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Editorial Opinion
Begin the Beguine:
An Alternative to the Alternative
By Thomas J. McDermott, Jr.
You can wait around and hope, but
I'll tell you, you'll never see the likes oj
this again. ' • Empanel your 0\\11 juries. Jury
the public is not prepared to pay the
Frank Sinatra, commenting on the
, dancing of Eleanor Powell and Fred
Astair in That's Entertainment
I
, court time, civil litigation is being
lied shamelessly to a group
" • of five-year-ol?s last week.
" Couldn't be avoided. Our son's,
kindergarten teacher has each fam-
ily explain to the class what the par-
_ents do for a living. Iwanted to con-
veyto these young minds their won-
derful hentage in the majesty of 500
years of Common Law."Trial by Jury"
was just right. "Trial by Alternative
Dispute Resolution" didn't quite
make it. -
So I described the careful selec-
tion of12 "good persons, tried and
true," the opening oratory, the sweat-
ing witness under a relentless cross;
the dramatic summation, the judge's
charge, the great responsibility as-
sumed during rigorous deliberation.
And all 'the time I knew, "you'll
never see the likes of this again."
We've developed the greatest sys-
tern of reaching truth and justice in
history and we are in the process of
dismantling it. This is terrible, but
inevitable.
At dinner one night with then Chief
Judge of the Central District Manuel
Real and former Chief Judge of the
Ninth Circuit James Brov•.'l1ing- you
get some outstanding perks (for a
very short time) in this job - I was
bemoaning the decline, of the civil
justice system and asked: "What's
wrong?" Instantly Judge Real re-
sponded, "Too many people."
I believe that. A social and eco-
nomic system' built to handle one
level of population cannot necessar-
ily handle a higher level. "Too many
people" is not going to change, and
price for the continued expansion of
the present system.
As criminal and other social prob-
lems absorb more and more of our
pushed out into the street. Arbitra-
tlonand private judging have been
Around a long time. but they never
amountedto much. Now it appears
almost certain that ,they 'eventually
Will handle the civil litigation of the
future.
Trial, lawyers should stop fighting
this and take charge. The two big-
gest problems with ADR are the lack
of accountability of private judges
and the loss of jury trial. Consider
the following.
• Never stipulate to private judg-
ing without also providing for
the rules of evidence, the right
to a reporter, and the right to
appeal through the appropriate
court system. Get a court order
to tills effect if necessary.
• Ditto arbitration.
• All arbitration and private judg-
ing should be made appealable
by statute. This should not in-
crease the burden on the sys-
tem since these are the cases
that should have been in the
system throughout. Just pro-
mote some trial judges to ap-
pellate courts.
• The Litigation Section is cur-
rently seeking legislation
(through the Conference of Del-
egates) to require all arbitrators
and private judges to provide a
list of previous cases they have
handled, including parties and
lawyers, to all litigants consid-
ering using them.
evaluation firms do this all the
time and the cost is less than
you think.
• Insure that those who cannot
afford private judging remain in
the public system with all cur-
rent safeguards.
• And all the other ideas you have
already thought of -let the Liti-
gation Section know. We are
committed to preserve the civil
jury trial and the extraordinary
quality of justice our forebears
forged and sometimes, literally,
died for.
You can wait around and hope ... Or
you can take steps now to retain the
best of the old system in the new
system,
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/t11: McDemwtt, Chair oj the Litigation
Section, practices with Bryan Cave in
Los Angeles.