Dean's Address

Take for example the effect of an absolute statute of repose on aviation litigation. The useful life of most commercial jet planes is well over 20 years. That is, when these planes are designed, manufactured and marketed, they are expected to continue to fly ‑ safely ‑ for 20 plus In fact, many of you fly on commercial aircraft which were placed years. in service prior to 1970. The average length of proposed absolute statutes of repose is 10 years. That is, after 10 years from the date of manufacture of a product, no claim can be brought against the manufacturer for negligent design or manufacture of the product ‑ regardless of how long the useful life of the product may be. In the case of commercial airplanes, this means that before even half the useful life of the plane has expired, all liability for negligent design or defective manufacture of the airplane would be extinguished. Notwithstanding the fact that the aircraft manufacturers, in marketing and selling their planes, benefit financially from the long useful life of their product, these manufacturers feel rationally and morally justified in proposing legislation which would absolutely extinguish liability after half the useful life for which their product was sold. More importantly, liability is cut off well prior to the time when many causes of actions based on defects in the product existing at time of manufacture or design could possibly have accrued.

How does one justify to the family of a 40‑year‑old businessman killed in an airline crash caused by faulty wiring design on a commercial aircraft manufactured in 1975 that‑ there is no claim against the manufacturer for his wrongful death in 1986? In addition, how does one explain that this outcome would have been different if the plane had been manufactured two years later, or the accident had occurred two years sooner? The fact is that there is no rational explanation.

Attempts by the trial bar to argue the illogic of the current attacks on the civil justice system are parried as being motivated by self‑interest and greed. Nevertheless, we must continue to speak. The trial bar better than anyone else other than the judiciary (who are not free to speak), knows the strengths and weaknesses of our civil justice system. We should not be intimidated or deterred from telling the public the facts. The public has always had a right to expect that we, as those most knowledgeable, will participate in the debate and demand that facts be produced and change be accomplished only in a reasonable and proper manner.

We must restore public confidence in the profession in order to protect public rights. We have no better opportunity to justify public confidence in lawyers than to take the lead in defending the public's rights against the ongoing assault which threatens to prevail. If we align ourselves with the defense of individual rights we can perform our historical duty.

Most lawyers have not fought this fight or performed their historical role to this point. They've been too busy managing their firms and making money, and have not meaningfully and personally participated. More importantly, many of us have become defensive and unnecessarily apologetic.

How many of us are willing to offer ourselves or encourage one of our partners or lawyers to run for election to the State Legislature where laws are made and the battle is being fought? It's not much different than our spouses saying "somebody has to take the garbage out" The somebody is us. We have to participate. There is no one else. It will make a difference. Remember, the cobweb is as strong as the steel fence until pressure is put on it. So too will the proposers of irrational change fail‑ like the cobweb ‑ when enough pressure and the logic of true public debate is fostered.

This year I turned 50years of age, and as a result, have begun to give increasing thought to the legacy I am leaving in the wake of my years not only to my children and family, but also to the younger members of my firm and to my profession. I wish them to know the law as I have known it ‑ an exciting profession dedicated to bettering the lives of others. I wish for them the respect and admiration of their peers. I hope to leave them an adversary system and trial by jury as I have known it ‑ fully intact. But for the system to survive, intellectual honesty coupled with progressive activism must be fostered. We cannot be intimidated, quieted, or worse ‑ falsely persuaded ‑ by the naysayers who with empty rhetoric and no facts predict economic doom unless we give up our common law rights of redress.

I urge young lawyers to realize that the long term success of a lawyer, and of the law, depends not on a short term accumulation of verdicts and fees, but on establishing a reputation for ethical and effective advocacy. Above all, I hope the legacy I pass on will be one of wholistic involvement with one's clients and community. A lawyer is more than a tradesman or gladiator for his client's cause. Ideally, he is a counselor and fiduciary, as ready to compromise or negotiate as to fight. His prime intent should be to maximize his client's rights, not his professional fees. Finally, he should be well‑rounded and fully involved in the community. Thus, his obligation extends beyond the case at hand, and re quires his positive participation in the public forum where juries and the law are themselves on trial. Our clients are not only individuals, partnerships, and corporations, but the adversary system itself. We owe no apologies for that fact because the bitter irony here is that the system, as inefficient as it may be, works, and works wonderfully. And while we are free, of course, to haphazardly tinker in our legislatures with a common law that has slowly and surely developed over hundreds of years, we do ourselves no favor by doing so on the massive scale that has been suggested . Of course, I am not so reactionary as to be opposed to change per se. The law is a living and breathing instrument and should change. But where change in the common law is necessary, the court of social justice courts will make it as inexorably as the sun rises. And while court made change is a slow process, it is ultimately quite responsive to societal needs. Any failure of the public to understand this fact is our failure. We are champions for the system as much as we are for our individual clients. We owe it to ourselves, our children, and the adversary system to act like it. No more than that is needed, but no less is required.

I would like to end this address with the sage wisdom of a former Past President of this illustrious organization. Frances Hare put it this way: "There is something different and special about the trial lawyer. You can tell it whenever you go in a courtroom and see any lawyer, old or young, good or bad, when his time comes to stand up and speak in behalf of his client, white or black, right or wrong. Then something happens that's unlike anything else on earth. It is like the touch of Midas that turns dust into gold, or the miracle of electricity that turns a few strips of metal into a glowing flame of light. There is a touch of everything wonderful in the advocacy of a lawyer for his client, in his effort to make the worst appear the better, or in his effort to defend the right. There is a dash of love in it, and there is a little of the effect of bourbon whiskey; there is a little sex appeal and more than a little magic. I have seen a shabby old lawyer that almost literally slept in the street come to court unshaved and disheveled rise before a jury that came to scoff, and remained to pray. Every man who has lived the life of a lawyer knows what I mean and knows there must be a source of this transformation of personality and power that touches an ordinary man with the pentecostal fire of an advocate."

Let us as seasoned trial advocates help our young lawyers light this fire.

Postscript: On April 23, 1987, the Florida Supreme Court voided as unconstitutional the legislatively imposed $450,000 cap on non-economic damages.