Again, let me express my appreciation to you and Congressman Celler for the opportunity to appear and be heard on this matter which is of great importance to the organized Bar of the City of New York.

Sincerely yours,

Chairman, Committee on Courts of Superior Jurisdiction.

STATEMENT OF WALTER R. MANSFIELD ON BEHALF OF VARIOUS NEW YORK BAR ASSOCIATIONS

I want to thank this committee for the opportunity to appear here, with Mr. Arnold Fraiman, as the representative of seven bar associations: (1) The. Association of the Bar of the City of New York; (2) the New York County Lawyers' Association; (3) The Bronx Bar Association; (4) the Empire State Chapter of the Federal Bar Association, of which one of your distinguished colleagues, Congressman Dean Taylor, is the president; (5) the Maritime Law Association of the United States; (6) the New York Patent Law Association; and (7) the New York State Bar Association. With a membership in excess of 20,000, they comprise the great majority of attorneys practising in New York. I was asked to speak on their behalf because I served with Mr. Fraiman as a member of a joint committee appointed to study the need for additional judges in the southern district of New York and participated in drafting their joint report on the subject which has been adopted and approved by every one of these associations. A copy of that report was introduced into the record of these. proceedings by Congressman John Lindsay.

When we undertook the study, every lawyer on our joint committee agreed upon one thing: prompt and drastic action is needed to avoid a threatened breakdown in the administration of justice in the districts court for the southern district of New York and the eastern district of New York.

It's no comfort to an injured worker or seaman to tell him that, although he has a good claim for a substantial amount, we cannot get him a trial and disposition of his case for at least 22 years. He, and many other people like him who have meager finances, are the ones most seriously hit by the delay. When they find that they cannot get to trial soon they lose their respect for the court, for the law, and last, but not least, for the lawyers representing them. They cannot understand why they must wait when billions are being appropriated annually for many Federal agencies. The recent assault upon Judge Cashin in New York by an injured seaman whose case had been pending for over 2 years suggests what this type of frustration can lead to.

None of our committee members assumed at the outset that additional judges were needed. Nor did we favor the idea. On the contrary, I thought the solution probably would lie in changing and modernizing the court's administration and procedures. But after we studied the dockets and talked with many people involved, we ended up unanimously concluding that, while certain procedural reforms will help, six additional judgeships represent the absolute minimum required to enable the southern district to function properly, in addition to the two recommended for the eastern district.

What we found was that while other Federal districts probably need more judges, the situation in the southern district of New York is unique, not just in terms of the volume of litigation handled per judge, but in the unusually large percentage of highly complicated matters that take much more time to decide than the ordinary case.

As of July 1, 1959, the 18 judges in the southern district, representing 7 percent of the Federal district judges in the country, were handling a caseload of 10,947 civil cases, or approximately 20 percent of the 56,430 such cases nending before the 86 Federal courts throughout the country which have purely Federal jurisdiction. More important, however, is the fact that this caseload included over one-third of the Government's antitrust suits, 20 percent of the country's private antitrust litigation, 20 percent of its patent litigation, and 45 percent of its admiralty proceedings (not including ordinary Jones Act personal injury suits). This is the kind of litigation that takes much more of a judge's time and intellect than the average case. The dockets contain numerous examples of what is involved. All you have to do is look at Judge Weinfeld's 199 pages of findings of fact and conclusions of law in the Bethlehem Steel-Youngstown merger case, to appreciate the enormity of the work presented by such litigation, which usually requires a thorough analysis of a complex industry before it can be disposed

of. Yet statistical records treat such cases, which may take as much as one year of a judge's time, the same as the minor negligence suit that requires 2 or 3 hours of trial.

The chairman of this committee, Congressman Celler, has called for vigorous enforcement of the antitrust laws. For this more judges are essential. Yet antitrust cases represent just one example of the difficult, protracted type of problem presented for decision in the southern district of New York. There are many others: stockholders' derivative actions, labor-management disputes, patent infringement claims, and cases involving complex fields of industry ranging from bananas to television broadcasting. The southern district court has been invoked to settle such difficult cases partly because it happens to be situated at the hub of the Nation's largest economic, shipping, and financial center.

