Dean's Address

We have not heard the last of the dispute over this or the other contested proposals of the Model Rules because they bring into sharp focus the perceived conflict between the responsibility of the lawyer to pursue a client's cause zealously and the need to maintain good faith with society's legitimate concerns with justice. That perceived conflict simply cannot be dismissed with invocations about traditional roles, for today the social consequences of a trial lawyer's actions are too pervasive. Much litigation now impacts not only the parties before the court but the public as well. judicial decisions often formulate broad social policies or can have extensive economic and political impacts. The delivery and the cost of our goods and services, both public and private, can be and are significantly affected by litigation involving civil rights, product liability, and other consumer‑related claims, and by growing trends such as large punitive damage demands and awards.

In addition, the need to conserve an invaluable social resource‑the time of our courts‑has become imperative, requiring the good faith cooperation of all lawyers as officers of the court. Thus, it seems we have progressed into an era where lawyers have a clear responsibility to consider and protect where possible the interests of society as well as the interests of their clients. Admittedly such concerns about society may be in conflict with a total commitment to a client's cause, the historic role of lawyers in our common law system. However, if we are to retain and preserve this historic role we must be able to convince an increasingly skeptical society that it remains necessary and in the public interest today.

American lawyers have enjoyed the greatest freedom and independence of any lawyers in the world and as a result have played a very influential role in shaping our society. The question is, is this freedom now being abused in dispute resolution, and is there a growing public perception of trial lawyers as that portrayed by James Mason in the recent motion picture, "The Verdict." If this perception exists, it is important for us to correct it by conducting ourselves in such a way that we can convince any objective investigator that the trial bar takes only civil cases of merit, and while they pursue them as "zealous advocates," their efforts are performed honorably and in good faith and with cooperation and courtesy toward the court and other counsel.

Anyone who believes this type of professional conduct to be contrary to our role as zealous advocates in our adversary system is wrong. American law derives from the English common law, which emphasized Anglo‑Saxon notions of decency and fair play. England has worked out ways to control any damaging excesses or unnecessary gamesmanship. While they have vigorous advocacy, they maintain strict regulation of their barristers' conduct. Admittedly, this is much more difficult to do in our land where we do not have a select, concentrated and highly disciplined group of barristers with traditions developed over hundreds of years.

While our problem of maintaining high standards of professionalism and restraining unduly contentious or self‑serving lawyers is much greater, it must be done or our right to self‑discipline will be taken from us. Further, we risk having much of the litigation that is appropriate and proper for the courts removed to less satisfactory methods of resolution, and having trial counsel's handling of the litigation that remains policed by tight, but ineffective court controls.

It should be obvious that deception, harassment, delaying tactics or any unduly contentious gamesmanship is unacceptable and not an inherent part of the adversary process. We can't deny that litigation is tainted by efforts to achieve victory at all costs and by attempts to thwart a fair and expeditious trial. We have little trouble condemning the zealous advocacy of the defense in the medical malpractice action portrayed in, "The Verdict". However, most trial lawyers do not engage in such blatant activities and face ethical problems where the lines of propriety are more finely drawn.

While all legal organizations are, according to their charters, founded to assure the highest standards of both professional competence and ethical conduct, there has been much more emphasis on technical competence than on ethical conduct. We are continually receiving flyers advertising a seminar or program on trial techniques and dynamics, psychological concepts and persuasive skills, or effective verbal and nonverbal communication that influences juries and wins cases. just this week, for example, we could have attended a seminar at Lake Tahoe featuring, "Drama in the Court room:  The Many Roles of the Advocate," with lectures on the advocate as producer, director and actor by a producer, director and drama coach. An added attraction was a lecture by a preacher on "Persuasive Techniques from the Pulpit." This seems somehow removed from the concept that a trial is a truth‑finding process. If lawyers see themselves as actors playing roles in trials which they also produce and direct like plays and constantly emphasize the importance of persuasive techniques, are we surprised if the public sees us as mountebanks?

A lawyer would have great difficulty finding any similarly definitive instruction on professional ethics. This is understandable. We have trouble agreeing amongst ourselves on ethical conduct; and instruction on the need for integrity, civility, responsibility and good faith would not draw much of a crowd. Yet, we all know that a breakdown in our adherence to ethical rules and standards and courteous respect for courts and other counsel can result in serious damage to the public's confidence in our system.

These difficult issues concerning our professional values and performance require the involvement and careful consideration of all of us if we are to preserve our cherished and necessary role in a free society as unintimidated independent trial counsel. We must actively support the attempts being made to identify with greater clarity what is now responsible and appropriate, and what is not, in the representation of a client's cause.

We all know the ethical concept that a proper functioning of the adversary system depends upon the cooperation between lawyers and courts in utilizing procedures preserving the impartiality of the court and making the judicial process as prompt and just as possible, consistent with our obligation to represent our clients zealously within the framework of the law. Our challenge in this critical period of discontent and self‑analysis is to understand and redefine what this means in specific terms and circumstances and make it an actual, workable reality before it is too late.

This is the particular responsibility of the members of this Academy and all other trial lawyers who practice hard but straight and continue to believe in the merits of our present system.

No one should close an address to friends on such a portentious; note, particularly to trial lawyers with their natural skepticism for asserted truths. Admittedly, these are controversial and difficult issues for which many of us have had little interest and even less time. Certainly we could respond to the critics with the argument that they overstate the problems and that the public's view of courts and lawyers isn't much different today than it has always been, citing Shakespeare's, "The first thing we do, let's kill all the lawyers," Dickens' description of the meaningless judicial system that played interminably with Jarndyce v. Jarndyce, and Ambrose Bierce's definition of a lawsuit‑ "A machine which you go into as a pig and come out as a But, I respectfully submit that we should curb such adversarial instinct and together make the effort to realistically address our professional problems and responsibilities before others, much less qualified, do it for us.