Dean's Address

While in England two years ago, I noted a set of reports covering a small wall in, a barrister's office. I inquired and my English friend informed me that those were the English reports since Charlemagne. I was appalled. I informed him that my state, the smallest in the union, has generated more reports.

The American lawyer and the American judge have the greatest power of any lawyers or judges in the world ‑power to help the people directly by making law and establishing precedent which will make their lives better.

The English system is an entirely different animal. Do we really want it?

[Maybe, we might say, the English should look to us, not we to them. And they are. For the past several years, they have been studying our system with a view toward changing to it.]

At least one study, in comparing English and American lawyers, concluded that lawyers in the United States were relatively more important than those in England and have a greater impact on society. The lawyer in America is more influential in business and government and more often relied upon as an advisor, advocate, and policy maker. Furthermore, litigation is more important in the United States than in England, and courts play a more decisive role as instruments of social control and change. (Q. Johnstone and D. Hopson, Lawyers and Their Work: An Analysis of the Legal Profession in the United States and England 5 80, 5 81 (1967).) According to the authors, a lack of vitality apparently pervades the English legal profession probably because of its preoccupation with maintaining the status quo. The result is a more defensive, less aggressive legal community which may be the result of its more static legal institutions. (Q. Johnstone and D. Hopson 11.) The disappearance of the British civil jury may have been yet another contributing factor.

In contrast to England, the jury system in the United States from the outset established its own independence from the crown by refusing to yield to the influence of appointed judges. The jury acted as a buffer between the bench and the bar so that the presence of the jury, important for its own function and power, also insulated the attorney and therefore his client from the vagaries of despotic judges.

Our jury system, both civil and criminal, as it developed, perpetuated not only its own independence, but also assured continued independence of both the judiciary and the practicing bar. I hear the jury system being assailed by unfriendly voices in high places. I hear the chipping of hammers and chisels at the cement which holds together our system of law as we know it. With its numbers diminished, its unanimity cast aside, I view the future of the jury trial with misgiving.

What precisely are the shortcomings of the jury system? Faced with delay and congested trial calendars, detractors claim that jury trials are inefficient‑ waste time, money, and human resources. Some critics view the civil jury as parochial, prejudiced, and unpredictable; incapable of deciding highly complex cases. Indeed, one legal scholar labelled the jury "cumbersome, dilatory, and expensive" but conceded that it was too entrenched in our legal system to be a fad. (Rendleman, "Chapters of the Civil jury." 65 Ky. L. Rev. 769, 770‑71 (1977) ‑) Courts themselves view the jury system with ambivalence. (Rendleman, 772.) Detractors of the jury system also stress that judges are intellectually better equipped to resolve disputes. judge made decisions would provide greater expertise and efficiency, and intellectual consistency could be maintained. These, the critics argue, are the preferable qualities in dispute resolution and should outweigh our persistent romantic attachment to a "transient, everchanging, ever‑inexperienced group of amateurs." (H. Kalven and H. Zeisel, The American Jury 3‑4 (1966).)

I don't intend to lapse into sentimentality and to equate the jury with perfection.

But let us look at the benefits of the jury system from all sides.

It is the one opportunity every citizen has to participate actively in an integral function of our government. It gives the juror the chance to see the system at work, to be a working part of it. It educates him. It impresses upon him the fact that he is a part of the government, that it is his government, that the words "of the people, by the people, and for the people" are not just words. It invigorates him, uplifts him, renews him, and his faith and understanding of our system. It brings to life for him the principles upon which our government is based‑fairness, equality, freedom.

It gives him faith in our system of justice; that it is not an elitist system, run by and for an exclusive fraternity of lawyers and judges whom he doesn't understand and isn't sure he trusts.

Is there a trial lawyer among us who has not experienced the strange alchemy of the jury; who has not wondered at the mysterious process by which the jury as a unit somehow becomes greater than the sum of all its parts? There is a magic in a jury which is not brought to it by any single member. It did not exist in the members, individually or collectively, before they came together as a jury, and will never exist again once they are disbanded. But while they function as a unit, it is there.

