Cleaning the Courts
I
A FEW months ago, in New York, a little girl crossing a crowded highway was knocked down by a passing truck. The driver called an ambulance and the little girl was taken to a public hospital. The driver then telephoned to his employer and reported the event.
In half an hour a representative of the employer called at the child’s home, found the girl’s father, who had just arrived, and went with him to the hospital, which was a few blocks away. The girl was found to have been very slightly injured, and they put her on to the truck to take her home.
As they left the hospital, the ambulance driver who had brought the girl there accosted them. ‘Do you want a lawyer for your case?’ he said. The father shook his head, somewhat surprised, perhaps, at the question. The truck proceeded on its way back to the child’s home.
At the house they found four young men waiting for them, representatives of four different lawyers who were seeking to be retained to bring an action on a contingent fee for the child’s injury. Each was provided with a printed form of retainer for use in the case. All this happened within less than an hour after the accident.
This is not an unusual occurrence. A serious case, such as a death by accident or a lost leg, in New York, will send as many as forty or fifty ambulance-chasing agents to the home of the victim of the accident. Every possible source of information for advance news of such accidents is covered. The police stations and hospitals are the usual points of vantage. The money paid to tipsters, to police, to ambulance attendants, to hospital employees, to doctors, and to undertakers for prompt notification of accidents runs into large figures.
Quite apart from the general accident business — that which comes to the swiftest and earliest informed in the general mêlée from the common hunting ground. the hospitals and police — are what might be called the specialized fields. Here, for example, is the falling-thing specialist. Every great building operation has accidents. Modern workmen’s compensation insurance is intended to make this type of accident one for insurance, for which the employer must pay his injured employee during his disability. The specialist, however, still finds it a field, and a rich one, for his operations. He has on the pay roll of some contractor in every construction job a man who makes a daily afternoon report to the representative of the specialist of every accident, mainly due to falling things, which occurred during the course of the day. The agent, armed with printed retainers, procures the employment of the specialist, who for the convenience of his large business has printed forms of complaint, through which the injured employee sues another subcontractor for damages caused by the alleged carelessness of his employees in negligently causing an object to fall, to wit: ‘(Blank to be filled here) upon plaintiff, causing him to become sick, sore, and disabled and permanently injured as follows (blank to be filled here) . . .’
One specialist in this field, I am informed, brings a thousand cases of this kind annually in New York City.
Then there is the specialist in the new semi-blackmail field, the food cases. The dealer in food products is in law a guarantor of the wholesome character of his merchandise. The restaurant or hotel keeper with an established reputation finds himself presented with a complaint from a suffering but hitherto unknown patron, who claims to have found a cockroach in the soup, causing mental and physical agony. The milkman wakes up to be sued for a mouse in the milk, the baker for a nail in the bread, the butcher for the sickness caused by diseased and unwholesome meat.
The danger of publicity in the press which would be injurious to the goodwill of his business, the difficulty of disproving something about which the defendant in these cases usually knows nothing and as to which he has no witnesses, make this a particularly lucrative field for ‘settlements.’
So large has this field grown that food dealers and purveyors within recent years have been obliged to organize themselves for self-protection and to report to a central clearing station these claims, where they find not infrequently that the same victim of misfortune has suffered from the deleteriousness of milk, meat, bread, cheese, pastry, and condensed soup, and that the same lawyer has presented his claims to a successful settlement, in which the lawyer has shared fifty-fifty with his client.
Business abhors litigation in these cases. Casualty insurance against accident claims has grown enormously in recent years, with rates of insurance constantly mounting and adding by millions to the cost of doing business, which cost in turn is added to the cost of the product, and that product is sold at such price as to make the general public carry, so far as possible, the burden entailed.
The great American cities all are carrying their part of an unprecedented increase in the burden of accident litigation.
Court calendars to-day in any of our large cities will show the amazing transformation which has occurred in the past quarter of a century in the character and quality of the lawsuits for which the public pays in courthouses, in judges, and in court attendants, and in the time and pay of jurors who are called to decide them. They all make practically the same report: that there has been an enormous increase in litigation and in the number of judges, courthouses, and court attendants; and that, in the main, the bulk of the litigation for which these facilities have been required is contingent-fee litigation.
