Dean's Address

The Trial Lawyer and Lawyering: Personal Values and Perceptions

By Foster D. Arnett

Mr President, Gentlemen and Ladies, Friends:

ARTICLE V, SECTION III of the BY‑LAWS of the International Academy of Trial Lawyers defines my responsibilities on this occasion. it tells us that the Dean of the Academy shall address the annual meeting "... to enhance the influence, prestige and importance of advocacy... " These instructions are no more specific.

In responding to this charge, I have reviewed some of the Addresses delivered by my distinguished predecessors. Each Dean Emeritus has handled his assignment differently. Some have delivered scholarly and erudite remarks; others have been humorous and anecdotal in contributing to the legend and lore of the trial lawyer; still others have applied a searching, thoughtful, and incisive intellectual analysis to our craft and to the adversarial process. What then can I possibly say on this occasion which may be useful and might discharge, in some small measure, my responsibilities? I proceed upon the predicate that I know to whom I will be speaking; I know the quality of the outstanding lawyers in this audience and it would be arrogant and inappropriate for me to intrude upon eternity in delivering my remarks. I shan't purport to be profound but, hopefully, some of my impressions and perceptions may have some merit and value by sharing with you certain matters of mind and heart which I hold in respect to that lofty craft, that marvelous institution ‑ The Trial Bar.

The Bench ‑verbally and in writing ‑ continues to express its concern about a perceived change in the quality of the Trial Bar World class scholars have published learned papers in law reviews and treatises and journals to comment upon the adversarial justice system as they understand it. Outstanding trial practitioners speak and write about legal professionalism (and the lack thereof) and how different things were "then" as opposed to how they are "now." The media (print and electronic) have addressed the subject ad infinitum, ad nauseam and without surcease. The public at large has reacted by writing critically in op‑ed pages and by making legal malpractice litigation a new growth industry. Opinion surveys have often suggested that the public ranks lawyers on an approximate level of respect and confidence with which the people regard used car salesmen.

The Courts and Organized Bars about the country have created and staffed state disciplinary boards to ensure legal competence and care and character, and to enforce standards to deter personal and professional misconduct by lawyers. The ABA JOURNAL, speaking for the national Bar, has recently inquired of us, "What image do we (the lawyer) deserve... and have we earned it?" The academic equivalent of the ABA, the American Bar Foundation, has conducted demographic research in response to the burgeoning explosion (or "implosion") of the number of U.S. lawyers from approximately 221,000 in 1951 for a population of approximately 154,000,000 people, to approximately 805,000 lawyers next year for a population of approximately 250,000,000 people. Thus, the U.S. population over the past 39 years has increased approximately 62% while the lawyer population has increased approximately 263%. In 1951, we had one lawyer for every 695 citizens. In 1990, we will have one lawyer for every 310 Americans.

The old historic "Canons of Professional Ethics" were replaced by the "Code of Professional Responsibility" and later replaced by the "Model Rules of Professional Conduct." indeed, and as an illustrative example of professional and public concerns, recently the Dallas Bar Association has adopted "Guidelines of Professional Courtesy" and its "Lawyer's Creed" and the Cleveland Bar Association has published its "A Lawyer's Creed of Professionalism," which was in turn adopted by the TIPS Section of the ABA. And, as we know, many other Bars have been addressing these professional responsibility issues, i.e., the ABA Center for Professional Responsibility and, among others, the states of Rhode Island, Kentucky, Maryland, Virginia, Florida, Louisiana and Minnesota. Tragically and unfairly, I think, a major part of perceived professional transgressions is focused upon the Trial Bar rather than the Bar at large.

It is my personal and professional opinion that the profession is at a watershed and the remarks earlier made at this Annual Meeting by Past Presidents Beckham and Decof and by our brother Stewart, and others, seem to confirm that assessment. At the risk of being characterized as apocalyptic, it is my sense of the matter that we trial lawyers, singularly and collectively, had better get with it and correct these alleged abuses while there is still time to do so. I earnestly feel that we have the obligation, responsibility and duty to put the record aright and to take a leadership role in an essential crusade to clean our nest. To the extent we fail to take action we are putting the profession ‑ and particularly its trial practice arm ‑ at great risk I foresee that alternative dispute resolution modalities and administrative law innovations and decreasing access to jury trials and similar "initiatives" will continue to erode precious rights of the people whom we, as trial lawyers, are charged with protecting; and that this great Republic will continue to sustain irreparable losses of awesomely important rights which were conceived and generated by our forefathers who gave to our care "the greatest document ever devised by the mind of man."

If I am correct in my view of the matter, and if my rhetoricals have merit, what should or must we do to salvage the immensely valuable system of which you and I are servants, beneficiaries and stewards? Why has this plight settled upon us? Why is the trial Bar considered by many to be a pariah and an avaricious and venal aberration of our judicial system? Why do I (and, perhaps, a majority of you) suffer these concerns? What can we do to prevent our profession, and specifically our advocacy skills, from being lost in a bottomless chasm? If true, how did the legal profession lose its innocence? If true, how and why did our profession begin to manifest its dark image? How is it that the Bar, a national treasure, has become a target of opportunity? And, who or what institution(s) should take a leadership role in arresting the slide of our profession into what might be characterized as a devastating abyss?

It is my earnest opinion, particularly insofar as the trial branch of the profession is concerned, that our four great elite trial practice organizations, the International Academy of Trial Lawyers, the American College of Trial Lawyers, the International Society of Barristers, and the American Board of Trial Advocates, should join together and assume an ever so important leadership role and make a cheerful and dedicated commitment to address these perceptions and problems and to respond affirmatively and appropriately. As a matter of fact, these four great prestigious organizations may be the last, best hope for the judicial system as we know it; certainly, these four associations are really the only components of the Trial Bar which are constituted exclusively by Fellows and Advocates who have been invited to join and each of these organizations shares common goals. Those four trial lawyer organizations are perceived to be constituted of the elite practitioners of the Advocacy Bar and represent, without discrimination, the outstanding members of the Trial Bar without regard to whether they are "plaintiffs' lawyers" or "defendants' lawyers." Peopled as they are with expert and skilled trial and appellate advocates, we possess an abundance of the tools and skills peculiarly suited to use appropriate scalpels of our art which are necessary to achieve ultimate success in this mission. Accordingly, each of these highly respected associations is in a particularly effective posture in this matter to serve the public, the judicial system and the members of the Bar at large.

I think we need to revisit our roots and to rethink who we are and what we are about. I believe that we must regenerate within ourselves a renaissance of spirit and excellence and appreciation for the fact that the legal profession is the "proudest of the great learned professions and the poorest of trades." I think that the first step we should take is to motivate and dominate our minds and hearts and souls with a recognition and appreciation of the great privilege we enjoy as officers of the Courts who are specially sworn and commissioned to serve the judicial system and public. I believe that we disserve all our constituencies ‑ the public ,the judicial system and the Bar ‑ to the extent that our energies and efforts are dollar‑driven as opposed to being inspired to render high‑minded, quality professional service to our esteemed profession and thus to clients who invest us almost literally with their lives, their fortunes and, in some instances, with their sacred honor.

I am bemused by the fact that many emerging members of the Bar, whose total life history has been. encompassed by the sanctuaries of womb and home and the academic envelope, commence their first real income‑producing jobs (the practice of law) by receiving starting salaries equal to or in excess of the remuneration earned by distinguished professors who taught them in law school. What an irony it is that some of our neophyte colleagues commence the practice of law at wages in excess of compensation earned by prominent jurists whom they have just served as law clerks.

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