Dean's Address

2001:  A Case Odyssey - From 
Snail Mail to Email

By James S Bostwick

President Bob Parks, First Spouse Lynn Parks, Fellows of the Academy and Honored Guests:

It is a challenging process deciding what to say to such an exceptional group Of people. It reminds me of what Elizebeth Taylor's 5' husband said when they were about to get married ‑ "I know what to do ‑ I'm just not sure whether I can make it sufficiently interesting!"

In 2001, we stand on the cusp of the new Millennium, with modem advances propelling us forward at an ever‑accelerating velocity. All around us new ideas and new technologies explode ‑ constantly changing our lives, our profession and our society. This is a unique moment in time to look both forward and back at these remarkable changes, look at how their benefits and burdens impact us ‑personally and professionally ‑ and give some thought as to how we might deal with them in the future

As I look out at this sea of faces, I see a mixed generation of individuals and professionals. Many of you remember what life and the practice of law was like thirty or forty years, some fifteen or twenty years. Today, trial law and society have been altered dramatically. Many of us are frightened by these changes ‑some unwilling to embrace them or even try. Some have reluctantly put a toe into these dark, roiling waters. A few have joyfully immersed themselves.

We are all affected by this dramatic new landscape. Our law practices would look very different to a visitor from the fifties! Look at technology for example. We expected its development would gain us more time and facilitate personal interaction. We expected the Internet to give us enlightenment. In reality, we have been thrust into a world that is more complicated and for some more intimidating.

Many feel they have less time, more intrusion and less opportunity for introspection. Some of us are over‑whelmed with the speed and the pressures of the information age. I know that personally, I feel technology changes faster than I can learn it! Many of us, perhaps wistfully, wish for a few blessed moments ‑ in practice or at home ‑ unencumbered by the ubiquitous cell phone; the instantaneous fax and the insistent world of email. Well, the bottom‑line is ‑ for most of us anyway it's a love‑hate relationship. But, as my wife loves to say, we simply can't afford the divorce!

Let's put the last few decades in perspective:

Just over five hundred years ago the Gutenberg press was invented. Before that moment in time, there were a total of only three hundred bibles in existence. A bare two years later, there were twenty million!

In the eighteen hundreds the mail was delivered across America by the Pony Express. That romantized institution lasted just one year, until it was bankrupted ‑by a thin wire hung on a pole. The telegraph spread faster than the Gutenberg bible. In the late eighteen hundreds the telephone was invented. As usual, lawyers, ever quick to leap on the bandwagon of change, refused to embrace the possibilities. Alexander Graham Bell's father‑in‑law, a lawyer, reportedly told him to “ stop messing with that useless toy ‑ and do something productive for a change".

Just five hundred years after the invention of the printing press, another remarkable new device was developed ‑ one that would create more accelerated change in the arena of communication than anything that has gone before. I am speaking of the Transistor ‑ and its progeny the Silicon Chip. Talk about profound changes! Messy sheets of carbon gave way to Mag cards ‑ then the Xerox machine. Computers went from room size to desk size. Then we got faxes and finally instantaneous e‑mail, voice mail, cell phones and PalmPilots. I heard a news piece the other day that the last company that maintained and produced pay phones was going out of business. There are now less than 5% of the pay phones that existed in 1980. Apparently, cell phones have killed them!

Lets take a look at a few of the ways trial practice has changed. Is the typical juror of today the same as in years past ‑ are the judges? Do we have the same relationship with our clients or our adversaries? What have we accomplished and what are we in danger of losing?

When most of us started practice, the public only saw a trial when they sat on a jury! Today most jurors will have seen Court TV, they will have watched Judge Judy and seen innumerable law programs (all trials last about fifteen minutes ‑right?). These same jurors have watched portions or much of the O.J. case. They got liberal doses of legal commentary. Today's jury thinks it knows a lot more, and certainly arrives with a substantially greater mind‑set. Add to this the pervasive propaganda effort of the insurance industry ‑ designed to create a malignant jury attitude about the civil legal process.

In the mid eighties to mid nineties, while the population of California increased by fifteen percent, filings of tort lawsuits decreased by 49%! Experts have become so expensive that it can easily and quickly become impractical to take your case to trial. Alternative Dispute Resolution had not been invented 20 years ago. Today most courts require ADR and many of the best trial judges have left the bench for this lucrative field. In many areas there is huge pressure by the court to settle every case. Mediators pride themselves on their "batting averages". The negotiating skills of an attorney are becoming more important than his or her trial skills.

While there are still some extraordinary jurists, many newer judges today seem less capable. In many jurisdictions judges must stand for election, which politicizes the process. Where judges are appointed, there is pressure to appoint more prosecutors and fewer lawyers from the civil side of the bar. Salaries are inadequate to attract successful and experienced applicants. In San Francisco, a baby lawyer may well be making fifty thousand more a year than the judges they appear before!  Speed is more important than the quality of the jury to many judges. Recently, I had an otherwise very fine trial judge limit my entire voir dire to just thirty minutes.

The relationship between insurance defense counsel and claims personnel used to be one of symbiosis. Now it frequently seems more adversarial. Shortsighted claims practices and inadequate funding hamstring defense attorneys. Hourly fees in casualty defense are far under what is reasonable. Inexperienced lawyers are given business at ridiculously low rates to foster competition. House counsel is used more extensively. Capitation is "in".

On the plaintiff's side, the insurance industry's powerful resources and negative campaigns make it more and more difficult for most plain tiff practitioners to try cases. All over the country we are battling tort reform, limits on fees and damages and other inroads on accepted principles of tort practice. The plaintiff's attorney has been painted with a public image of greed. Carefully orchestrated claims of  "frivolous suits" and "litigation explosions" taint the jury pool with toxic effect.

Continue to Page 2