Haven't we all recognized, time and again, the extraordinary attention, the high purpose, the dedication, the spirit of the jury to do the light thing. And haven't we also seen the collective judgment and conscience of the jury to be beyond what would be expected from each of the individual members; and which time and again, will cut through hypocrisy, deception and artifact to find the truth.

Haven't we marveled at how readily a jury will recognize a liar?

Who better to decide the facts? A jaded, experienced judge who has heard it all before? Or a fresh jury who can bring their collective experience to bear on these facts, uncluttered by any other cases where similar or dissimilar facts would cloud the instant issue?

What's the first question asked of a potential juror? "Are you familiar with the facts of this case?" And what is the caveat most often repeated to them by the judge? "Don't judge this case on anything other than the evidence adduced in this courtroom!"

Can any judge ‑ any human ‑ divorce himself from the experiences of a thousand prior cases he has heard?

The very inexperience of a jury is its greatest asset. Its transience precludes rigidity of ideas. The jury is not as prone to a mind‑set or bias that sometimes characterizes trial judges who have seen it all before.

As judges of the facts, jurors bring a composite of learning, judgment and experience that, regardless of education, surpasses that of any given individual. And they have the vital tool of discussion. They have the opportunity to put the evidence  into the crucible of argument, exchange ideas and distill them down to a decision. A judge cannot argue with himself. A single person cannot talk himself out of preconceptions or misconceptions.

Juries educate judges to the needs of society. They pass through their courtrooms by the thousands. The judge is one court, one mind, one experience. With juries, the problems filter through thousands of minds. There is thus great input from the public.

Further, the jury is totally independent. It is not elected or appointed. It answers to no one but its own conscience. It is subject to no control. It is almost always anonymous.

Finally, the jury system, as I view it, imbues our judicial process with humanity so that the letter of the law remains tempered by the spirit of the law. I view the jury and its workings as a continuous and vibrant experiment in the resolution of human problems.

The decision‑making process requires an intricate balance of power between the judge, counsel, and the jury. The jury checks the powers of the judge through a verdict that represents contemporary community values. With the number of jury trials decreasing, particularly in federal courts, I feel that the bar must exercise greater vigilance than ever before to act as a direct check upon judicial power. I think, for example, that elimination of diversity jurisdiction from the federal courts will reduce ,the presence of the jury in these tribunals so dramatically (Higgonbotham, 58‑59) that the judicial predominance will be virtually guaranteed. The bar must become increasingly aware of its responsibility as the advocate of the public.

The role of the lawyer in making the jury system work cannot be overestimated. Throughout our history he has played a prominent and courageous part. Certainly, without our juries acting as buffers between the bench and the bar, our independence and with it our freedom to defend unpopular clients and causes would have long since disappeared. But it is the dogged, persevering trial lawyer who time and again has brought the issue to the jury, often at great personal sacrifice.

As an example of this heritage, consider the uneasy calm that permeated Boston in March 1770 on the eve of the Boston Massacre. British troops were garrisoned in the city and the friction between the army and the inhabitants, increasing steadily, finally broke into violence on the evening of March 5, 1770. A single sentry guarding the custom house became embroiled in an argument with a passerby. Six soldiers, a corporal, and a captain answered his call for help. The captain was John Preston, a forty‑year‑old Irishman with fifteen years in the commissioned service. A mini‑riot ensued; the soldiers fired, and three people died instantly; one shortly after the incident; and a fifth person a few days later.

Acting‑Governor Thomas Hutchinson and General Thomas Gage agreed that since Preston had not acted pursuant to orders from a civilian authority, he could only justify his actions by evidence of an actual attack. A grand jury indicted Preston and the eight soldiers in five separate indictments, and all of them went to prison. At the outset, neither Captain Preston nor his soldiers were able to find counsel to represent them. Finally Josiah Quincy and Robert Auchumuty agreed to represent the prisoners on the condition that John Adams also agree.

