Dean's Address

One particular case which is a good example of this situation is one in which the plaintiff was the regional manager of a large corporation suing a nationally known manufacturer of chemical products, including weed killers. The plaintiff sustained a complete respiratory arrest, which all knowledgeable experts agreed was caused by the absorption of the product he was using. Because of his corporate position, as opposed to a large corporate defendant, a decision was made to waive a jury, and try the case to a judge, It was not until long after the case had been tried and lost, when, under the undisputed evidence it should have been won, that plaintiffs counsel inadvertently learned that a totally unrelated medical experience of the judge's wife with respiratory arrest had so prejudiced the judge that he found for the defendant. There was absolutely no remedy available to the plaintiff, because the question was one of fact, not of law. How many times such an experience has been repeated can be only surmised.

Yet, those who propose to abandon the use of jurors in civil cases, urge that trials to the court would result in a substantial saving of time, considering the necessity of assembling a jury panel, impaneling the jury through voire dire, and the necessity of a continuous, unbroken trial by a jury as opposed to a trial proceeding at the convenience of the court, the parties and the witnesses. They also contend that many of the complex cases of the present era involve questions which are so technical as to be beyond the ability of the average juror even to follow or to comprehend; that service on a jury in a protracted case involves such a demand upon the time of the individual jurors that only the least qualified are willing to serve; that justice is thereby thwarted, rather than promoted. Such were the comments of the Chief Justice of the United States as recently as the mid‑year meeting of the American Bar Association in Chicago on February 3, 1980.

Is this true? Review your own experience with juries, whether representing plaintiffs or defendants. Would you not rather take your chances and rest your client's fate in the hands of his Deets, whether six or twelve, rather than in one judge? Yet, unless we are constantly alert and vigilant, those who propose the abolition of the jury system will achieve their objective, and we shall find ourselves faced with the demise of the jury system as we have known it. Again, let me quote from Justice Schaefer's comments at the St. Paul conference:

"The easy way is to go on as we are, tolerating in many jurisdictions the revolting spectacle of lawyers engaged in efforts to indoctrinate jurors in the course of the voire dire examination, and assuming that jurors follow the instructions of the court, even though we know better. '(A)ll experience hath shown' says the Declaration of Independence, 'that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.' The jury is an accustomed form, but the time is ripe to consider whether that form, valuable as it may be in criminal cases, has not outlived its usefulness in the world in which we live today."

Regardless of what we as trial lawyers may believe about the preservation of our jury system, comments such as these from respected members of the judiciary unquestionably will have an impact, not only upon the lay public, but also upon many members of the legal profession who are not engaged in trial practice, as well as students and professors of law. The reaction within the profession itself is aggravated by the fact the majority of today's law professors have had no exposure to private practice, particularly the trial of cases. How can these people, who have never been exposed to the experiences of advocacy be expected to instill in the fledgling law student any enthusiasm or interest to enter into the trial area of practice? In fact, it has been reliably reported that, in some of the larger law schools, increasing stress has been placed upon urging students to avoid trial practice, and turn to administrative procedures. Little wonder the graduates of these law schools have demonstrated a diminishing interest in our traditional trial system. This ever‑expanding group of neophyte lawyers can hardly be expected to understand, much less to oppose, these proposals being advanced to change our judicial system. Proposals frequently have come before the American Bar Association House of Delegates asking American Bar Association support for such changes as abolition of diversity jurisdiction, or mandatory arbitration. Because of the intervention and persuasion by trial lawyer members of the House, most of these proposals have been defeated, up until the present. However, unless all advocates, individually and as members of this Academy, the American College of Trial Lawyers, the International Society of Barristers, the Association of Trial Lawyers of America, and similar organizations, speak out whenever and wherever possible in favor of the preservation of our system of advocacy, changes such as those which I have mentioned slowly but surely will occur, until we see our judicial system a mere shell of its present self.

I do not mean to suggest that we, as advocates, should be opposed to any change which would represent an improvement, and which particularly would assist in reversing the recent trend of increasing cost of litigation, or in making access to our courts more readily available to larger middle‑class segments of our society. On the contrary, we must take the lead in resolving such problems as these in the public interest. But proposals for change merely for the sake of change must be resisted vigorously and with constant vigilance. We must anticipate that, as current proposals and additions thereto are repeatedly discussed, presented and promoted, they will gain increased credibility and acceptance, unless we can mount correspondingly increased credibility and acceptance of reasoned and logical opposition where necessary and appropriate.

Again, I repeat and stress what Assistant Attorney General Rosenburg said in the interview to which I previously have referred:

"Any time a lawyer is confronted with a choice, the lawyer will tend to stay with the standard traditional process rather than opt for something different. A lawyer is anxious to avoid any unexpected, bizarre or disastrous result on the principle to taking the known evil rather than an unknown danger."

"Any time a lawyer is confronted with a choice, the lawyer will tend to stay with the standard traditional process rather than opt for something different. A lawyer is anxious to avoid any unexpected, bizarre or disastrous result on the principle to taking the know evil rather than an unknown danger."

We must honestly confess that this is a true and correct statement. Trial lawyers do tend to stay with those procedures which are known, tested and tried. Likewise, we tend to stay with our traditional systems of charging of fees, either on a contingent basis, a fixed hourly charge, or a combination of the two. In this era of the huge, complex and protracted litigation, is the traditional hourly charge a system which is appropriate and fair? Some of our critics have charged that it is because of our strict adherence to this system that costs of litigation have become increasingly excessive.

Again, as Assistant Attorney General Rosenberg proposed, it may be time that we look into the question of "whether there are other basic modes for compensating lawyers than on a strict hour and fraction of an hour basis. If we can come up with some ideas that are fair and palatable and effective, we may be able to do something about cutting fees in the mammoth case down to size."

Obviously, this is a most challenging and provocative subject, one which calls for the best consideration and effort on the part of all of us, as advocates. We must realize, as an alternative, that we are quickly approaching the point where we may be pricing litigation out of the marketplace; that, unless we arrive at a suitable, equitable and livable arrangement for alternative charging of fees in massive litigation, the public may force upon us alternatives for resolution of disputes which are totally unacceptable, and which are not in the public interest.

Continue to Page 5