1 1 SPEECH 2 OF 3 JANET RENO 4 San Antonio, Texas 5 Thursday, January 30, 1997 6 Speech of Janet Reno at the Marriott Hotel, 711 7 East Riverwalk, San Antonio, Texas, at 1:30 p.m., 8 January 30, 1997, and the proceedings being taken down 9 by Stenotype by Marsha N. Yarberry and transcribed 10 under her direction. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 1 P R O C E E D I N G S 2 3 MS. RENO: Thank you, Justice. You've 4 always been there in some of the more difficult 5 moments in my life and some of the more challenging 6 moments, and I'm so proud to be here with you today. 7 I thank you all for inviting me. I am delighted to be 8 here with Bill Black, the justice attorney for the 9 Western District of Texas. And I appreciate your 10 efforts. 11 But you honor me by asking me to be here 12 because this is a subject very dear to my heart, and 13 it is one of the highest priorities of the Department 14 of Justice. Why, may you ask? Well, in 1962 I took 15 federal civil procedure from Roger Fisher. I don't 16 think I heard anything about negotiation. I heard 17 about litigation. 18 And I came home to Miami and became involved 19 in this practice representing landowners, in a small 20 condemnation practice, and I would look at these 21 people hold out for a higher settlement, go to trial, 22 and get less, and I thought, "There is a better way to 23 work it out." 24 I went off on my own in a small practice, 25 and I handled custody matters, and I watched the 3 1 bruised way that people came out of litigating custody 2 matters. I saw the scars, emotional and otherwise, 3 and I said, "There's got to be a better way to do 4 it." I litigated personal injury cases and saw them 5 come back, not really resolved, costs eating up a lot 6 of the verdict. 7 And then, as Ben points out, in 1978 I 8 became a prosecutor, and I know that we were 9 negotiating over 90 percent of the cases, and I know 10 that the people negotiating them were trial lawyers 11 who had no training in negotiation, didn't understand 12 how to do it, and it all seemed wrong to me. 13 At the time I reached out to see if there 14 were people who could train my young lawyers, and 15 there weren't too many around. We tried. But during 16 all of this I realized that advocacy and pliability 17 are extraordinarily important. There were people that 18 would try to run over me, and I litigated, and I won, 19 and they stopped running over me. But still I kept 20 looking for ways to resolve and solve the problem 21 rather than just win or lose. 22 As I went through these years Roger Fisher 23 stopped talking about the Federal Rules of Civil 24 Procedure and started talking about negotiation. I 25 don't think he would remember me, but that man has 4 1 been an influence on me because I kept thinking, 2 "There has got to be a better way to do it." Sandy 3 Dalenburg from the house judiciary committee started 4 talking about dispute settlement programs that would 5 get cases out of the courts and resolve the problem 6 rather than provide for a win or a loss. 7 And then about ten years ago I started 8 hearing about your work and what you have done, and 9 all I can say is, you, as far as I am concerned, are 10 the leaders of the bar. I cannot thank you enough for 11 what you have done in these ten years, because what 12 you have done by leading the way is to show others 13 that dispute resolution programs can work, that we can 14 solve problems rather than just win or lose. 15 You have shown so many people that there are 16 alternatives to litigation, that they can be 17 successful. You have spread the word. You have made 18 people believers. You have made lawyers problem 19 solvers. You have made lawyers peacemakers. And I 20 think that you are a little lower than the angel. 21 And because of you I came to Washington 22 committed to negotiation and to mediation. I realized 23 that there would be other appropriate dispute 24 resolution programs, and I wanted the department to 25 explore every one, and I wanted attention paid to 5 1 problem solving. I didn't want our components coming 2 into town and suing without sitting down first and 3 saying, "This is what the law requires. This is the 4 reason it requires it. This is how we can comply and 5 we'll help you comply. If you have questions, let us 6 work with you. But if you thumb your nose at us we're 7 going to litigate with you until you reach the 8 understanding that we're here to try to solve a 9 problem and work it out, whether it be environmental 10 hazard, a civil rights violation, some 11 discrimination." And it just is marvelous to watch 12 people respond, because at first he said it is the 13 Department of Justice's account. 