Burger Beefs

Once while sitting as a trial judge, Chief Justice Warren Burger listened patiently as a young prosecutor presented nearly an hour of expert testimony on fingerprint evidence. Burger naturally assumed that the case would hinge on a disputed fingerprint. To his consternation, he eventually discovered that the fingerprint was not in question at all; the defense accepted it. Not for the first or last time, Burger had been victimized by a familiar courtroom figure: the inept trial attorney.

Unsure of himself and his field, such a lawyer often bogs courts down in otiose efforts to cover every unthought-of contingency; or, at the opposite extreme, he may sink a client's case by missing a critical point. After 42 years as a practicing lawyer and judge, Burger has sadly concluded that perhaps as many as one-half of all lawyers who appear in American courts are incompetent. Last week, in a speech at Fordham Law School, the Chief declared that it was high time special additional training and testing be required before a lawyer may call himself a trial advocate.

In fact, most of the 355,000 lawyers in the U.S. rarely enter a courtroom; they stay in their offices drawing up contracts, wills or divorce papers. But any U.S. lawyer is entitled to practice any kind of law he wishes. As a result, said the unhappy Chief, "The courtrooms of America all too often have 'Piper Cub' advocates trying to handle the controls of 'Boeing 747' litigation."

British Model. Burger urged that the regular law school course of three years be compressed into two, so that a third year for prospective trial lawyers could be devoted to courtroom training. He also suggested that this third year be followed by a few years of apprentice practice not unlike medical residency programs.

Burger's legal model is the British system, under which some 300,000 solicitors defer to 3,000 barristers for all courtroom advocacy. The resulting professionalism speeds the trial process and tends to prevent a case turning primarily on the uneven skills of opposing advocates. Critics contend that the clubbiness of British barristers sometimes leads them to pull punches rather than fight for the best interests of clients. But Burger feels that too many U.S. lawyers push the adversary system to the other extreme and brawl to an unreasonable degree that wastes court time.

Many lawyers were pleased that someone of the Chiefs stature had finally addressed the problem. "Judges and lawyers have been talking about this privately for years," commented Federal Appeals Court Judge Irving Kaufman, "but they've hesitated to say it publicly." Most attorneys who now specialize in trial work will doubtless support the proposal; for opponents, Burger had a warning: "The views of practitioners who are affected cannot be controlling any more than we allow the automobile or drug industry to have control of safety or public health standards. There are 'consumers' of justice whose rights and interests must have protection."

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