We have heard representatives from other districts, notably California and Colorado, urge their congested dockets as a reason for more judges. On this basis the southern district of New York is extraordinary, for here we find an average of 608 cases pending per judge as against an average of 321 per judge in the 12 largest metropolitan districts which handle over 45 percent of the country's Federal civil cases and an average of 249 in all 86 districts. At the same time the southern district of California, which is the subject of an application for further districting here today, had only 115 cases pending per judge.

The heavy backlog in the southern district of New York is not due to any laziness on the part of its judges. In 1959, that court disposed of 334 cases per judge, as against 253 per judge in the 12 largest metropolitan districts, and 236 per judge for all 86 Federal districts. Again, I cannot overlook mentioning the fact that, for the same period, California, which has been represented here today in two pleas for additional Federal districts, disposed of 177 cases per judge in the northern district and 136 per judge in the southern district during the exact same period. Even if we disregarded the unique type of caseload involved, the judges of the southern district are turning out a prodigious amount of work per judge.

Yet this hard-working court cannot keep up with its ever-increasing workload. Last year 6,549 new cases were filed as against 6,011 disposed of. New cases are presently being filed at the rate of 7,100 per year. The court is in the position of a person desperately trying to climb up a set of moving stairs that keep carrying it back faster than it can climb.

The problem is more serious than one of delay. It raises the question of what kind and quality of justice we can expect from an overworked court. Anyone who has been forced, as I have been, time and again to argue important motions before a southern district judge at 7 or 8 o'clock at night, after he has been listening all day to a calendar of more than 150 motions, will understand what I mean. The judge is dead tired. How can he be expected to function fairly and efficiently? Yet his workload will not permit postponement, particularly if the case involves such constantly recurring emergency matters as a jurisdictional dispute between labor unions, where every day's delay affects the livelihood of thousands; or a petition for a writ of deportation or habeas corpus, which usually involves the lives and liberties of the petitioners. I have participated in motions for temporary injunctive relief where we have appeared all day Saturday to present our witnesses, exhibits, and briefs, simply because there was no other time available. In 1959 the court processed 10,350 motions, a 20percent increase over 1958 and 32-percent increase over 1957. Visit the Foley Square courthouse on any Saturday or Sunday and you will find a fair share of the 18 judges busily engaged. Even the most conscientious judge reaches a point where the burden becomes intolerable.

Our committee considered whether the problem could be solved by measures short of additional judgeships, and failed to find any solution. Visiting judges from other districts, for instance, while welcome, have limited utility. They cannot get involved in the southern district's No. 1 problem-the long and complicated commercial case-because they are not in the district long enough. One cannot rely upon their being available at any particular time. The best example is the eastern district of New York where a "crash program" undertaken in the spring of 1959 with the aid of 15 visiting judges temporarily reduced its backlog from 2.348 cases to 1.775. Yet within 6 months, even with the help of 4 visiting judges, that district's backlog slowly climbed over 1,800 cases simply because the current filings exceeded the court's dispositions.

The judges of the southern district of New York have already adopted some procedural measures designed to improve the court's efficiency. Long and com

plicated cases are now assigned to one judge for all purposes. This avoids some of the waste that used to result when a series of judges would be forced to study a case in order to dispose of particular motions before them. Some cases were heard by as many as 12 different judges on motions.

A new pretrial calendar rule has been adopted which is hoped to dispose of more cases through pretrial.

But the problem cannot be met by measures short of additional judgeships because litigation in the southern district of New York is increasing, not decreasing. Labor and management representatives both predict, for instance, that the new Labor-Management Report and Disclosure Act of 1959 (the Landrum-Griffin bill) which went into effect in December, will result in a flood of new litigation by union members, much of it in the southern district of New York, which is the situs of the headquarters of many important unions. Prompt disposition of this type of litigation will be vital if the law is to mean anything. Yet it cannot be disposed of promptly under conditions as they exist today.

Acts of Congress are of no practical force and effect without judicial enforcement. Of what use is it for Congress to devote months of careful consideration each year to new legislation unless we have a judiciary in a position to enforce it promptly. Yet that is exactly the situation in some fields in New York today. After reviewing the present assignment of judges in the southern and eastern districts of New York we are convinced that a minimum of six judges in the southern district, and two in the eastern district, is essential to enable these courts to keep up with the current inflow of civil and criminal business, even if these courts continue to use retired senior and visiting judges. Adequate space and facilities exist in both courts to accommodate them, and we are prepared to show how they would be utilized.

