Challenging the "Hired Guns"

But a new legal survey disputes Burger's harsh remarks

For more than a decade, Warren Burger has used the podium at conventions of the American Bar Association to administer tongue-lashings to his colleagues. At the A.B.A. convention held in Las Vegas last week, the Chief Justice of the Supreme Court delivered some of his harshest comments to date on the ethics of the U.S. bar. He called lawyers "hired guns" and "procurers" and accused some of advertising their services as if they were selling "mustard, cosmetics and laxatives." He said that attorneys file too many frivolous lawsuits and motions, and declared that a few "well-placed $5,000 or $10,000 penalties will help focus attention" on the problem. He repeated his familiar charge that lawyers contribute to court congestion by failing to encourage out-of-court settlements of disputes. As usual, instead of booing such stinging criticism, the assembled attorneys gave Burger a standing ovation.

The applause suggested that many among the A.B. A.'s 300,000 members (out of the nation's 620,000 lawyers) felt that there was more than a germ of truth in what Burger said. "There are too many lawyers," says Los Angeles Assistant U.S. Attorney Robert Perry. "I'm really soured on the legal system." Some members of the bar, however, believe that Burger was out of order in portraying lawyers as villains in such melodramatic language. "The Chief Justice has a lot of important and valid comments," concedes David Shrager, president of the Association of Trial Lawyers of America, "but it is absoutely inexcusable to use phrases such as 'procurers' and 'hired guns.' " Indeed, says David Trubek, professor of law at the University of Wisconsin, the average lawyer is nothing like the person Burger describes. "The Chief Justice calls up an image of a public ready to sue at the slightest provocation, assisted by greedy lawyers and abetted by incompetent judges," says Trubek. "This is a fallacy."

That opinion is based on 3 1/2 years of research by Trubek and other scholars who worked on the Civil Litigation Research Project, funded by the Justice Department. Among other things, the survey traced how potential legal disputes were resolved in 5,000 households in five different U.S. judicial districts, and some of the results are summarized in the current issue of the U.C.L.A. Law Review. The conclusion: the litigation "mania" that Burger has complained about does not exist.

The legal team found that for every 1,000 grievances, ranging from cases of discrimination to consumer problems, in which more than $1,000 was at issue, only about 100 cases resulted in the hiring of a lawyer and only 50 in the filing of a lawsuit. The researchers also tracked 1,650 civil lawsuits through federal and state courts and interviewed the more than 1,300 lawyers involved. The attorneys spent only about 30 hours on the typical case, which usually earned them well under $2,500, and they had median annual earnings of $45,000. Pretrial discovery, the early phase of civil litigation in which the parties seek information from each other, and which Burger blamed for causing needless trial delays, was minimal or nonexistent in the majority of cases studied.

Trubek admits that there are many frivolous suits, abuses of discovery, and unethical lawyers, but denies that these are typical. "Evidence for most of the claims that we are an overlitigious society is weak at best," he says. Wisconsin Law Professor Marc Galanter, who has studied Trubek's research as well as other data on how Americans resolve their differences, is even more emphatic. The alleged litigation explosion, he says, is "a strong admixture of naive speculation and undocumented assertion." Shrager believes that the latest research finally gives support to trial lawyers after years of criticism from the Chief Justice. He says, "I get curiouser and curiouser that he doesn't seem to communicate an accurate overview of how our system of justice is operating."