14 Now bankers, instead of grinning to people 15 when we talk about lending discrimination, say, "How 16 can we work with you," to let people understand that 17 there may be inadvertent discrimination and if we work 18 together we can bear it out and ensure that for all 19 Americans they can have equal opportunity to own their 20 own home. 21 It is wonderful when we go to a state to 22 enforce the Civil Rights Institutionalized Persons Act 23 and the governor and the attorney general, instead of 24 saying, "Oh, my goodness. Here comes the Civil Rights 25 Division," welcomes us and says instead, "How can we 6 1 sit down and work out this problem together?" It's 2 problem solving. And you have made it possible as 3 more of an accepted function than ever before in 4 litigation in this country. 5 But at the same time I want the lawyers with 6 the Department of Justice to be prepared to litigate. 7 But what have we done? The first thing I said is I 8 want to make sure that our lawyers are trained to be 9 negotiators. We are training our attorneys to be 10 better negotiators by recognizing that we must address 11 the interest of the parties that lie behind the 12 positions they take. 13 We are teaching our litigators to be problem 14 solvers by asking them to step into the shoes of the 15 other party in order to better understand why they 16 take positions against us. We are asking our lawyers 17 to be more creative in finding solutions to disputes 18 that may not be apparent to any party unless and until 19 all the parties engage in candid bargaining over their 20 real interests and their real needs. 21 In addition, we are asking our attorneys to 22 be candid with themselves and with their client 23 agencies by evaluating that case carefully to 24 determine its true value. And through their general 25 counsels we are asking our client agencies, the 7 1 various agencies in the federal government, to look at 2 a case before they bring it to us, to evaluate it 3 carefully, to understand that if they take steps to 4 resolve it there and negotiate it at that point, 5 monies can be saved down the road, and it is exciting 6 to see how that effort is catching hold. At first 7 people are somewhat dubious. 8 But we're also exploring how we might 9 provide incentives. I came to Washington to discover 10 that a client agency oftentimes has a judgement paid 11 out of a judgment fund rather than its regular 12 appropriation. It doesn't hurt. So there's not that 13 much of an incentive. Let the Justice Department 14 worry about it. How can we work together to develop 15 incentives for people to focus on the issue early on, 16 resolve it early on, and resolve the problem that 17 created the issue in the first place? 18 Unless we have made realistic assessments of 19 what really is the best alternative of the negotiated 20 agreement, we should not go to trial. But unless we 21 make realistic assessments, we are not going to be 22 able to negotiate through an informed procedure. 23 Smart, tough, interspace negotiation is more likely to 24 produce lasting results. 25 When we focus on a solution to the dispute 8 1 instead of engaging in fault finding or blaming, 2 someone else is creating the problem in the first 3 place, we have taken a very major step in becoming 4 better problem solvers. When we engage in active 5 listening instead of reflexively responding to the 6 other side, we create a much better environment for 7 reaching understanding. 8 When our opponent makes an angry statement 9 and we refrain these hard words into a positive 10 excursion, we then have started to look at their 11 thoughts to understand and work together for a 12 solution that all can support and that everyone 13 benefits from. And from personal experience I can 14 assure you that these skills work just as effectively 15 in your own workplace as they do when you engage an 16 opposing party in settlement negotiations. 17 I hope that you all will someday be able 18 each to visit the conference room of the attorney 19 general. It is a very imposing room with beautiful 20 murals, nice at the head of the table. The Civil 21 Rights Division will be on one side, the Civil 22 Division on the other, the Solicitor General's Office 23 down at the end. There may be three different views 24 or five different views, all strongly held by 25 splendid, wonderful lawyers. 9 1 It is so fascinating if we take the time to 2 hear them out. And then when I discover that one side 3 isn't listening, make sure that they're listening. 4 And if I've got the time and they talk it out, we 5 reach such a much better position representing the 6 federal government. And, again, it is you and your 7 colleagues and others who have taught me the skills of 8 listening, of mediating, of negotiating, of solving a 9 problem rather than winning a war. 10 At the same time we must recognize that 11 regardless of how skillful we may be as negotiators, 12 there will be times when negotiating one on one with 13 the other side will not work. There may be too much 14 hostility or distrust, anger or suspicion between the 15 parties. The disputes may have lasted so long or been 16 so costly that negotiating one on one with the other 17 side is a guarantee for gridlock. 