ADDRESS TO THE LOS ANGELES COUNTY BAR ASSOCIATION
U.S. ATTORNEY GENERAL JANET RENO
UNITED STATES ATTORNEY GENERAL
Los Angeles, California
May 1, 1998
P R O C E E D I N G S
MS. RENO: Thank you so very much for that introduction. I hope I can
live up to it. And, Ray, thank you so much for those good words. And, Los Angeles,
thank you for Ray Fisher. He's one of the nicest things that's happened to the Justice
Department. And, President Pasternak, thank you so much for all you've done, and
everybody else, to make this day possible.
I went to Washington loving the law and loving good lawyers. After five
years in office I have an even greater respect for the members of the bar of this nation and
I love the law even more. I'm very proud to stand with the lawyers of America and with
the organized bar. And I come today not as a critic but as an ally. Not to harp about the
misdeeds of lawyers but to talk about how we can make the law even better and more
responsive to all Americans. How the law can better serve its people.
I see four roles for the lawyer; peacemaker, a problem solver, a sword and
a shield. And oftentimes most of us talk about the sword and shield. But I'd like
specifically to talk about the role of the problem solver and the peacemaker today.
I'd like to talk about three problems that I think we as lawyers can address
better than we've been doing. First of all, I have observed in this nation a loss of sense
of community, which has produced on too many occasions disagreement and anger.
The second problem I see is that while technology gives us opportunities
that stagger the imagination, that it is necessary that we do more to determine how it can
be used to build trust and confidence, how it can be used to enhance the human spirit, how
it can be used to promote understanding in what we do to make sure that we master the
technology rather than the technology mastering us.
And the final point I'd like to discuss with you today is the fact that our
borders are shrinking and sometimes evaporating. The Worldwide Web has brought us
together in a new sense of community, and I think it imperative that lawyers focus on how
we address this new community of the world in which we live.
Let me turn to the first problem, the loss of the sense of community. In
this century America has been on the move. Many people have no roots. They live in
isolation unknown to their neighbors or they change jobs because their skill or vocation
has become obsolete as technology has changed the landscape, or they move so fast and
work so hard that they don't see their family grow up and they have no attachment in
some instances to the family because they are working so hard. What are the results? In
too many instances there is no foundation for trust because they don't know each other.
Lawyers too often can't make a deal on a handshake because they haven't
had a tradition of community. The immediate response is to sue because they don't know
anything else to do and in too many cases the suit goes to trial. I think lawyers can be
more effective. They can avoid a bad result. But I think too often our tendency to sue
produces a bad result.
We have a tendency to run off to the courthouse when we can't afford it.
We have a tendency to follow through on litigation without exploring it and
understanding the value of our case, only to find that it's cost us too much and it wasn't
worth bringing in the first place. And most importantly, we sometimes lose the case. But
finally the suit, even if somewhat successful, doesn't solve the problem that caused the
lawsuit in the first place.
And the problem continues to fester. An employee situation continues to
fester. A contractor working with a supplier continues to have the problems of tension
and dissension caused by the fact that the problem that caused the lawsuit that might have
been settled wasn't settled in the first place.
And what is the impact? The impact is that people too often don't trust
their lawyers and they don't trust the law.
There's a second problem that contributes to the loss of our sense of
community. This is a time in our nation of unparalleled prosperity, but unparalleled
prosperity for more people while at the same time more people are making less and
having less opportunities. And the gap between those who are doing well and those who
are struggling to make ends meet, even in the barest sense, is becoming greater and
greater. And as that happens, communities begin to feel the tension and even begin to
feel the terror.
As a result fewer people have access to the law, and that presents one of
the fundamental legal problems for America today. It has always been our inherent
problem. But what it means is that for many Americans the law is worth little more than
the paper it's written on. And as long as that exists there are going to be people who feel
alienated and alone and unrepresented.
And we as lawyers must focus on how we address that problem because
what that problem means in the short term is that somebody feels left out. But for the
longer term, as long as that feeling, as long as the gap exists, there will be a feeling of
anger and frustration and dividendus, which turns to violence. It will be people who drop
out whether it be in high school or of society. It will be jobs unfilled because we do not
have Americans with the skills necessary to fill the jobs. It will be medical institutions
brought to their knees because we have failed to provide preventative medical care up
front. It will be a society that is torn by racial and cultural division.
