Saturday, September 10, 2016

Creating real confidence in the legal system begins with admitting its limitations

We urge our clients to have confidence in the legal system.

But do we lawyers share that confidence?

I don't pretend to speak for all lawyers, or even any group. But I can say that my most honest answer is yes... and no.

First, the 'yes' part.

I was already practicing law when Operation Greylord exploded into the headlines in the mid-1980s. For those too young to remember, 15 Cook County judges were convicted as a result of this extensive FBI undercover investigation. Greylord trials showed that cases were 'fixed' by willing judges, aided by court personnel, including clerks and deputy sheriffs as 'bagmen,' taking payoffs from corrupt lawyers.

To be honest, I miss the days when lawyers could more or less freely wander the corridors behind the courtrooms, visiting chambers, schmoozing. I really didn't know any judges then; most of my acquaintances were law clerks -- you know, kids my age. But just in visiting with the clerks I could learn a little law and, I suppose, feel more a part of the greater legal system.

Now, of course, chambers are mini-fortresses, the back corridors more moats now than highways. With limited exceptions---usually scheduled---a lawyer's penetration of the inner sanctum these days is typically viewed with suspicion, if not alarm, and generally supervised.

But the trade-off is that our judges today are above reproach. Greylord could have shattered confidence in our judicial system; instead, it had a cleansing effect. We lament the lack of wider public participation in the judicial election process, but there is indisputably more public scrutiny of judicial hopefuls now than there was a generation ago. There is also greater involvement and attention from the bar generally. The Alliance of Bar Associations for Judicial Screening did not exist during Greylord; it is an integral part of the judicial selection process now (if still sometimes observed more in the breach). It is both right and reasonable to believe wholeheartedly in the personal integrity and honesty of the members of our judiciary.

But... and herewith we start on the 'no' part... not all judges are equally gifted. Some are more learned in the law, some are more practical, some are more diligent than others. Some have many of these gifts; others seem to have very few. And not all cases are created equally. That makes a difference: The scholarly judge may be less able to accurately determine which witness is lying and which is telling the truth. The judge who adheres strictly to the rules might be manipulated by a lawyer intent on abusing discovery. The absence of personal corruption is by no means a guarantee that a judge will achieve an appropriate result in any given case.

Judges are human, too, you know, and therefore prone to err.

So when we urge clients to have faith in the system, we must also not over-promise what the system can do.

We can safely promise an honest result in a given case; we can not promise that the result will be appropriate.

So we have confidence in the system -- but we know results are unpredictable.

We have confidence in the system -- but we caution that litigation is often cripplingly expensive, even for the eventual 'winner.'

We have confidence in the system -- but not so much confidence that we do not encourage settlement. Or ADR.

I know many non-lawyers find this difficult to understand. Clients sometimes accuse us of not having the courage of our convictions. If we believe in the system, why would we recommend compromise? Are we being inconsistent? Are we trying to have things both ways?

Contrary to the suspicions of some, this is not post-modern, relativistic angst. In the middle of the 19th Century, a prominent Downstate lawyer had this advice for his colleagues:
Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.
The Downstate lawyer offering that advice? Abraham Lincoln.

Of course, there are some lawyers who think that the question of settlement should be reserved until the last tenth of a billable hour has been wrung from the case. That's incredibly wrong -- but that's a story for a different day.