18 That's when mediation has become extremely 19 valuable to the department as a technique for avoiding 20 the tribulations of trials. Mediation is valuable 21 because it directly involves the parties to a dispute 22 as well as their attorneys, and it creates an attitude 23 of cooperation in an otherwise adversarial 24 environment. 25 To some here it's like preaching to the 10 1 choir. I don't have to tell you why what you do is so 2 important. To others who are here today thinking 3 about pursuing dispute resolution more far into the 4 future, all I can tell you is that it has made such a 5 wonderful difference in the very brief time in the 6 Department of Justice. If you talk to the young 7 people who I had a chance to hear from earlier today, 8 they are learning what a difference they can make in 9 their school in terms of conflict resolution. 10 So we have focused on alternative dispute 11 resolutions, particularly mediation. Peter 12 Steenland is my senior counsel for alternative dispute 13 resolution, and I have raised it up to that level. 14 Peter is a very experienced advocate with the 15 Department of Justice, but he has been through so many 16 cases that he knows how important ADR is. 17 And I've asked Peter to make sure that the 18 lawyers for the Department of Justice are trained in 19 ADR techniques. We are taking it area by area across 20 the country so the assistant United States attorneys 21 will all be trained. Peter has taken the extra step 22 of bringing the client agency in on occasion to be 23 trained with the lawyers, improving our opportunity to 24 resolve disputes even short of filing lawsuits. 25 At the department we have spent almost 11 1 $400,000 during the past year to retain the services 2 of mediators and other dispute resolution providers. 3 We are working closely with the courts, both at the 4 trial and appellate levels, to take advantage of their 5 case settlement programs. 6 I meet on a quarterly basis with the 7 executive committee of the judicial conference, and 8 this is one of the areas that we regularly address. 9 We strongly support these court case settlement 10 programs. In one year, using both court sponsored 11 mediation and private providers, we have tripled the 12 number of cases in dispute resolution from less than 13 400 to more than 1,200. Preliminary reports indicate 14 that more than half of these cases have resulted in 15 settlement, and even when the case has not been fully 16 settled some benefits have been paying in terms of 17 reducing discovery, dismissing issues, and simplifying 18 the litigation. We are making progress, for it's 19 changing the culture at the Department of Justice at 20 the federal government level. 21 In many cases mediation is cheaper and 22 faster than litigation; it produces better results 23 than the litigation. Let me give you an example where 24 the federal government has used mediation to obtain a 25 settlement of a dispute that truly involves problem 12 1 solving. Recently the Air Force had a contract 2 dispute with a corporation performing maintenance at a 3 certain Air Force base. There was one year to go on 4 the contract and the question of renewal unresolved. 5 The maintenance firm filed ten claims for additional 6 payments totaling more than a half a million dollars 7 that they asserted were due under the contract. All 8 claims were denied by the contracting officer, and the 9 matter proceeded to an administrative tribunal. 10 Before the tribunal ruled, the courts agreed 11 to mediation. After several hours of hard work, the 12 claims were settled for 45 cents on the dollar, 13 including interest and attorneys' fees, and the 14 parties agreed to modify the contract by revising the 15 ambiguous provision that had provoked the dispute in 16 the first place. Mediation and a skillful third party 17 helped the parties turn a nasty dispute into a sound, 18 working relationship for the future. 19 Other similar stories could be told in the 20 context of disputes over employment and workplace 21 issues, tax disputes, and environmental claims. We 22 use mediation when the United States is a plaintiff in 23 enforcement cases and when we are the defendant. We 24 use mediation both to settle cases and to avoid filing 25 them in the first place. 13 1 When parties remain adversarial to each 2 other, we miss the opportunity to resolve disputes 3 that could benefit both parties, and the Justice 4 Department does not want to be in that position. Of 5 course, the Department of Justice sees only a small 6 percentage of all the disputes involving the federal 7 government. 