All Right, Retired Judges, Write!

Article excerpt

If I would suggest a single thesis for the question before the House, it would be: Find the time to do all the things you never had time for during your active years on the bench.

Some obvious activities come to mind: Traveling with your spouse is a good idea. Get on the golf course on weekdays. Become really acquainted with your grandchildren. Pick up some how-to books, buy state-of-the-art electric power tools and become a real "Mr. Fix It." With your own hands, take up the home improvement projects you always wanted to have done, but were in no mood to pay $90.00 an hour for a carpenter to complete.

But all this is for openers.

As judges, you have been using your brains during your entire professional careers, as well as in your lives as lawyers before putting on the robe. But the brain is a muscle, and one thing is beyond cavil: You cannot allow that muscle to get flabby, and there is the tendency in retired people to do just that. To be sure, you can join a prestigious law firm as counsel or participate in mediation and arbitration if that is your inclination. These are fine choices all, but I encourage you to take a path slightly less traveled.

Technically, I have been "retired" since 1987, but as a senior judge I have opted to work part-time, filling up the void by doing the thing that I always wanted to do during my eight years as an active Pennsylvania state trial judge and nineteen years as an active United States Circuit Judge--I have found the time to write. (1)

And this is the recommendation that I make for every retired judge--trial or appellate, state or federal: Make yourselves heard on scholarly issues. (2) One of the most serious deficiencies in legal literature today is the paucity of books and articles written by judges. It is melancholy that academia has preempted a field once invigorated by the perspective of judges and practitioners. There is a reason for this sea change: the sheer increase of the caseload of the state and federal judiciary.

Look for a moment at the paper storm that has descended on the West Publishing Company. In the thirty-five years between 1929 and 1964, West published approximately 28,000 opinions every year. Yet by 1981, the volume had almost doubled to 54,104. By 1991, the number of published opinions peaked at 65,333. (3) Drawing on my own experience, when I began as a member of the Third Circuit in 1968 each judge was responsible for deciding on the merits ninety appeals a year. But now, each active judge in the Third Circuit decides 400 cases every 365 days.

The more opinions that have to be written by state and federal judges, the less time judges have to write books and articles on the law. In my mind, "After the Bench" is the time for retired judges to finally do some serious writing on the law. A vast landscape of topics stretches out before you, and these are topics that should command your attention. You have seen firsthand the warts and blemishes upon the law and its practice; now is the time to raise a mirror to the public to present what you have witnessed and think should be changed. With that said, I would argue that no problem is more pressing than the high cost of delivering legal services today. In plain speak, it simply costs too much to bring a lawsuit and, as a result, many valid claims aren't being adjudicated. My goal in this article is to spur discussion amongst my fellow "retired" judges on this issue. I defend the thesis that the primary cause for the explosion of fees and costs has been the states' wholesale adoption of the federal pleading rules, especially those dealing with unlimited discovery.

THE DISASTER OF FEDERAL NOTICE PLEADING RULES

First, let's talk about the mess in the federal district courts. We can begin with the astronomical cost of trying a case there. Let's take a case that involves $75,000.00. I select this figure because it's the minimum amount required for diversity jurisdiction. …