Perhaps the best summary of the situation in the southern district of New York is to be found in an editorial published by the New York Times on January 20, 1960, a copy of which I request be made part of the record of these proceedings, in which the Times stated:

"The flood of cases has risen no less than 36 percent in the last 5 years, with the same number of judges to carry the load. And their burden is greater than that which judges in other districts have to bear."

The CHAIRMAN. Our last witness today will be our distinguished colleague from New York, and more particularly Brooklyn, Representative Francis Dorn, who wishes to introduce Mr. Robert A. Morse, of the Brooklyn Bar Association.

STATEMENT OF HON. FRANCIS E. DORN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK; ACCOMPANIED BY ROBERT A. MORSE, ATTORNEY, BROOKLYN BAR ASSOCIATION

Mr. DORN. I think there is no need of introducing Mr. Morse to you, Mr. Chairman; but to the other members of the committee, Mr. Morse is a distinguished colleague of mine from the bar of the city of New York. He is a former assistant U.S. attorney and he is presently chairman of the Federal Committee of the Brooklyn Bar Association and an eminent practicing attorney in Brooklyn. The CHAIRMAN. We welcome you here, Mr. Morse.

In addition to all those qualifications, you are a neighbor of mine and live in the same apartment house.

Mr. MORSE. Yes, Mr. Chairman.

The CHAIRMAN. It is nice to have you with us, Mr. Dorn.

Mr. Morse, we will be glad to hear from you.

As I cautioned Mr. Mansfield, we already know pretty much about the needs of Brooklyn because I, being on the committee, would not be silent when it comes to Brooklyn.

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We have recommendations from the Judicial Conference which recommended those two judges. As a matter of fact, I am quite sure that we will be satisfied

Mr. MORSE. Let the record show that the delegate from the Brooklyn Bar Association could take a hint.

I will just submit my prepared statement and appended statements from Sterry R. Waterman of the U.S. Court of Appeals for the Second Circuit; a statement by the Honorable Walter Bruchhausen, chief judge of the U.S. District Court for the Eastern District of New York; a statement by the Honorable Cornelius W. Wickersham, U.S. attorney; and the conclusion of the U.S. attorney's report for fiscal year 1959.

I have appended all those documents to my statement and I will submit it in 1 copy with 10 copies of my statement.

I thank the committee for its attention.

The CHAIRMAN. Thank you for your brief statement and I am sure that your written statement is just as cogent as your oral statement was brief.

(The documents referred to follow :)

RESOLUTION OF THE BROOKLYN BAR ASSOCIATION FAVORING THE ADDITION OF TWO NEW DISTRICT JUDGES WITHIN THE EASTERN DISTRICT OF NEW YORK AND TWO NEW CIRCUIT COURT JUDGES FOR THE U.S. COURT OF APPEALS

Whereas the eastern district of New York, comprising Kings, Queens, Nassau, Suffolk, and Richmond Counties, has grown approximately 2% million persons in population and has developed numerous new industries since 1930; and

Whereas the number of U.S. district judges has not been increased from six since the year 1936; and

Whereas the time between the commencement of an action and its ultimate disposition is now 4 years in the U.S. district court, and 2 years from the date of the filing of the note of issue; and

Whereas the U.S. Judicial Conference for the Second Circuit has recommended these additional judges in order to correct the injustices resulting from this delay in the ultimate disposition of litigation: it is hereby

Resolved by the Brooklyn Bar Association, That this association heartily rec ommends the addition of two new district judges and two new circuit court judges presently under consideration by the House Judiciary Committee.

STATEMENT ON BEHALF OF THE BROOKLYN BAR ASSOCIATION

FEBRUARY 3, 1960.

Hon. EMANUEL CELLER,

Chairman, House Committee on the Judiciary,
Washington, D.C.

DEAR CONGRESSMAN CELLER: I should like to extend my appreciation, and that of the Brooklyn Bar Association, for this opportunity to set forth our views in support of the bill which provides for two new Federal judges in the eastern district of New York, and two new judges in the U.S. Court of Appeals for the Second Circuit.