8 Last year Congress went a step further and 9 enacted the Administrative Dispute Resolution Act to 10 promote greater use of ADR throughout the federal 11 government. This law now permanently authorizes 12 federal agencies to use dispute resolution to resolve 13 disputes before they reach the courts. 14 I am pleased that the Department of Justice 15 took the lead in supporting this litigation 16 legislation on behalf of the administration, and now 17 we are working very closely with the other federal 18 agencies, through their general counsel and otherwise, 19 to ensure that they take maximum advantage of these 20 provisions. 21 I cannot think of a better example of good 22 government than providing a process so that citizens 23 who have disputes with their government can sit down 24 at a table with a responsible official and a 25 third-party neutral to negotiate a fair resolution of 14 1 their disputes. But we have much, much, much to do. 2 We haven't trained all of our attorneys yet. We have 3 some real callous attorneys who just like to try 4 cases. 5 And they tell me something very 6 interesting. They said, "Ms. Reno, you don't 7 understand. It's easier to try the case than to go up 8 through all the levels of the department to get 9 approval for the settlement." So we're trying to 10 change that to make sure that people understand that 11 if we trust them to try the case, we trust them to 12 settle the case in the best interest of the government 13 and the people of the United States. 14 But we still have some real callous 15 attorneys. And so whenever anybody will indicate to 16 me who the real callous attorney is, I will push them 17 a little bit. We try to do it gently so that people 18 will know that we are being supportive, but we want to 19 do everything we can to make sure that the culture of 20 dispute resolution is part and parcel of that 21 magnificent institution, the Department of Justice. 22 But we have still much to do. 23 I talked to you about those cases, those 90 24 percent of the cases that we negotiated. Most 25 cases -- most criminal cases in this country, both at 15 1 the state and federal level, have some degree of 2 negotiation. But plea bargaining is a bad word. Plea 3 bargaining done only to clear crowded calendars and to 4 handle overwhelming caseloads is wrong, and all of us 5 have a special responsibility, even if we do not 6 practice in the criminal area, to make sure that our 7 criminal courts of this nation have the wherewithal, 8 the resources, the personnel, the judges, the 9 prosecutors, and the public defenders to ensure that 10 everybody has the right to a fair trial. 11 But at the same time it is very, very 12 frustrating to see a young lawyer prosecute a case, 13 get a conviction, and think he has won the battle when 14 he sees the guy go off to prison for five years, 15 knowing full well that he will only serve 20 percent 16 of the sentence because we don't have enough prison 17 cells to house people for the length of time the 18 courts are sentencing. 19 It is very frustrating to see that person go 20 off to prison with a drug problem and not get drug 21 treatment and end up back out on the streets, the same 22 problem unsolved, but the prosecutor thought he or she 23 won. It is equally as frustrating to see the public 24 defender feel that he has won when he prevails on a 25 motion to dismiss or a motion to suppress and his 16 1 client, a crack addict, walks out of the courtroom 2 allegedly a free man but in worse bondage through 3 crack than any prison will ever create for him, and 4 the public defender does nothing to address the crack 5 problem that caused the problem in the first place. 6 That is why in Dade County and now in the 7 Department of Justice we are trying to focus on drug 8 courts which provide a carrot and stick approach and 9 say to nonviolent first offenders charged with 10 possession of a small amount of drugs, "We will work 11 with you in treatment and job training replacement, 12 and we'll get you off on the right foot. And if you 13 stay clean, we'll help you and support you along the 14 way, but you face a certain sanction if you come back 15 with a positive test for drugs." 16 It is problem solving. It is working out 17 problems, negotiating problems or mediating problems 18 to solve the problem rather than to let it perpetuate 19 itself through the merry-go-round of our criminal 20 courts that see people come back again and again and 21 again because the legal system hasn't focused on 22 solving the problem. It's only focused on guilt or 23 innocence. 24 We need your help to learn more about how we 25 use the process of negotiation and mediation in the 17 1 criminal justice system. We need your help in making 2 sure that we do not have to plea bargain because of 3 crowded calendars but that we can negotiate the right 4 way to solve the problem in the interest of all the 5 American people. 