Twenty-five years ago ‘food’ cases were practically unknown. Accident cases were mainly against railroad companies. While they were numerous enough and more or less a public scandal, in the way they were both prosecuted and defended, the great bulk of the litigation in our courts twenty-five years ago was of a quite different character and these cases formed a relatively small part. Lawsuits in those days brought into the courts the ablest of the lawyers of a former generation, the recognized leaders of the bar. The days are gone, however, when men like Joseph H. Choate, John E. Parsons, and Frederic R. Coudert could be found engaged in forensic contests over weighty questions of law and fact as the main part of their professional work. The automobile, in large part, has brought about this change in the character of the litigation in our civil courts, as it has enormously increased our problems of crime and has extended interminably our criminal classes.
Lawyers of the type of those to whom I referred a moment ago are found to-day only occasionally in the courtroom. They have been crowded out and supplanted by the ambulance chaser and the vast radiation of the accident contingent-fee litigation which the automobile has largely created, ably supplemented by contingent-fee litigation in the other fields of damage claims to which I briefly and quite inadequately have referred.
II
Consider a few statistics; and, while these statistics are from New York, the conditions which they show are not confined to that city, but doubtless can be duplicated in a lesser degree, perhaps, in any great American city. Judge Victor J. Dowling, the Presiding Justice of the Appellate Division of the Supreme Court in New York City, said recently that 70 per cent of the cases now congesting the law calendars of the courts in that city are negligence cases.
The matter has become sufficiently alarming to cause the appointment of a Special Calendar Committee by the Appellate Division of the Supreme Court, whose recent report gives significant statistics, some of which are printed below. The increase in the volume of this type of lawsuit may be indicated sufficiently by the fact that, as the Committee’s report shows, in 1916 there were 9309 cases on the jury calendar of the Supreme Court for the Borough of Manhattan in that city, and in 1927 there were 29,466.
While there have been very great increases in the number of judges in the Supreme Court to cope with this flood, they have proved wholly inadequate to the task. There is a delay in the Borough of Manhattan of twenty-two months before a case in the Supreme Court can be reached for trial. In the county adjoining to the north, Bronx County, there were on January 1, 1927, 9562 cases, and a case could not be reached for trial for twenty-four months. There were in the City Court about 18,000 cases, and a new case could not be reached for trial for sixteen months. There were in the Municipal Court 59,086 cases triable by jury, and a case could not be reached for trial in crowded districts for a year and a half.
An analysis of the cases on the calendar of these courts indicates that over one half of the Supreme Court cases were accident cases, that 84 per cent of those on the general calendar of the City Court were of like character; and it is stated by the Committee that, in the Municipal Court, actions for negligence are increasing even more rapidly than in the Supreme and City Courts.
The delay which this congestion occasions increases rather than diminishes. For example, in 1926 there were 25,596 cases on the Supreme Court Calendar; 15,324 were disposed of, leaving an accumulation for subsequent years of 10.272. The great new courthouse which has just been completed at an enormous cost in New York City, whose facilities were intended to be adequate to house both the Supreme Court and the City Court for generations to come, proved to be inadequate to meet the new flood of litigation before the day of its opening.
If these were all genuine suits, sincerely brought, the situation indicated by these figures, though grave, would be one to be accepted as necessary; and the expense entailed to the public for their trial should be borne as part of the necessary burden of the taxpayer, and of the citizen as juror. But is this flood of litigation sincere? Does it really mean that the need of going to law for the redress of wrongs has increased in this amazing fashion — from 7000 cases pending in 1910 to nearly 30,000 in 1927? What is the quality of litigation now presented to these courts for their determination?
One test of sincerity is truthfulness. Sincerity and perjury should be at opposite poles. Perjury, however, we are told, has increased in our courts to a most appalling degree. Judges who ought to know have made the affirmation of the increase of perjury before them so frequently that the accuracy of this statement cannot be questioned; yet perjury is practically an unpunished crime.
It would, of course, be a grossly unfair picture of a deplorable condition to seem to suggest that this perjury is all on one side. The temptation of defendants to fight fire with fire is an inevitable part of the whole unsavory mess. Many large corporations, including most of the railroads, however, realize that in the long run, and quite apart from ethical considerations, the reputation with judges of playing straight is the only sound policy for corporations that are in court day after day in these cases.
There are plenty of defendants, however, whose methods are quite as questionable as those of the ambulancechasing fraternity. Perjury is no monopoly for either side. The important matter is that this perjury flourishes and nothing is done to make it stop.
Mr. Charles H. Tuttle, the able Federal District Attorney in New York, has studied the records and declares that since 1912, in fifteen years, there have been only nine convictions for perjury after trial in New York County. He says that of the total prison population of the country, state and Federal, according to the United States Census Reports for 1923, there were, out of the total of 109,075 prisoners, only 171 in prison for perjury.
