Dean's Address

Along with the rapid growth in our numbers, there have been some dramatic changes in the structure of the legal profession. When I graduated from law school in 1949, 60 percent of all lawyers practiced alone. There has been a marked shift from the individual lawyer or small firm practice to practice in large firms so that now only 30 percent are solo practitioners. Firms of over 100 and 200 lawyers are common in our larger cities and firms of over 50 lawyers can be found even in many of our smaller cities. These large institutions often employ three times as many support personnel as lawyers and must be operated as big businesses with lawyers seen and seeing themselves more as economic units than as members of a learned profession.

The operations of the big law firms are very expensive and have little place for the relatively small economic problems of ordinary people. It is difficult to justify much billable time of even a junior associate on small matters when the starting salary of new associates in larger cities exceeds $40,000 a year. As a result, big firms can only afford to represent corporations or persons capable of paying substantial hourly rates or to handle cases with large fee potentials. The economics of these firms encourage ample staffing of cases, excessive motion and discovery practice and tend to make cases more complex and drawn out than they need to be.

Our changing law practice and increased numbers have also led to much more specialization. Even among litigators, specialization within a particular area‑malpractice, product liability, securities, antitrust‑and for only one side has generally become the rule. Given the growing complexity of the law, some specialization may be required. However, the combination of specialization and expanding numbers has fragmented and polarized the legal profession. We have in large measure lost our sense of belonging to a community of professionals with common bonds and perspectives. This, in turn, has diminished communication, cooperation and trust among lawyers, made internal discipline more difficult and made it much harder for the profession to reach a consensus on common ethical standards and needed reforms.

While the size and structure of the profession has been growing and changing, the number of lawsuits has been multiplying even more dramatically. To many who believe that the ability to enforce individual rights is fundamental to a free society, this indicates a need for more courts and judges. However, even though the ratio of lawyers to judges is higher in America than anywhere and we have proportionately fewer judges than any other western civilization, the reformers claim that more judges is not the answer. Rather they say that we must discourage lawsuits and limit court litigation to only serious disputes that cannot effectively be resolved elsewhere, blaming much of the mounting case load on an undisciplined public abetted by misguided or unscrupulous lawyers.

There is a particularly strong protective movement to limit the number of federal judges and insure their exclusive professional identity even if this requires abolishing diversity jurisdiction. The litigation growth in federal courts has been proportionately several times that in the state courts, due not only to the increasing volume of civil rights, environmental, securities, antitrust and other federal question litigation, but also to the rapid growth of large, complex, civil litigation. These big cases are usually filed in or removed to federal court if diversity is present in the belief that they can be better handled there. As a result, the view of a recent "litigation explosion" may be a distorted one, principally applicable to federal courts.

State courts in major metropolitan areas have chronic court congestion, but other state courts are generally not overburdened with long backlogs of cases. Many of us forget that most cases in our state courts involve potential recoveries of less than  $ 10, 000. In fact, over two‑thirds of the nation's lawsuits are handled in state courts of limited or specialized jurisdiction where, despite a high case volume, they are heard fairly promptly with few pending more than a year. In this litigation, lawyers spend little time on discovery or procedural problems, there is limited formal adversarial adjudication and much negotiating and mediating, resulting in the cost effective settlement of over 90 percent of these matters.

Of greater concern in most of our state civil courts than any litigation explosion is the fact that the poor and even the middle class may find it impossible to resolve their serious disputes because of unaffordably high legal costs. We have yet to recognize a right to counsel in civil cases even for our poorest citizens. Legal aid, which has seen their principal source of help, is in ever‑lessening supply. The ironic result is that while there is much concern about a litigation explosion, a large segment of our citizenry has limited access to justice and the protection of the law, except when they have a good damage claim that will provide a contingent fee or the rare claim for which the law provides a fee award.

This serious but less publicized problem was addressed in Time magazines last 1982 edition where an article entitled, "The Return of Unequal justice?" described the hard times of poverty lawyers resulting from deep budget trimmings by the Reagan Administration. The article made the point that while there are some efforts to fill the growing legal services gap by voluntary programs provided by law associations and large law firms, such efforts cannot hope to replace a publicly supported legal services program. At the same time, proposals to require every lawyer to donate a mandatory number of hours to pro bono work as a professional obligation have met with strong opposition.

There are some developments in the handling of ordinary disputes and the problems of individuals that are noteworthy. Neighborhood justice centers have proliferated in our larger urban areas over the last five years. Today there are nearly 200 various efforts to find a better solution to people's problems outside the traditional legal structure. These centers reflect the growing recognition that some disputes may be more effectively resolved without litigation and that what is needed are accessible forums where problems will be taken care of in the best way possible. How profoundly the legal profession may be affected by these new approaches is unknown, but sponsoring bar associations believe that the best interests of the bar and society require that the profession take the lead in their development.

Although we recognize that adversarial litigation isn't the best answer for all disputes and that we must look for appropriate new approaches, we must question the calls to remove certain cases from the courts, such as personal injury cases. Some of the reasons given for such removal are that personal Injury cases make up the greatest volume of our litigation, that they are usually tried to juries which take 40 percent more time than non‑jury trials, and that our fault system together with unpredictable and sometimes irresponsible juries makes for uneven and inequitable justice.

While personal injury cases constitute a large volume of our litigation, their removal from the courts is not supportable on the basis that they cannot be efficiently processed or are particularly costly or difficult for the courts to handle. These cases, which generally present relatively simple issues and usually involve limited discovery, are more suitable for out adversary system, if fairly and effectively handled, than many other types of civil cases in our courts. The small percentage that are not settled can usually be quickly tried before juries that have little difficulty understanding the evidence and deciding the issues.

Even the product liability or malpractice cases, although often more complex and time‑consuming than other personal injury cases, can be efficiently processed provided that they are handled by responsible lawyers, Such responsibility is encouraged in these cases both because plaintiffs counsel is on a contingent fee that restricts his trial preparation principally to essentials and because defense counsel is restrained by a knowledgeable, cost‑conscious insurance claims department.

The argument that the fault system is no longer acceptable for the handling of personal injury cases and that these cases should be processed administratively like workers' compensation cases in order to provide prompt and predictable relief is another subject for another day. Suffice it to say that while there may be persuasive arguments for removing the fault issue in certain categories of cases in order to provide for a more prompt and equivalent disposition of victims' claims, the proof is yet to be presented that a select class of administrators will provide the kind of justice and compensation to which our society, as represented by our juries, believes an injured person is entitled. The relatively small percentage of these cases that are actually tried does not seem to warrant a new administrative process, while many other cases, less suitable for adversarial adjudication, are left in the courts.

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