6 I think the legal profession and those 7 involved in dispute resolution can do so much to ease 8 the tensions in the workplace of America. Employing 9 assistance professionals will tell you that the 10 workplace is becoming a more violent place. Tensions 11 are enhanced between employer and employees. People 12 are concerned about their jobs. They wonder what 13 their future is. They see a rapidly changing 14 technology make their jobs become obsolete, and the 15 pressures are on everyone. You see the results. You 16 see tension when somebody tries to discipline an 17 employee or you see the person say, "Well, it's too 18 hard to make the discipline stick so I'm just going to 19 promote them, then I'm not going to worry about it, 20 and I'm going to give them an excellent evaluation 21 every time the evaluation comes up." 22 Lawyers as problem solving experts in the 23 area of employer/employee relations can do so much in 24 bringing the employer and employee together to solve 25 the problems, to work them out, to understand each 18 1 other, and they can also advise clients on how to 2 build a better record so that we can promote 3 excellence and that we can correct failure whenever 4 appropriate and that we can do it fairly, yet firmly, 5 with regard to the due process of all concerned. 6 And I'm so pleased to hear from Jack Hannah 7 that you're doing another -- that you're undertaking 8 another initiative, because I think one of our great 9 challenges is how we use the information agent in 10 resolving disputes. All of you have probably been 11 involved in dispute resolution, or most of you feel 12 like I do, that it's much better to be in the same 13 room with the person that you're negotiating with 14 rather than on the telephone or certainly over a video 15 screen. 16 But the world of cyberspace will bring us 17 together as never before, and we've got to learn how 18 to use this marvelous instrument, this marvelous tool 19 to resolve conflict. If we don't watch out, that 20 marvelous instrument that provides such an opportunity 21 for education, for knowledge, for communication 22 worldwide can also become a tool for spreading hate 23 and dissension and conflict. Let us make sure that we 24 use this marvelous instrument for problem solving and 25 for peacemaking and not for dissension. 19 1 Before I came to Washington, not only did I 2 focus on the courts, but I focused on the streets of 3 Miami, a community I love, and beginning in 1984 I saw 4 a dramatic increase in youth violence. I saw young 5 people resolving conflicts, not with fists but with 6 knives and guns, and I saw the results and increased 7 victimization of our young people. 8 At the same time I began to see awkward 9 steps being taken, a teacher who developed a peer 10 mediation program. She didn't know exactly what she 11 was doing, but she knew she was on the right track. A 12 key club would come together and develop the peer 13 mediation program. They didn't know exactly how to do 14 it, but they were on the right track. 15 There was such hope in what these young 16 people were doing and what these teachers were doing, 17 and we were beginning to see the results across the 18 nation. This afternoon I had a wonderful opportunity 19 to meet with young students from Churchill High School 20 and with representatives of the ABA who have helped 21 spread the word that dispute resolution is not just a 22 way to avoid the courtroom, that dispute resolution is 23 not just a tool for lawyers, but dispute resolution, 24 properly done, is a tool for every single American. 25 And I hope you take some time to talk to 20 1 these young people because both their teachers and the 2 people who train them will tell you that young people 3 are probably better at mediating and resolving 4 disputes than anybody else because they don't think 5 they know it all. It was a wonderful opportunity for 6 me to hear the enthusiasm with which they were 7 approaching the effort. 8 But I want to tell you how proud I am of the 9 bar, of the young lawyers section, the section on 10 dispute resolution, everybody coming together to reach 11 out and spread the word. This is what lawyering is 12 all about. It's not just about making money. It's 13 not just about what firm you're in. It's not just 14 about what kind of a hobby you're doing. It's how you 15 help other people solve their problems. And to hear 16 the young people talk about the skills that they have 17 developed because of the outreach of the bar 18 association is a great tribute to all the lawyers 19 here. 20 I want, though, to look beyond and to think 21 about what more we can do. I want us to look to the 22 future of lawyers as problem solvers, as peacemakers, 23 and as advocates. We can never stop being advocates. 