Unfortunately, your communication did not reach me until February 1, 1960. Consequently, there has not been sufficient time to collect all the data which might be desired for presentation on February 3, 1960, before your committee. However, this matter is so important that I have been designated by the president of the Brooklyn Bar Association, Lynn G. Goodnough, to present our views to your committee concerning the essential elements underlining the problem concerning the Federal court in Brooklyn. We would appreciate the privilege to submit such additional data as we may see fit within the near future.

I am addressing this report not only in my capacity as chairman of the committee on Federal legislation, but as one who served as an assistant U.S. attorney in the eastern district of New York for approximately 21⁄2 years, and as one who served as law clerk to the Honorable Walter Bruchhausen, presently the chief judge of the court. It is with this experience in mind that I desire to present to this committee the compelling reasons for passage of H.R. 6159.

The eastern district of New York comprises the counties of Kings, Queens, Nassau, Suffolk, and Richmond, the last of which is known as Staten Island. In 1930, the population of this area was 4,288,984. At that time the district had five judges and a sixth judge was added in 1936. Today, some 25 years later, the population has grown to 6,764,000, a growth of approximately 2,476,000. During that time the jurisdiction of the Federal court was immeasurably increased by changes in the national labor law. In addition, the waiver by the Government of its sovereign immunity brought forth a great number of tort actions against the Government. During this time litigation concerning such subjects as taxation, immigration, maritime causes and criminal actions was greatly increased.

The population explosion was accompanied by a litigation explosion the nature of which has been such that the court has been, for all purposes, severely hampered.

During the entire 25 years, when our system of society was undergoing vast changes calling for extensive litigation, the judge power of the U.S. district court for the eastern district of New York has remained in status quo. The eastern district of New York has undergone a phenomenal growth of those factors which bring about litigation. An example of this is the fact that although a high proportion of incoming sea passenger traffic goes through the southern district of New York an extremely high percentage of the freight discharged by cargo ships passes through Brooklyn, which is Kings County. This fact, coupled with the tremendous increase of new dock facilities in Brooklyn, has brought about a tremendous increase of litigation arising out of injuries to longshoremen and harbor workers, which injuries are covered by Federal law. The growth of industry in Nassau and Queens, as well as within other counties in the eastern district, has brought forth extensive Federal litigation. Much of this litigation requires trials of an extensive nature all of which increase the workload of the court. As pointed out by Judge Bruchhausen in his letter, dated February 2, 1960, a copy of which is appended hereto, one of the judges in the eastern district recently presided in a criminal trial which consumed 7 weeks of trial time and a number of other long cases await trial. Judge Bruchhausen emphasizes the fact that he has been unable to obtain help from judges in other districts since they, themselves, have problems within their own jurisdictions.

A quotation from Judge Bruchhausen's letter adequately points up the problem. He says: "While the adoption of modern procedures has been helpful, they are of minor value and not a substitute for judge power."

Although statistics are of great value it is only by practicing within the eastern district that one may be fully impressed with the great injustices that result from inadequate judge power. All too often I have witnessed, with saddened heart, the tragic capitulation of plaintiffs who have been forced to accept inadequate settlements because of the inability of plaintiffs to receive an early trial. On the other hand I have also seen, during so-called crash calendar programs, defendants pay on cases which have absolutely no merit when faced with settlement conferences before the court. It would be a tragic affair if the Federal court, long the barrier and bulwark of individual freedom and liberty, were to become an insurance adjustment house as has occurred in so many of our State courts.

With respect to the so-called crash programs wherein visiting judges assist with calendar clearance within the eastern district, as referred to on page 1 of Judge Bruchhausen's letter, it might be readily seen that no sooner have the judges departed for their respective jurisdictions when the backlog of new cases brings the court right back to where it was before. Artificial crash programs which strain the court, overload the office of the U.S. attorney in order to bring about an improvement in the numerical statistics of the court, are not a substitute for a just result which grows either out of a fair trial, or as a result of a settlement against a background where either the plaintiff or defendant could get a trial within such a time so as to render any settlement a sensible one.

With respect to the time element between the filing of the note of issue and the actual date of trial, litigants are required to wait approximately 21⁄2 years be