California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - JANUARY 2000
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - January 2000
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News Briefs
Former Unruh aide appointed to serve on State Bar board
Ardaiz, O'Leary named jurists of the year for '99
Judicial Administration fellowships
Public law section online library
Board meets Feb. 4-5
51.2 percent pass July '99 bar exam
Board hires search firm for new bar chief
Litigation section offers MCLE week in legal London
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Trials Digest
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From the President - Reciprocity reform: The future is now
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Opinion
For most Americans, our system is a failure
Ethics 2000: On target, or lost in space
Letters to the Editor
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Public Comment
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MCLE Self-Study
Of Counsel: Avoiding Conflicts
Self-Assessment Test
MCLE Calendar of Events
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Important Information About Your 2000 Membership Fee
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You Need to Know
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Appointments
Apply to serve on a bar committee
Bar seeks applicants for ABA delegates
Judge evaluation positions open
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Discipline
Ethics Byte - Warding off the foul tort in a new year
Bankruptcy attorney disbarred after abandoning clients
Attorney Discipline

OPINION

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For most Americans, our system is a failure
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By ESTHER F. LARDENT
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As someone who came to this country from a displaced persons camp in Europe following the devastation of the Second World War,

I cherish and admire our legal system. It is the best in the world. But it is not without its flaws.

If this nation is to truly embrace that noble goal etched on the United States Supreme Court, the goal of equal justice for all, then the means we have sought — increased funding for legal services and greatly enhanced pro bono assistance — are too modest. We need a true revolution, a profound sea change.

I believe that our justice system, despite its many strengths, is for most Americans a profound failure. Most individuals, certainly the poor, but even the majority of moderate income persons, do not have the resources, the awareness, or, for many, the desire to use the legal system to resolve disputes, even when there is clearly a remedy in the law available to them. The current system of justice, for many, is randomized, cumbersome, too slow, unfair, expensive, unpredictable, incomprehensible, mysterious, frightening.

In the past hundred years, a few things have changed for lawyers and judges, but for the most part, we still do our work the very same way. To serve our post-industrial society, we retain a pre-industrial legal system, one that was behind the times almost a century ago.

Some might say that that is the glory of the law, that we value precedent and preserve what is worthwhile in an ever-evolving, fast-changing world. But many of us would agree, I think, that society has outpaced the legal system and that profound change is needed to make the justice system meaningful in the future.

Esther F. LardentAnd the legal profession has tried to do so. We have assessed, we have tried to tame discovery, we have created rocket dockets, we have introduced innovations into the courtroom, we have established alternative methods for resolving disputes. But we have done so by building on and patching up existing systems and institutions, and that is not good enough.

We have developed courthouses of the future, complete with computers and video cameras. We have never asked ourselves whether, in today’s world, we need a courtroom at all.

Let me suggest a few possibilities we might consider if we were building a legal system from scratch:

Should we rethink what is appropriately justiciable through an adversarial process? Increasingly, the courts are becoming the point of last resort for a wide range of painful and complex personal disputes. Is the adversary system the best vehicle for resolving those disputes? Do we really think the best method for those seeking to divorce and settle family law-related issues is to do so in a public courtroom in front of a judge, well-versed in the law but not necessarily in human psychology?

Should we focus more on outcomes rather than process? We lawyers value due process, but what if we were to focus instead on how to make a decision fairer and better? We forget, at times, that due process does not guarantee fairness or good outcomes.

Can we de-legalize some problems without losing critical safeguards? For example, do we really believe that fender benders warrant a full-fledged, adversarial court hearing? Is that the best use of expensive public and private resources, or could we instead go to some type of risk pool system and take these cases out of our overburdened court system?

I know this view goes against the grain. For lawyers, due process and the adversarial system are holy and for lawyers who have personal legal services practices, proposals like these threaten their very livelihood. However, I believe that truly rethinking the justice system will ultimately benefit not only the public but lawyers as well.

Many lawyers have tired of the adversarial system — at least of its use in many contexts where it is counterproductive. Many don’t want to be gladiators; they want to be problem-solvers. A true ground-up change in the system, rather than a retrofit, would accomplish that.

If most divorces were taken out of the adversarial system, lawyers still would have a critically important role, as advisers and counselors, in drafting agreements and contracts. If there were less demand for lawyers to probate estates and fewer disgruntled clients who felt angry at having to employ lawyers to do so, lawyers could turn their skills to estate planning and preventive work, addressing issues before they turn into disputes.

And why not multidisciplinary practice? We know that clients — whether they are corporations or individuals — present problems that have non-legal dimensions. Providing satisfactory, long-term solutions for our clients may well mean solving a range of issues, many of them non-legal in nature.

Critics of a multidisciplinary approach rightfully express concern about inconsistent ethical requirements and about the potential loss of independent legal judgment. Those are real issues, but can’t we, as creative, clever attorneys, figure out workable solutions?

I know what I am preaching is revolutionary. But I believe that a revolution is needed. Why? Because the current system is not working and retrofits of that system are not working. The system is slow, unpredictable, too expensive, too complex. And for most Americans it is also inaccessible.

We have a judicial system that allegedly provides justice and a level playing field, but that is structured so that it only works for those who can afford an attorney — and these days, even most lawyers cannot afford a lawyer. For those with little or no resources, the system is a sham — promising much, but utterly out of reach.

We must do everything in our power to create a new justice system that works well, regardless of economic ability, that works sensibly for everyone, that responds to the problems of the present. To do so, we, as lawyers, must build a new system from the ground up. We must do so because justice is not optional.

Esther Lardent is president of the Pro Bono Institute in Washington, D.C. This column is excerpted from the Morrison Lecture she delivered at the State Bar’s annual meeting in October.