Bats, woodcarvings - and courts

By , Hiller B. Zobel is a justice of the Massachusetts Superior Court.

If you owned a manufacturing company whose output ran 90 percent to baseball bats and 10 percent to woodcarvings, which would you consider the company's main product? How would you style yourself: a woodcarver with a sideline in bats, or a batmaker who turns out an occasional carving? What would you name your company? Acme Carvers? Zenith Bats? Universal Woodworks?

The organization that employs me is styled the Trial Court of Massachusetts, and the particular department in which I work - the Superior Court - has for 125 years been justifiably called the great Trial Court, as in ''all encompassing,'' of the Commonwealth. I consider myself a trial judge.

Now most people think a trial judge is like an umpire. The phrase ''trial judge'' evokes the image of a black-robed arbiter, presiding in unperturbed impartiality (like Joseph Welch in ''Anatomy of a Murder'') or irascible unfairness (like Milo O'Shea in ''The Verdict'') over the combat thundering in the courtroom arena at his feet.

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To some extent, the image is accurate. A judge does participate in the trial of cases, whether civil or criminal. Yet, the number of cases tried compared with the overall number of cases filed is tiny. In Superior Court more than 90 out of every 100 civil cases terminate through agreement by the parties involved. And about 85 percent of all criminal indictments end in guilty pleas.

Statistics do not prove anything. But these figures, which are probably typical of trial courts nationwide, suggest a need to reexamine our concept of a trial judge's job and our idea of a trial court.

The name ''trial court'' suggests an institution whose purpose is litigation. A trial court exists to afford the public a regulated battleground, a place where, as Judge Charles E. Wyzanski Jr. once put it, ''the parties can count the jurors' noses instead of bloodying their own.''

No one would doubt that an important function of the court system is being available for trial. But an even more essential concern seems to be the resolution of disputes. Although the two may be related, plainly they are not the same. A case in which the parties reach their own agreement is ended forever. No appeal lies from a settlement; a settled case is not subject to retrial.

When a case is settled, the litigants can start to forget about the accident, or the scrambled business transaction, or the conflict of behavior or hope that pressed them into a lawsuit.

The public also benefits from settlements. Even at the present 9-to-1 settlement rate, courts are unable to bring cases to trial as quickly as they would like. In Massachusetts, where only 1 case out of 10 does not settle, usually a case cannot by tried for a minimum of two years after it has been filed.

Were the settlement rate to slack off by even one point, the effect would be cosmic: Settling 89 (instead of 90) cases out of 100 would mean that 11 cases (instead of 10) went to trial. That is an increase of 10 percent. The same number of judges would have to try 10 percent more cases than they do now; delay would pass from being unfortunate to being unconscionable.

If, as the statistics unmistakably suggest, trial courts in fact primarily produce dispute terminations rather than verdicts, then not only the image of the judge but the reality itself had best begin to change.

Political considerations aside, judges in this country have traditionally been selected on their perceived ability to administer trials. It has been a truism that the trial bar - the lawyers who have spent their careers ''in the pit'' - should constitute the pool of possible judges.

If, however, the trial court spends so much of its effort delivering justice-by-settlement, rather than justice-by-trial, perhaps we should pick new judges and train those already appointed with an eye to their real task, assisting the parties to reach agreement.

When your company sells nine bats to each woodcarving, it may be nice to feel familiar with carving tools; but unless you know how to make bats, you will leave a lot of customers unserved.

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