Quincy's, decision to represent the unpopular defendants prompted a letter from his father questioning his son's decision and warning him that the case would certainly endanger his son's reputation. In reply, Quincy defended his decision and reminded his father that "...these criminals, charged with murder are not yet legally proved guilty, and therefore, however criminal, are entitled, by the laws of God and man, to all legal counsel and aid."

After innumerable delays and a defense decision to sever Preston's trial from that of the soldiers, the proceedings began on October 24, 1770, and continued for five days. On the morning of October 30, 1770, the jury returned a verdict of not guilty probably because testimony failed to show whether Captain Preston had actually given the orders to fire. Acquittal for six of the eight soldiers followed in December 1770. Only two of the defendants were found guilty. The crime was manslaughter, still a capital offense, but a far cry from murder as originally charged in the indictments.

We have very little insight into the circumstances of John Adams' retainer in the case except that Adams never regretted defending the group that was so abhorrent to the colonists. As late as 1815, however, Adams still felt chastised by his countrymen for his part in the trial. (3 Legal Papers of John Adams 1‑31 (L. Wroth and H. Zobel ed. 1965); Kunstler, The Case For Courage 58 (1962).) In 1816, Adams wrote to a friend concerning his fee in Rex versus Preston. "A single guinea was put into my hand... for a retaining fee, ten guineas were offered on the first trial and eight at the second. The nineteen were all the fees I ever received for a whole year of distressing anxiety, and for thirteen or fourteen days of the hardest labor I ever went through.

The pages of our legal history are replete with similar courageous acts by lawyers. Frequently, however, their zeal is maligned or misinterpreted. Consider the charge by Chief Justice Burger that "all too often" overzealous advocates commit a variety of improprieties in the courtroom. He finds too many "adrenalin fueled lawyers cry out that theirs is a 'political trial"' with the unfortunate result that rules of evidence and ethical considerations have become irrelevant.

The American trial lawyer is fiercely independent. He can be abrasive, obnoxious, cantankerous, obstreperous. He is always argumentative. But he is also resourceful, inventive and imaginative. He creates great heat in the courtroom. But that heat generates light.

He is the champion of the little person‑the underdog. He is the protector of the rights, the guardian of the Grail, the keeper of the flame.

It is he who implements the Constitution to "keep the government off the back of the people" in the late justice Douglas' words.

He is often inclined to be technical, but Frankfurter has stated "the history of our freedom lies largely in the enforcement of procedural safeguards."

The American trial lawyer is the foot‑soldier of the legal profession. He engages in hand‑to‑hand combat in the trenches; the courtrooms of this country. He is misunderstood, mistrusted or even reviled by diverse elements, including members of his own profession. The saddest part of all is that the people whose cause he champions don't even realize that he is the protector of their rights, their freedoms. Because of the bad image of the trial lawyer, created by various forces in our society, some with good intention, some with bad, the person who needs him most, regards him with suspicion.

Yet, this stubborn foot‑soldier continues to slog through the mud, carrying on his lonely fight, often in the face of overwhelming odds.

Look at the great cases of our history ‑ Brown v. Board of Education, Escobedo v. Illinois and on and on. They were all cases of little people, without advantage, fighting against great odds.

The trial lawyer is always in the front lines of these pitched battles. And any military man will tell you that it is the infantryman who turns the tide of battle.

I feel there is a distinct correlation between the existence of an unfettered jury and an unintimidated trial bar. As trial lawyers, if we permit the demise of the civil jury system in the United States, I believe we will contribute to the demise of our own independence. In the words of Harry Sacher, "a country with an intimidated bar is a country whose liberties are in danger."

The continued use of juries in America as well as the existence of a bar independent from the bench are not wholly the result of historical accident or conservatism. Both arise from the basic ideological and philosophical premises upon which our political system and social contract are based. The differences in the American and British judicial systems are the products of different ideals and values which lie at the heart of each political system. It is no coincidence that in Britain the use of juries is all but nonexistent and at the same time the bar and bench are essentially a single entity, while in the United States juries remain and the bar is distinct and independent from the bench. For the two concepts, juries and an independent bar, are political institutions which serve to effectuate our society's political and social ideals and values.

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