Dean's Address

The Status of the Lawyer
and the Justice System

By Aaron S. Podhurst

I am a lucky man. I like what I do. I am proud to be a lawyer.

Trial lawyer Daniel Webster 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 as it is duly honored, there is a foundation for social security, general happiness, and 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 sky, connects himself in name and fame and character with that which is and must be as durable as the frame of human society."

I consider myself fortunate to be a trial lawyer, and I am proud to be associated with those who enter Webster's temple and strive mightily on behalf of their clients. What a noble undertaking!

Now is a time critical of lawyers and of the law, and particularly of trial lawyers and the adversary system. But it has always been this way and I suggest to you that it always will be. Criticism to the legal system is like fuel to the engine, milk to the newborn baby, and sunshine to the budding rose petal. We, as trial lawyers, cannot shy away from criticism; nor can we afford to ignore the winds of change.

Justice Holmes told us: "The law is not so much the result of logic as of the felt necessities of the times" It has also been said that the law is the lubricant of society. The trial advocate functions on the frontiers of society, advancing his perception of the felt necessities of the time ‑ helping the law accommodate change in the society it serves and lubricates. In other words, because of what we do, we are always on the cutting edge of change. We are ourselves constant critics. We should thus welcome the challenges of our day, because those challenges force self examination, and ultimately, betterment.

In this the bicentennial year of our Constitution, is is particularly appropriate to reflect upon and critically evaluate our profession, ourselves and the validity of current challenges to the adversary system. We can handle the criticism, evaluate proposed change in the light of justice Holmes admonition that the law reflects "the felt necessities of the time" and preserve the bulwark of our democracy ‑ the adversary system of justice. But to do these things, we must ensure that lawyers feel pride in themselves, in their profession and in the adversary system. 1, for one, know how much I owe for the opportunity to practice as a trial lawyer. But that opportunity comes with a price a price I am all too willing to pay, because it only requires that we, as mature trial lawyers, set an example for the younger lawyers who will be taking our places in the next generation. We owe it to ourselves, to our heritage, and to our love of the law to put something back. And we should be unafraid in this role to judge our performance as we would judge the conduct of a client's adversary.

Recently, the former Chief Justice of the Supreme Court of the United States¹ and the former Dean of one of the illustrious law schools in the country² have been critical of certain aspects of our profession. What makes this a significant phenomenon, different today than in the past, is the extent to which this critical view of lawyers is gaining acceptance in our society, and among our own brethren at large. Many of us have lost some of the pride in our profession that our predecessors felt. We see ourselves as part of a deteriorating profession. And because life teaches us that our image of ourselves mirrors what others see when judging us, we are in danger of being our own worst enemy. This self‑deprecation is therefore destructive. We need to stop apologizing for our profession. We must recognize that we have nothing to apologize for, that we welcome critical but constructive examination of the Bar and the adversary system as a positive thing.

Our response to these challenges must be positive, grounded as it should be in those noble goals which originally motivated us to want to become lawyers. In the vast majority of cases, it was not the appeal of a high income that fed our interest in this profession. To be sure, many things combined to nurture our desire to be lawyers ‑ among them, 1) a desire to lead; 2) a willingness to advocate sometimes unpopular causes; 3) a wish to perform a public service; 4) a fundamental belief in the rule of law and its intellectual challenge; and 5) a love of justice. I am confident that each of us was primarily motivated by one or more of these ideals of advocacy, leadership and justice. In my conversations today with young men and women just beginning their professional training, I find that they, too, share the same love of advocacy, leadership and justice that has historically drawn the best and the brightest to our profession.

Of course, all of us need to and want to make a comfortable living for ourselves and our families. But I suggest to you that the desire for financial gain, while important, is not our primary motivation. We know that with the talent and intelligence of the members of our profession we could make more money in much less time in business endeavors. In fact, it is still the belief in the capacity of the law to be an instrument of justice and social change that makes young people want to enter the profession.

It is one of the great tragedies of our time, therefore, that this vision is frequently lost somewhere during the first several years of practice. This is not the fault of the young lawyers. The responsibility lies, as it always has, with the senior members of the profession. Every young lawyer looks for a role model and has a tendency to adopt the ethics and values of that model. Unfortunately, too often today, the role model is so busy answering the telephone, worrying about the overhead, trying to increase billable hours, in short, trying to make the most money possible, that the result is an impression that these are the most important aspects of the practice. The old adage, "Do what I say, not what I do," is apt, because we all know it doesn't work; it is what we do that molds a young person's character.

We senior lawyers are not spending enough time training and indoctrinating our young lawyers in the art, value and ethic of the practice. This is wrong. We should do something about it. If we don't, too many young lawyers will be "turned off" because they will feel that they are not realizing the original goals that motivated them to become lawyers. And once having lost sight of these original goals, it is all too easy to become defensive and apologetic about the practice of law. Indeed, if these goals are not part of the reality of the practice, then perhaps apologia is justified, because then the law is no longer a temple, as Webster described it, but a business. So I suggest to you that to the extent public perception of our work is negative, that perception in no small part mirrors our own attitudes and activities. In this regard, we are wholly in control of our own fate. I have always believed that losers are people of limited vision, while winners can see over the rainbow. As lawyers with a proud heritage rooted in a living, working common law, we must embrace our original motivations and nurture their existence in our successors. By so casting our gaze skyward ‑ over the rainbow ‑ we can at once feel better about ourselves, and so alter our public reflection for the better.

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¹ Warren Burger's speech to American Bar Association
² Derek Bok's address at Harvard