Dean's Address

Even though these scientific attempts to predict juror behavior are not claimed to be certain, their use is perceived by some as a powerful assault on the concept of trial by jury. If jurors are indeed creatures whose behavior is more or less predictably determined by social and psychological forces and not independent moral persons our fundamental belief in the rationality and responsibility of individuals that justifies trial by jury may no longer be valid.

The scientific pretesting of a case in a mock trial setting with a shadow jury matched as closely as possible to the real jury that the jury researchers feel is likely to be impaneled is considered even more important than jury selection. The researchers structure a simulated trial before a "focus group" to discuss issues and express views. With these experiments the facts and issues are identified which are most likely to be understood by the jury and fit the jurors' psychological needs. The lawyers then go to court with their case structured in the manner most likely to convince the type of jurors they are most likely to wind up with.

The same New York Times article claimed that any honest lawyer will admit that he doesn't want an impartial jury, but one that is going to find for his client; and it reported that lawyers who have used jury research acknowledged that it did indeed help them get juries inclined to favor their clients. These methods of scientific jury selection, while apparently legal, at least pose an ethical question for they clearly use expensive scientific techniques not equally available to all parties to aid in obtaining a biased jury.

There is a danger that as this method of jury selection and trial preparation becomes more prevalent, it may result in restrictions on the use of jury trials. Those parties who could afford such services may well conclude that another method of dispute resolution less subject to extraneous influences would be more desirable. Other parties who can't afford the services and courts committed to a search for truth and equal justice may seek to curtail jury trials if such methods are only available to one side.

Dissatisfaction among many corporate clients with jury trials and the traditional adversary means of resolving disputes is spurring new approaches in areas of non-litigation dispute resolution techniques. Many corporations are seeking ways not only to reduce the costs and delays of litigation, but to also achieve more responsible outcomes than they believe occur with unsophisticated or unsympathetic juries. Pressure from these clients will require lawyers to find other more flexible and expeditious forms of dispute resolution. The alleged goal is to reduce the enormous social and economic costs of legal conflict while preserving the rights of all parties.

Binding arbitration, the alternative favored by the Chief justice, has yet to generate strong support with corporations even with their disenchantment with jury trials. However, this is because of concerns about the objectivity and competence of the arbitrators who must be utilized to decide the dispute. This uncertainty has led to a new approach called rent‑a‑judge, which provides fast, private, efficient and final adjudication by a mutually satisfactory judge. A number of states now permit private judges to resolve disputes with binding decisions subject to a regular appeal, and retired judges and lawyers are founding companies to offer private judging services. This dispute mechanism is being increasingly utilized by experienced trial lawyers because it provides flexible rules and procedures, a mutually convenient schedule and a speedy decision from a well‑qualified judge chosen by the litigants.

There is also growing enthusiasm in the corporate world for so‑called mini‑trials as another form of private dispute processing. Here parties try to be cooperative rather than aggressively adversarial at least to the extent of each party 's willingness to discuss the dispute openly and in good faith. The mini‑trial utilizes an informal and abbreviated presentation of each side's "best case" for representatives of the parties with settlement authority. It is non‑binding, private, and inadmissible. A neutral third party observer may be present to advise if desired on how the case might be resolved if it went to trial. A mini‑trial is really nothing more than a carefully structured settlement process which has been effectively used by some responsible lawyers for years.

Many of the criticisms of our trial system and demands for alternative dispute mechanisms stem from a perception of contentious excesses in the adversary system and a lack of high ethical standards by many lawyers. There appears to be a widespread view that the legal profession and the courts are overly tolerant of lawyers who exploit the inherently contentious aspects of the adversary system to their own private advantage. All of the alternative dispute resolution processes attempt to translate the dispute into a problem that can be dealt with on its own terms, openly, simply and cooperatively and thereby avoid the cost and delay of our traditional adversarial process.

Dean Roscoe Pound's famous address, "Causes of Popular Dissatisfaction with the Administration of justice," warned in 1906 about the potential source of irritation that exists in the American exaggeration of contentious common law procedure calling it, "The Sporting Theory of justice." Chief Justice Burger often has addressed this subject with comments implying that unethical excesses in the guise of zealous advocacy are more the rule with American trial lawyers than the exception.

The Chief justice in 1976 at the Pound Revisited National Conference, after paraphrasing Dean Pound's comments about the sporting theory of justice being so rooted in our profession that we take it for granted as a fundamental legal tenet, went on to say that lawyers‑instead of searching for truth and justice‑often tend to seek private advantage, forgetting they are officers of the court with a monopoly on legal services that mandates duties to the public as well as to their clients. This critical statement of the Chief Justice regarding a lawyer's duty to the public as well as to his client anticipated the deep conflict that developed this past year in the legal profession as a result of the proposed Model Rules of Professional Conduct, prepared by the ABA Kutak Commission.

The emphasis of the Commission on the lawyer's responsibility to society as well as to his commitment to the client's cause brought a storm of protest from trial lawyers which, in turn, fostered some derisive comments on lawyers' uncertain ethics. A Newsday special report under the heading, "System Saturated with Unethical Lawyers," began with these comments: "At the recent mid‑year conference of the American Bar Association in San Francisco, 12,000 lawyers wrangled for days over a proposed revision of the ABA's 'Code of Ethics.' Many laymen may be surprised that lawyers have a code of ethics, but they do‑one designed for Eighteenth Century law practice‑when most lawyers worked on their own or in small firms, when legal fees were modest, and when honesty was more in fashion."

The sharp dispute on lawyers ethics arose because many trial lawyers believed that the new Model Rules would fundamentally change the role of the lawyer in American society. They reject the concept that lawyers have a general duty to do good for society that may override their specific duty to serve their clients. They contend that serving clients is the basic reason for being a lawyer and any exceptions to absolute loyalty to clients must be minimal and strictly construed. Large numbers of the trial bar specifically complained that the proposed change of the lawyer's role from a "zealous advocate" to only a "diligent spokesman" for his client's interest would be detrimental to the adversary system of dispute resolution.

At their mid‑winter meeting in New Orleans a few weeks ago, the ABA House of Delegates again addressed the controversial Commission proposals. The press widely reported their action in amending the proposed ethics code in order to maintain an almost unqualified confidentiality to clients even when the client is using the attorney in continuing criminal conspiracies unless it is in connection with crimes "likely to result in imminent death or substantial bodily harm." The extensive and almost exclusive media focus on this difficult and controversial issue of confidentiality added to the public suspicion about lawyers' apparent lack of public responsibility and concern for society's interests and, unfortunately, obscured the meritorious efforts of the Model Rules and the Delegates to make more coherent and definite our professional standards.

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