The extent of the growth of perjury is only one test of the sincerity of this new flood of litigation. Here is another. Is it not fair to assume that a man who demands $10,000, which he swears is the extent of his injury, and who gladly accepts from $50 to $150 to settle it, is insincere in his original demand? The Special Calendar Committee to which I here referred, which investigated exhaustively the calendar conditions in New York, found the prevalence of small settlements of cases brought in the Supreme Court so great that it recommended drastic methods of preventing the maintenance of such suits in the Supreme Court, by a penalty imposed on the plaintiff’s attorney personally. This recommendation, however, was one with which the legislature did not concur.
Another test of sincerity in this sort of litigation is sufficiently indicated by the fact that the records show that only an unsubstantial amount of it ever goes to trial at all. From 70 to 80 per cent of these cases which cumber the calendars are settled without trial or are dismissed for failure to prosecute.
Theoretically, at least, the courts are intended only for those who, of their own initiative, seek justice for wrongs which they feel have been done to them. It may be that the grievance felt is fanciful; it may be wholly unreal; but at least it should be genuine. It should have its sole origin in the person who presents it for redress, for he alone has suffered it, if it has been suffered at all. It should not be a grievance created by a self-seeking outsider.
The relation between the contingentfee, ambulance-chasing lawyer and the enormous growth of litigation in New York is a direct one. The Committee to which I have referred states that the great bulk of the accident cases upon the court, calendars are brought by a comparatively small number of lawyers and legal firms. It states that one lawyer filed, in the month of April, 1927, 442 notes of issue for 442 separate cases, and that an aggregate of 882 cases, most of them being negligence suits, were filed by four lawyers or firms of lawyers. All the judges of the Supreme Court in the County of New York acting together could not in one month dispose of that number of cases.
As the Committee says, ’It will undoubtedly be useful to ascertain the circumstances leading to this employment of a very small number of lawyers in this kind of litigation.’ It is precisely this investigation which, with one recent exception, never has been made, either in New York or in any other great American city in which like conditions prevail. It is the heart of the whole matter.
III
The statistics of the Supreme Court cases brought in this wholesale way, while startling, are not complete. How many more cases were brought by this same type of lawyer in the other New York courts, the Municipal Court, the City and County Courts, in the same month in which these appalling figures in the Supreme Court were accumulated?
These suits and thousands of others of a similar character which constitute the flood of litigation in the New York courts, for the most part, are unquestionably the result, not of the desire for litigation of injured plaintiffs, but of the desire for speculative fees of a relatively small number of high-powered, highly organized, contingent-fee law machines with hundreds of outside runners and investigators actively employed in soliciting them from and through police and hospital adjuncts, culminating in the calendars of the courts — with the injured or alleged injured person a pawn in the process. He is a silent partner in a new and strange adventure, with the active partner a lawyer engaged in a doubtful and disreputable business instead of conducting an honorable profession.
It should be noted in passing that casualty insurance tends to increase rather than diminish the growth of this type of litigation. The current quotations of the market price of the stock of the principal casualty companies are eloquent proof that their part in this business has not been without adequate reward. On the other hand it requires little argument to prove that the bar as a whole suffers rather than profits by this transformation of the courts into an arena for contests between ambulance chasers and casualty companies. The pinch of this business so far as the bar is concerned is largely in a quarter which does not receive much consideration and which deserves at least passing mention — its effect upon the young lawyer.
It has been customary in some quarters, of course, to assume an unduly lofty attitude in the matter of the socalled ‘contingent fee.’ Lawyers who began their professional careers with a silver spoon, with well-to-do friends and favorable professional connections, may deplore, if they please, the struggle of youngsters less favorably situated and their somewhat undignified efforts to keep their noses out of the black waters of an overcrowded profession.
The zeal and hard work which an ambitious young lawyer will put upon a case, when it is the only one he has, are not likely to be lessened by the fact that he has to win it to be paid for services rendered to an impecunious client. Neither the public nor the client is likely to suffer from the process.
One of the worst features of the highly organized ambulance-chasing business now rife in our cities to-day, conducted by this comparatively small number of operators, doing business at wholesale with ‘ private-wire ’ systems as elaborate and as expensive as those of any first-class stock-exchange house, is that it is particularly hard on the young lawyer in depriving him of opportunities which well might have fallen in his way. These systems are wholly beyond the pale of legitimate professional activities. They can be operated by laymen quite as readily as by lawyers, and one of the sinister features of the business is the laymen organizations of this kind, which, I have been told, flourish in the field for collecting ‘cases,’ and peddling them to the lawyer who is the highest bidder.
