left to the lawyers without interference by the insensitive judicial hand—or at least this is the attitude of most who have not suffered the harrow of spending two to four (or possibly ten) years of intensive effort on a case that grew constantly more chasmal.
It is almost a tenet of our faith as advocates—one more sacred than our professions to the Delphic precepts of the Code of Professional Responsibility—that the judge should not be officious; he is never to intrude or manifest concern with the manner in which a case is readied for trial. He must patiently await the time when counsel's irreconcilable differences are presented to him in justiciable form, decide them without going beyond counsel's briefs, and then settle back until the next dispute. If he can find nothing better to do with his time, he should give dull speeches to seminars, particularly those of maritime lawyers.
Even in the trifling maritime legal squall, this view has little to commend it. Rule 1 of the Federal Rules of Civil Procedure states that the purpose of the rules is the "just, speedy, and inexpensive determination" of litigation. The trial judge in the federal courts is the public's representative in implementing this policy; he can achieve the objective of the rules only by taking an active role in litigation management.
When the complex case is launched, however, every problem is magnified; the determination of cases without unreasonable delay, without inordinate expense, and with at least a modicum of justice becomes almost impossible without judicial intervention. Difficulties arise not because lawyers are unskilled; indeed, sometimes the more able the counsel, the more intricate the discovery and the more lengthy the trial. This is because the role of counsel in the adversary system is to represent a client to the bitter end so long as the means are not illicit. Many counsel believe this requires them to fight for every inch; to yield on no issue, however overwhelming the evidence or the law; and to discover whatever there may be in the entire universe to explore. Without judicial control, such rampant forensic virtuosity can defeat the goals of our system of law.
After the African Star case had been pending for seven years, I assisted another judge in seeing that it was ready for trial, and as a by-product, in mediating settlement; this reinforced my conviction that there are better ways to try lawsuits than to leave them to be propelled by the winds of advocacy. As a result of what I have learned from my fellow judges and from my own experience in complex cases involving other substantive issues as well as trials in admiralty, I suggest some procedures to assist the litigants, the lawyers, and the court in attempting to resolve the complicated case. I will use as illustrations some of the procedures followed in the George Prince-Frosta collision case, about which you have heard so much during this seminar; however, let me stress that this case is chosen merely as a paradigm to illustrate basic principles that apply, in my opinion, with only slight modification in every complicated case.
First let me define a complex case. The test is simple: a complex case is one that, in the view of counsel for any party, will involve more than two or three days of discovery, or more than five days of trial, or both. The case may involve only a few parties but complicated fact issues; for example, a case before one of my colleagues involved principally the question of whether a shipyard had repaired a vessel's turbines properly. There was one plaintiff and four defendants. Yet the trial before one of the ablest trial judges on the court lasted over seven months. Or a case may become complex simply because it involves large amounts of money and, therefore, stirs counsel to inordinate efforts. One of my own longest civil trials was a two-car automobile accident in which then celebrity Jayne Mansfield was killed; twenty-one full trial days were required. Or the case may involve a host of claimants, as in the George Prince. Whatever the reason for complications, counsel or the court are likely to recognize that the case is unusual either when it is filed or shortly thereafter. Let us discuss what should be done as soon as that possibility is perceived.
PRECEPT I: The complex limitation case is only slightly different from other complex cases.
Our substantive telescope distorts our procedural views. Maritime advocates once proudly called themselves proctors. When the silver oar was displayed, they viewed their function as different from that of the landlubber lawyers who followed the common law. Today the silver oar has been smelted, and we are all now addressed by the same title; but some lawyers steadfastly cling to the belief that an admiralty case—particularly that distinctively maritime proceeding, the limitation action—has unique procedural characteristics. Lawyers engaged in antitrust litigation or in patent cases have the same view, equally insular whether sparked by devotion to one kind of law or to another.
Its nautical setting does not make the complex limitation case unique. The procedures developed in multidistrict or in antitrust, patent, or other lengthy cases are readily adaptable to blue water. If you are skeptical, then at the moment I ask you to accept this didacticism on faith, as ipse dixit. Much of this paper will, I hope, prove the premise.
PRECEPT II: The court must assume management control of the litigation.
The trial judge is not only the public's representative; he is the only person connected with trial preparation who has no interest in the exploitation of tactical advantage. It is his duty to supervise the entire case from complaint to judgment. Of course he must not become a tyrant; he must remain aware of the realities of law practice; he must welcome and act on helpful suggestions from counsel. But he must also be the master of the entire voyage, directing its course and resolving problems as they arise.
PRECEPT III: The court should assume its responsibility early.
There is a tide in the affairs of men Which, taken at the flood, leads on to fortune; Omitted, all of the voyage of their life, Is bound in shallows and in miseries.
In complicated litigation the time for action is as soon as possible after its complexity is recognized no matter how recently the case was filed. Each week thereafter events occur, forces are mobilized, positions are taken. It becomes increasingly difficult to impose a pattern on the future conduct of counsel.
The court may itself recognize the legal hurricane when its first winds blow. If the judge does not, counsel for any party should feel free, indeed obligated, to write the judge calling his attention to the fact that this may be a difficult case and suggesting that the court may wish to have a special conference to discuss the problems it presents. However it is accomplished, early identification of the case as one likely to require special attention by counsel and to make special demands on the court is crucial.
PRECEPT IV: The court should assume judicial control of all related proceedings.
It is difficult, if not impossible, to maintain an orderly schedule for preparation and trial if counsel are skirmishing on several fronts, multiple courts are competing for lawyers' attentions, and conflicting orders are being entered. Despite the admirable maneuvers every skilled lawyer can pursue if permitted to engage in forum-shopping, the interests of justice are best served if all litigation can be conducted in a single forum.
In this one respect complex limitation proceedings are unique; the Limitation of Liability Act permits the court where the proceeding is filed to stay all other actions. As we have seen throughout this seminar, the venerability of the statute has not fully resolved its interpretation. There is an inherent tension between the centralizing impetus of the Limitation Act and the "saving to suitors" clause which purports to preserve a litigant's common law right to a choice of forum and trial by jury.
There may here lurk a vestigial piratical remnant of the ancient struggle between the lords of admiralty and the common law. Putting aside my own federalist prejudices, I believe that the virtues of litigating all claims arising out of a single event warrant a firm effort to embrace all litigation in a single court, and that proper trial procedures can adequately preserve the parties' rights to jury trial and to separate jury determination of all issues not resolved in limitation. Because no state court can entertain the limitation action, this must be done in federal court.
Therefore, if suits have not been filed in another forum before the limitation proceeding is commenced, the federal limitation court may enjoin the filing of all other suits and require all claims to be asserted in the limitation proceeding, preserving the right to jury trial by the appropriate severance of issues. If, however, actions by multiple claimants whose aggregate claims exceed the available fund have begun in a state court before limitation was commenced, the limitation court may stay the suits, but it is not settled whether the state actions may continue after the limitation proceeding has been completed and limitation issues have been decided.
About the Author
The Honorable Alvin B. Rubin. Circuit Judge, United States Court of Appeals for the Fifth Circuit.
Citation
53 Tul. L. Rev. 1395 (1979)