Dean's Address

Another lawyer in a different vein expressed his view, a view which unfortunately is not unique only to him, that the purpose of the legal system is to provide a fully adequate recovery for his client. Somehow, it seemed to me that the purpose was to provide equal justice under law to all parties that might come before the court.

Expense of pretrial discovery and preparation and long delays in the progress of litigation resolution and a growing belief that piecemeal or wholesale alternatives must replace the current system also are parts of this ominous cloud formation. Our press, including the non‑radical Wall Street Journal, and recently again. the AMA and others, have expressed or echoed dissatisfaction with or, in some instances, have called for radical overhaul of our system of litigation and dispute resolution. These may have caused, or may reflect the result of, a lessening of respect for our current legal system and its structure by some in various segments of the public. There even are a few who might agree with Shakespeare's one liner:

"The first thing we do,
let's kill all the lawyers.

The list might go on. The fact is for a number of reasons there are complaints leveled at our current system for delivery of justice. Even though some of those complaints may be unfounded, some are valid. The number and intensity of those complaints, both valid and invalid, are likely to grow.

So what?

At one of the Inns of Court during the 1971 American Bar Association convention in London, several Minnesota lawyers happened to have the good fortune of being seated across the dinner table from an English Lord High Justice. He asked us what we thought of the jury system in America. We thought it was an idle question, but to the Lord High justice it was not. Our reply was, as might be expected, one of enthusiastic support. He then related how England went into World War 11 with the jury system firmly in place. The dire circumstances of the War required that jury trials be abandoned during the War. With sadness he said one of the many English casualties of World War II was its jury system.

The extent of that casualty can be put in sharp perspective. Some of you may have had the good fortune of being able to accept Judge Fricker's 198 5 invitation to observe the courts in York, England, and there saw a jury selected in a criminal case. In England, a jury is still available in criminal cases. But not in civil cases. If you were there, you saw the jury selection in a case involving negligent homicide charges against one of eleven recovering, but temporarily fallen, alcoholics. The intoxicated defendant wrestled with the van driver which resulted in the van leaving the road, overturning and causing a death and numerous injuries. If you were there, you witnessed the fact that the twelve person jury that would decide this criminal case, was selected in less than five minutes, consuming just the time it took to read twelve names and have them find their way to the jury box.

In 1971 the Lord High Justice concluded his remarks regarding the demise of the jury system in England with the sober advice that if we wanted to preserve our jury system, we should defend it, fight for it, and find ways to improve it.

That advice was sound when given. It remains pertinent now, not only as to our jury system but as to our entire litigation system.

What will happen to this cloud which I see? If nothing is done, it may well be very destructive to our legal system. If we take action in a well reasoned, positive manner, what may now be perceived as an ominous cloud may have a silver lining. What happens is up to us.

Who is that "us"? It includes lawyers, judges, scholars plus those many others who are interested in doing what is necessary, in the words of the Lord High Justice, to defend, fight for and improve our litigation delivery system.

Is it suggested that we try to preserve the present legal system without change? No.

One of the great features of the common law has been its ability to change with time and circumstances. Changes should and will occur. But what those changes ought to be should be carefully considered, not for the benefit of the attorney, but as to how it may benefit those who will call upon or will be exposed to the litigation system in resolving their disputes.

Am I suggesting some specific quick fix or a specific long‑term change or program? Again, no. Innovations and solutions should emerge from ongoing groups of and dialogues among lawyers, judges, scholars, users of the legal system, legislators and any others who are interested in considering and seeking to implement those improvements and changes which may improve the legal system and benefit its users. Anything which might be an improvement should be proper for consideration. No immune, sacred cows should exist.

Undoubtedly, each of us could come up with a laundry list for consideration. Many items on such a list probably would be duplicated on the lists of many others, but there probably would be different items appearing on other lists. Some temporary fixes might be appropriate, but to be truly effective this exercise should look to long lasting improvements and the process itself should be permanent.

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