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.
 And 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. |