24 We can never stop being prepared to go to court to 25 defend the rights that we hold dear, because the 21 1 moment we do, they'll try to run over us and we won't 2 be prepared. 3 But we can all learn from what you have 4 started in dispute resolution in this country, and we 5 can make sure, through your efforts, that every lawyer 6 has the opportunity in law school to know the skill. 7 Law schools are teaching advocacy. They're teaching 8 trial practice. Let's make sure that every law school 9 has course work in negotiation and alternative dispute 10 resolution. Let us make sure that every teacher in 11 this country learns the skills of negotiation and 12 mediation and problem solving in school as they regain 13 their teacher's certificate and it is enhanced as they 14 go to their school. Let us make sure that every 15 community police officer who is working to build trust 16 in the community understands and is talented in the 17 skills of conflict resolution. 18 And lawyers can do it. Just think of what 19 would happen if every lawyer in this room went back to 20 their community and reached out to make sure that a 21 neighborhood, a school, was on its way, 22 trainer/trainee, the trainee training others, the 23 domino effect, until what you have done for a legal 24 profession is spread across this land. 25 And let us think about community justice 22 1 where the judge may be the arbitrator in terms of 2 solving the problem as opposed to the person who calls 3 it one way or the other. Let us think about community 4 justice where lawyers volunteer their time in 5 communities of children and family at risk to solve 6 problems rather than to litigate them. 7 It's going to take the lawyer because in 8 some schools you will find a situation, as you work 9 with the young person training them, they will explain 10 to you that their mother is having a problem with the 11 landlord. You'll take it upon yourself to inquire, 12 and she will say, "He won't fix any of the plumbing. 13 He won't do anything. He just tells me he's going to 14 kick me out if I don't pay my rent, and I don't know 15 what to do, and I can't afford a lawyer." 16 You go to the man. He thumbs his nose at 17 you. You get prepared to sue him or you sue him, and 18 he understands you mean business, and then he starts 19 talking to you, and he says, "Look, I inherited this 20 from my father. I don't have enough money to make an 21 investment. I don't know what to do." 22 And the good lawyer/problem solver is going 23 to be the one that works with HUD, with community 24 development grant monies, with other sources, and say, 25 "Why don't you go check on this, this, and this. 23 1 This may be a source of some investment because what 2 everybody is trying to do is to ensure affordable 3 housing." 4 The lawyer who is both the advocate and the 5 informed problem solver is what we need today, and it 6 is what is represented in this room. The lawyer who 7 comes to a community and finds an environmental hazard 8 that might need changed in the town that is more 9 affluent but no one knows in this particular 10 neighborhood where to go to get this environmental 11 hazard corrected, and even if they do, doors are 12 slammed in their face, that lawyer is, again, the 13 advocate. But after he catches or she catches 14 people's attention by their advocacy, then they switch 15 to the problem solving and to the peacemaking mode, 16 and they start saying, "Here is the technology. Here 17 is what we need. These are the experts. This is what 18 we can do to solve the problem, to reduce the hazard, 19 to make sure it never happens again, and to benefit 20 the community as a whole." 21 The young people of America are a tremendous 22 resource. They want so to participate. They want so 23 to make a difference. They want to be involved. They 24 want to be heard. And if you can reach out to them, 25 as the members of the bar have reached out to these 24 1 young people today and in these weeks that have 2 passed, you can make such an incredible difference. 3 You have the legal profession, and I look 4 forward to working together with you to make sure we 5 make a difference for all America, in our communities, 6 in our neighborhoods, and in our schools. Thank you. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 1 REPORTER'S CERTIFICATE 2 THE STATE OF TEXAS * 3 COUNTY OF TRAVIS * 4 I, Marsha N. Yarberry, Certified Shorthand 5 Reporter in and for the State of Texas, do hereby 6 certify that the speech of Janet Reno appearing in the 7 foregoing transcript was taken by me to the best of my 8 ability and thereafter reduced to typewriting under my 9 direction. 10 11 12 WITNESS MY HAND AND SEAL OF OFFICE, this the 3rd 13 day of February, 1997. 14 15 16 __________________________ 17 MARSHA N. YARBERRY, CSR 18 Certification No. 5100 19 Expiration: 12/31/97 20 1617-A West 6th Street 21 Austin, Texas 78703 22 (512) 482-0828 23 24 25