Dean's Address

Advocacy at the Crossroads

By Don M. Jackson

The charge given to the dean of the academy under article V, sec. III of the by‑laws is as follows:

"The Dean of the Academy shall correlate matters of law and procedure to enhance the influence, prestige and importance of advocacy, and he shall address the annual convention on the result of his research..."

It is on the basis of such a charge that I address you at this time, directing my remarks and observations to those matters of law and procedure which recently either have been developing or recommended, and which appear to portend a profound pressure for changes in our system of advocacy, and its influence upon society.

As we enter the decade of the 1980's, our profession as advocates stands at the crossroads. We are assailed on all sides by charges that our time‑tested and finely developed trial procedures and methods are out‑moded and unwieldy. Our long established and successful system of trial by jury in civil actions has been challenged as an unnecessary burden and imposition upon society, totally disregarding the hazards, the potential inequities and the loss of substantial personal protection which would be involved in any alternative solution. The critics also challenge our society as being the most litigious nation of people in the history of mankind, conveying by such criticism the suggestion that, to be litigious, is to be abnormal. Such a challenge completely overlooks and ignores the fundamental truth‑that if we have become litigious, it is only because we have developed a system of judicial resolution of disputes which has so guaranteed and protected the interests of society that it is recognized, accepted and resorted to by our citizens as their preferred method of asserting and protecting their personal and property rights. Can anyone in his right mind, who has dispassionately analyzed the situation, reach any contrary conclusion? I submit that they cannot. Our system of advocacy has worked. It has worked so well that the public more and more has turned to it, rather than to arbitration, administrative hearings, or similar devices and alternatives.

The interesting and perplexing aspect of the present situation ties in the fact that we find ourselves assailed and besieged because our system has been so successful in fulfilling both the needs and desires of the public. Yet, it was only within the last two months that no one less than the Chief Justice of the United States said that, unless we lawyers do something about the delay in our courts, the public will do it for us.

Since each of us here assembled knows by experience that the adversary system as we have developed and refined it, is the greatest method for providing the greatest protection to the largest number of people in our country, we must carefully examine 9 the reason for such challenges, and determine what action we can, and should, take to stem the tide. Unless we do so, we can rest assured that changes will occur with accelerating rapidity, changes which in most respects may well not be in the public interest.

Many of these criticisms have been caused by public ignorance, or lack of accurate information. Thus, for example, in a recent syndicated newspaper column, a member of the public, corresponding with the columnist said, and I quote:

"Laws that once were designed to protect us have been turned inside out. Today, nobody is safe from law‑suit‑happy lawyers or ambulance chasers who will take any case on a contingency basis; 'If I lose it costs you nothing. If I win, you pay me one half or one‑third of whatever I can get.'”

"Decisions handed down by screwy judges and nutty juries are scandalous, if not crazy. Recently a court in Washington, D.C., instructed a minister to pay $60,000‑00 because he allegedly called a woman parishioner 'an old devil.' The woman is appealing the case to a higher court. She wants $800,000.00."

"I am, 67 years old and can never remember a time when things were so bollixed up. Laws once protected people. Today, one must protect himself against the laws and the lawyers.''

The columnist responded as follows:

"Your letter makes some valid points. The legal system in this country is long overdue for some serious overhauling...”

Comments like these from lay members of the public are disturbing, and cannot be ignored. They reflect a growing concern by the public that our system of advocacy is due for an overhaul. Unfortunately, we, the advocates, have not responded adequately to these and similar criticisms, both within and without the profession. Unless the trial bar, with the assistance of knowledgeable and able members of the bench and laymen, can change the course and power of the growing onslaught, we might well see the end of our present system of civil litigation.

Much of the current attack has arisen because of the unprecedented growth of civil litigation in the past quarter century, not only in volume, but in complexity. As I indicated, we have become the most litigious society in all history, and, with the advent of pre‑paid legal service plans, it is only reasonable to assume that pressures, either for increased litigation, or for some alternative methods of dispute resolution, will mount. As of this time there are an estimated 700 to 800 pre‑paid legal service plans in existence in this country, covering at least 2,000,000 families, and they are rapidly increasing.

Yet, this is only one of the factors involved. Many of us can recall that period of time in which the trial of a law suit took place without any discovery, with the possible exception of a deposition of the opposing party. There were no rules of procedure permitting such currently commonplace matters as interrogatories, request for admissions genuineness of documents, or even the identity of witnesses. In fact, it was not uncommon at the time when some of us began the trial of cases, for counsel to have no advance knowledge about either the existence, the identity, or the anticipated testimony of witnesses called by opposing parties, until they took the stand and testified. Cross‑examination was necessarily a finely honed, challenging, spontaneous, and frequently disastrous experience. This was particularly true with reference to expert witnesses, with doctors, accountants, economists or otherwise, none of whose testimony could be anticipated, much less discovered. Trials, as a result, were shorter, less complicated, and , more importantly, less precise in their results. The so called "Jumbo Verdict," so common in today's litigation, was unknown. Many matters were settled by thorough but friendly negotiations between attorneys, who had practiced in the same community, who were closely associated, and whose professional relationship was exemplary. Verdicts were modest, and such matters as court congestion and trial delays were generally unknown. If a trial took more than a week, it was an extraordinary occurrence. Economists and actuaries were unknown, principally because no data was discoverable upon which to base their testimony. Complex, multi‑district in and protracted litigation, such as we have come to know increasing numbers, since the electrical cases, likewise were unknown, basically because it was only with the advent of rules of unlimited discovery that such litigation as the huge anti‑trust treble damage cases: The massive product liability actions, or the multiple aircraft accident cases became possible. Then, and only then, could the plaintiff class look into, comb through the files of class action corporate defendants, and extract therefrom the thousands of documents essential to the successful preparation and prosecution of such massive actions.

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