Dean's Address

I earlier have said that we should not oppose change, where indicated and necessary. We must anticipate and be prepared for some substantial changes in the coming decade. In the time when many of us here assembled have practiced, and certainly within the lifetimes of all of us, profound changes have taken place in the methods of practice. We had no Xerox or other types of copying machines. Secretaries made copies manually. We had no word processing equipment, automatic typewriters, para‑legals or other legal assistants. All this has already changed, and we now find ourselves buried in mountains of paperwork, thousands of documents extracted through discovery, computerized data not only for the retrieval of information consti­tuting evidence, but for such varied tasks as billing clients, advising the partners concerning the status of the business of the law firm, and producing and printing out the latest decisions. But all this appears to be just the beginning of a trend, which probably will come to a fruition in the 1980's, and which should have a profound impact upon both the form and substance of the practice of law.

We know that all our courts, state and federal, are far too crowded with litigation of all kinds. This is merely an inevitable result of the increasing pressures of a growing population, superimposed upon a society which long has been recognized as quick to resort to courts to resolve disputes. It will not be either adequate or acceptable for trial lawyers and their organized specialty groups to tolerate this situation as the nature of the beast." We are going to be forced to accept reforms, because the public is going to demand them. And, since the courts do not belong to the judges or to the lawyers, the public will force change upon us‑ change that will produce more expeditious handling of cases at reduced costs. The trial bar can render its greatest service to society by assisting in needed changes and by taking the lead in advocating reform which trial lawyers recognize as necessary. Who else is in a better position than trial lawyers to make such a determination?

It would be presumptuous for me to forecast with any degree of accuracy what direction these reforms may take. We do, however, have certain already cl ear road signs indicating where we may be heading. As an example, medical malpractice cases have increasingly been channeled into administrative fact‑finding board hearings, either as an alternative, or as a condition precedent to litigation. In only a few states have these requirements been held unconstitutional. There is a move afoot to force the resolution of product liability cases into non‑adversary proceedings, with the rules governing those structured along lines of traditional workers' compensation statutes. A commission has been appointed by the president of the American Bar Association, composed of both lawyers and laymen, with the assigned task of reviewing the entire field of tort law, and recommending changes and improvements. What an opportunity this affords this academy and other organized groups of trial lawyers for constructive input, for the benefit of society. We must be alert to these opportunities, and must be willing and in a position to bring our training and our expertise and experience to bear upon the investigation and its ultimate recommendation.

The same thing applies to procedural and technological developments and improvements. Video depositions have developed and have been approved during the last decade, as techniques have been refined. As litigation costs continue to increase, and they surely will, we can expect further refinement and development of such methods, even to the possible end of having entire trials presented to a jury by means of video tape. Certainly, the until now experimental use of telephone pretrial conferences, with neither the judge nor any counsel leaving his office, appears destined for widespread implementation. Computers will unquestionably play a vastly larger part in litigation in the future than in the past.

Whether we want it or not, change is coming. As advocates, we truly stand at the crossroads. In our present situation, we have the opportunity to move forward with constructive suggestions for changes, which will ease the increasing cost burdens of litigation and, at the same time, will preserve our adversary system. Trial lawyers are innovative of necessity, and, if we recognize and accept the fact that change is coming, we can take the lead. Thus, for example, we most certainly must come to grips with the troublesome problems of abuses of discovery, with examples of which each of us is intimately acquainted. Either the trial lawyers take the lead in suggesting constructive changes and improvements in this area, or we inevitably will be faced with changes which may not be in the best interests of justice. For we must not let what long has been an esteemed profession become no more than a craftsman's trade. And again, I stress that we must take the lead to preserve our jury system. In that connection I cannot improve upon the admonition of Senator Howell Heflin in his addresstto the annual convention of the Virginia Trial Lawyers Association:

"...Let us conduct our professional lives, our personal lives, and our professional organizations in such a manner as to bring credit upon our profession. Let us also take positive steps to see that the voices of the legal profession are present and heard in legislative bodies. Finally, let us be vigilant to insure that we preserve the image improving system of trial by jury."⁵

In conclusion, I would like to leave with you the most eloquent tribute to our special branch of the practice of law ‑ the pursuit of justice ‑ by quoting from Daniel Webster, who said:

"Justice is the great interest of man on Earth. It is the ligament which holds civilized beings and civilized nations together wherever her temple stands and so long is duly honored, there is a foundation for social security, general happiness, and as it the improvement and progress of our race. And whoever labors on this edifice with usefulness and distinction, whoever clears its foundations, strengthens its pillars, adorns its entablatures, or contributes to raise its august dome still higher in the skies, connects himself in name and fame, and character, with that which is and must be as durable as the frame of human society."⁶

FOOTNOTES

1. "Future Law‑ Lawyers Encounter The 21st Century," Bureau of National Affairs, 1979.

2. "The Third Branch," Vol. 12, No. 1, January, 1980.

3. Ibid

4. Reported at 70 FRD 79, el seq.

5. International Society of Barristers' Quarterly, Vol. 14, No. 2, April, 1979.

6. Remarks upon the death of Mr Justice Story, Before Suffolk Bar, Boston, September 12, 1845