Burger Suggests Major Legal Reforms : Says Traditional Jury Trial Could Be Eliminated in Certain Cases

Chief Justice Warren E. Burger said Tuesday that the American legal system may require major reforms, including the elimination of the traditional jury trial for complex financial disputes, multiple-disaster claims and even routine auto accident cases.

“For some disputes, trials will always be the only means, but for many claims, we do not need trials by the adversary contest,” Burger said in a speech before the American Law Institute. “As we now practice it, that system is too costly, too painful, too destructive and too inefficient.”

He urged the institute, a group of judges, lawyers and law professors, to conduct a sweeping study of the “whole litigation process” to see whether there is a “better way” to resolve many of the legal battles under way in the nation’s courtrooms.

Cost of Court Cases

Increasingly, the cost of a court case is exceeding the amount won by the successful party in a lawsuit, the chief justice said. For example, he pointed to one study of a group of civil cases showing that the average jury trial cost the taxpayers $8,300--while half of the prevailing plaintiffs were awarded less than $8,000.

Burger suggested three proposals for study:

--Designating antitrust, securities fraud and other complex financial cases for trial by judges, rather than by juries of laymen who may have difficulty grasping the complicated legal and technical issues in such disputes.

--Placing multiple-disaster cases--such as plane crashes, building collapses and toxic gas leaks--in the hands of special tribunals that could resolve claims without going to court, much as special panels now settle workers compensation claims.

Arbitration as Alternative

--Using alternatives to the traditional lawsuit to resolve personal injury and property damage cases. In recent years, numerous alternative programs--using arbitration, mediation panels and so-called neighborhood courts--have been instituted across the nation to settle such disputes.

Burger’s call for a “careful, thoughtful, objective examination” of the way the courts process lawsuits was his latest in a continuing quest for change in the nation’s legal system. Among other things, the chief justice recently has advocated creation of a new national judicial panel to ease the high court’s workload and increased pay for federal judges and has suggested barring “contingency fees”--in which lawyers may receive one-third or more of an award or settlement--in cases where liability is not at issue.

The chief justice noted that the costs of the litigation explosion are having widespread impact. Operating a trial in federal district court costs the taxpayers $565 an hour, he said. Burger said that when he was in law school he was taught that the “highest obligation” of a lawyer was to keep his client out of court if possible. Now, the increase in litigation in state and federal courts has been “astounding,” he said, with filings in federal courts of appeal alone increasing 600% in 25 years.

The chief justice did not cite a cause for the flurry of lawsuits--but he did offer a wry observation about the tendency of lawyers to litigate. “We remember the story of the sole lawyer in a small town who decided he could not make a living there and decided to move,” Burger said. “Then another lawyer opened an office in the town--and both of them prospered.”