I shall not attempt to consider the evil consequences to the unfortunate client which are inherent in this traffic, except to relate an illuminating incident which occurred a few years ago. A man had been killed in the city streets, leaving a wife and two little children. It was clearly not the fault of the corporation whose vehicle caused the death. The ambulance chaser who got the widow’s case actually admitted that it was ‘a long chance.’ He refused, however, to consider a settlement except on a $10,000 basis, which was out of the question.
When the case had been tried and lost, appealed and again lost, he came around and asked the lawyer for the defendant if there was not something which the company would be willing to do as an act of charity to this poor woman.
‘Why did n’t you talk this way in the first place?’ the latter asked. ‘You know you had no case.’
‘Oh, well,’ said the widow’s lawyer, ‘you have to take the accident business on an annual basis. It is all a gamble. Some cases, which look pretty weak, we win, when there could only be a small settlement. What you lose on one case, you may make on another.’
Certainly this was poor comfort to the widow and clearly a grossly unprofessional attitude to take toward her case. She was no partner in his generalaccident business, sharing in its interesting system of hazards so as to make up for the loss to her and hers of the case which ought never to have been brought.
The explanation which this lawyer made may account for the sheer heartlessness which sometimes characterizes a shortsighted policy in the operation of many claim departments of large corporations. If you have to pay unjust claims to buy peace, why not try to make it up ‘on an annual basis’ by treating harshly and unjustly claims which are honest and proper? One wrong inevitably tends to beget another.
What we are here discussing is not the old subject of the right or wrong of the contingent fee, except as an incident to certain evils long recognized as such by the law and which have become, under the condition of modern city life, far more dangerous than ever before.
Barratry and its two sister offenses, champerty and maintenance, have for centuries been named and denounced as the three disgraces of the common law which from ancient days sought to discourage and prevent the bringing of groundless and unnecessary judicial proceedings.
The barrator was ‘the common mover, exciter, or maintainer of suits and quarrels, either in courts of justice or elsewhere.’ Maintenance was ‘the officious intermeddling in a suit that in no way belongs to one, by maintaining or assisting either party with money, or otherwise, to prosecute or defend it.’ Champerty was the bargain to divide the spoils of litigation, the champertor agreeing to carry on the suit at his own expense. These practices have been denounced by the law and declared to be crimes.
Difficulties which need not be here mentioned have proved that as a crime barratry has been unpunished both in England and America. There are a few old cases in America, none of recent date. In England we are told that from 1726 to 1889 there was no record of an indictment for this offense, and that in 1889 one Bellegrove, though indicted for this offense, was convicted for something else, and the barratry charge against him was abandoned.
In New York, barratry in a comparatively small number of cases has been the occasion of the disciplining or disbarment of a few lawyers, where through exceptional circumstances or by accident the facts of the business became fully disclosed. The mere definition of these offenses has proved insufficient to prevent the abuses at which it was aimed, and justice today, in America’s largest city, stands like a perplexed Mrs. Partington with an ancient broom struggling unavailingly against this new incoming flood of muddy litigation,
IV
What we have to deal with here is a major problem in house cleaning, of driving the traffickers from the temple of justice. It is also something more. The situation is one which in many of our states calls for a practical test of the efficiency under modern conditions, which have been outlined above, of the traditional American theory of the organization and relationship of the bar to the bench in the processes of justice.
In London, current statistics show that there are as many street accidents as in New York. No such flood of questionable litigation, however, confronts the great law courts in the Strand.
The reason for the difference is mainly in the organization and operation of the English bar. From time immemorial the benchers of the Inns of Court have had control over the calling of lawyers to the bar and the discipline for professional misconduct or the disbarment of unworthy members. It is a bar composed of all its members, which, acting through its chosen officers, exercises all the powers of self-government. Scotland, Ireland, Canada, and Continental Europe have organizations with corresponding powers.
We have bar associations, to be sure, in America. They are, however, in the main, social and educational. They are purely voluntary, with a membership which includes generally a minority only of qualified practitioners. Discipline of unworthy members of the profession is no one’s business in particular. If it is undertaken by bar associations it is a purely voluntary act, and the association possesses no power of subpœna, and its power to investigate includes only those who voluntarily come before its committees. The bar does not function as a disciplinary organization. Through its leaders it may preach professional ethics, but it is powerless to enforce such doctrines by the discipline of offenders against its canons. It may and on occasion, by a clumsy procedure ordinarily exceedingly wasteful of time and energy, does investigate complaints and present charges to the courts against lawyers who commit flagrant offenses, principally failure to pay over the client’s money. The power to repress and punish disreputable practices injurious to the good name of the profession and the public, power which the English benchers possess and exercise, does not exist with us.
Under the American tradition, lawyers are officers of the court, which prescribes the condition of their admission to practice and which may, on occasion shown, discipline or disbar them. The courts have all the powers but almost none of the disciplinary machinery necessary for what is obviously administrative rather than judicial work. Many leaders of the profession have realized this weakness in the American tradition and are striving to change it and to overcome the apathy, timidity, and conservatism which, with some practical difficulties, to-day make slow the process of creating a self-governing bar.
Under existing conditions of the American tradition, the responsibility for remedying abuses, such as have been outlined here, is primarily with the courts themselves. The serious present question is the capacity of the courts to meet these responsibilities, lacking, as they do, this administrative organization. An interesting recent experiment in Milwaukee in the suppression of ambulance chasing is in point in this connection and indicates what can be done.
A local ambulance chaser, who was not even a lawyer, but who boasted that he had six hundred cases then pending, had the hardihood to sue one of his employees for a balance claimed to be due arising out of the ambulancechasing business. A member of the Milwaukee Lawyers Club happened to be retained to defend the case. The unsavory facts ascertained from the testimony in this action later formed the basis of a petition signed by all the directors of the Lawyers Club to the Circuit Court. The court was asked to exercise its own inherent power to make a general investigation into what was happening about the doorstep affecting the cause of justice in the jurisdiction of the court.
A general inquisition was held accordingly with members of the Lawyers Club acting in conjunction with the Circuit Court. It took months of time and disclosed startling irregularities and criminal conduct. The court was asked to deal with its own records and to purge these records of all cases tainted with champerty and maintenance or any other malpractice, or to compel plaintiffs to purge their cases of such taint by engaging new attorneys. This was done, and done most thoroughly, and the court also adopted rules strictly governing members of the bar, which these conditions had shown to be necessary. We are told that, by this vigorous coöperation of the bar and the bench, ambulance-chasing operations in Milwaukee have entirely ceased.
One part of the petition of the bar in this interesting matter has not yet been put into effect. The court has been asked to call before it all these malefactors whose activities have been discussed and to make them show cause why an injunction should not issue restraining them from ever again engaging in any such practices. ‘The reason why we took this final step,’ says Mr. Lyman G. Wheeler in a letter published in a recent number of the Journal of the American Judicature Society, ‘is that if we rely upon criminal proceedings in misdemeanor or crime, to enforce our remedies, there will be much of the usual delay and escapes in jury trials. By utilizing the power of injunction, the court can cite these men summarily before the court for contempt in case they violate the restraining order of the court.’
Presumably the injunction process suggested is one intended for the laymen engaged in this business, as the established power to punish by disbarment lawyers thus engaged would seem to require no such supplement.
The proceeding above described was, of course, a novel one. The facts justifying a general inquiry or inquisition had to be presented to the court to make clear that an occasion existed for the exercise of the court’s power to clean its own house.
The significant fact is that the vigorous exercise of its inherent power was found adequate by a court resolved to vindicate its dignity and authority in the interest of the public.
The calendar conditions in New York and the facts already a matter of public knowledge would seem to justify a similar inquiry into personalinjury and contingent-fee litigation in that city. The inherent power of the court over its officers is in that state practically without limit, and has not been shown to be insufficient for a like proceeding. There is no question that such an inquiry would be welcomed by the public and would be heartily supported by the bar.
At a meeting of the Association of the Bar held in December 1927, a proceeding such as that successfully conducted in Milwaukee was authorized and the Executive Committee of the Association requested to cause a petition for a general examination of contingent-fee and damage litigation to be filed with the Appellate Division of the Supreme Court, other bar associations interested in such an investigation to be invited to join in the application.
Those who believe that the American tradition is inherently defective, that the growth and development of these and similar abuses are an almost inevitable consequence of the breakdown in practice of the theory of judicial control over lawyers, are advocating for this and other reasons an integrated bar, self-governing and with full power of discipline over its members. Such a revolutionary change has been made in five American states, the most recent being California, added to the list this past year.
Those who believe the old theory is adequate, and that it needs no such fundamental change, will defend their position best, not by an elaboration of learning upon the history of its origin or development or by alarmist prognostication of the dangers of new and untried programmes, but by aiding the courts to demonstrate that they can and will clean house and will manifest to a long-suffering public that over the whole domain of the professional conduct of lawyers the courts not only reign, but govern.