This nation is too great to even let that begin to think of happening. And
all of us as lawyers have a special responsibility to be the peacemaker, to be the problem
solver and to do something about this.
I've had a lot of opportunities to listen to lawyers in these five years. One
of the great and wonderful experiences that an Attorney General can have is to sit around
with the lawyers around her conference table and hear some of the best lawyering you've
ever heard in your life. And to have people come to discuss issues. It's just been very
I'll start with a criticism of myself first, though, and forgive me for sharing
these things with you but I thought it might be helpful. Lawyers don't listen to their
clients very well. They don't trust the people enough. And you find if you start listening
to the other lawyer's client, as they sometimes jump into the conversation and then start
talking to the lawyer, that you can help interpret a little bit. Trust your client. Trust the
people. Believe in the people. That is what our legal system is all about.
Communicate and use the law in a simple eloquent manner. As Winston
Churchill said, "Use small old words." Listen not only to your client, listen to the lawyer
talking across from you. I must admit, I hear a brilliant legal argument and then suddenly
something kicks in about the crisis of the day and then my mind wonders off and I've got
to get back to the point.
Listen, because if you listen you will hear the threads of agreement so
often running through the conversation. Watch the tone of voice. I do it. I get dismissive
of an argument and I miss a great chance for solving the problem.
Most of all, we're cutting down so many trees in America today. With
recycling, we could cut down a lot less and make our points a lot more powerfully, if we
learn to write. I get so I can't wait to get a brief or a memorandum from certain people
I've identified in the Department of Justice because I know I will be able to read it from
beginning to end without having to see what phrase modified what word or what point
was being made. We're trying to engage in some writing improvement programs in the
Department of Justice and I can benefit myself.
If we do some of these things the results will be that the people of America
will have a better understanding of the law. They will have greater confidence in the law
and they will be better able to use the law themselves to make themselves self sufficient,
which is what we're all about.
The third point I would make with respect to community and the
dividendus that we have seen, is best made by one of America's most distinguished
lawyers who lived over 100 years ago and I would be interested to see who can identify
the author. "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 peacemaker the lawyer has a superior opportunity of being a good
man or woman. There will still be business enough." Abraham Lincoln.
I know I'm preaching to the choir. I know California has one of the most
comprehensive dispute resolution programs in the country. But we must try harder. The
Department of Justice, the lawyers in it, the lawyers in America, to stop short of litigation,
to quickly resolve disputes, to solve the problem causing the dispute, to solve it
permanently, to obtain a good solution at the lowest cost, to use negotiation skills and
ADR whenever possible.
I urge every law school in America to have a comprehensive program to
train its lawyers in how to negotiate and how to use these tools. I encourage all lawyers
in this nation to participate in some continuing legal education programs.
I had Roger Fisher for civil procedure and he never mentioned negotiation
in 1962. Roger Fisher and his colleagues have shown us very very clearly that you can
teach people to negotiate and it's a skill that can be learned and it's one of the most
precious skills a good lawyer can have. But to do it and to use it right you've got to learn
the case up front and you've got to make sure your client learns the case up front. You
can't negotiate if you don't know what you have.
And that comes down to one of the things we've all got to do, we've got
to stop procrastinating. We tell ourselves that all the time. But the case analyzed early
on and evaluated early on can save everybody the time and the grief. And I can tell you,
the client that has the case hanging around his or her neck like a slow drip drip just wishes
it would be over. It's not just the money, it's not just the end result, it's the burden of
Don't be afraid to go to trial though and retain your trial skills because
you'll never get anything negotiated very well if you don't have the threat that you can
carry out to take that case to trial. But understand that negotiation and mediation is not
a sign of weakness. Recognize that a mediator may assist you in giving you an objective
assessment of how to be a better problem solver. And finally, let me know if the Department of Justice isn't doing right by
ADR in Los Angeles County. At the Department I took steps three years ago to create
an ADR program. I call it "Appropriate Dispute Resolution" because trials are certainly
a part of it. Our ADR program is intended to insure that all of our lawyers in civil
practice use problem solving and dispute resolution techniques. We want our lawyers to
remember that advocacy is not confined to the courtroom. That is why all of our lawyers
are being trained to be more effective negotiators and to use forms of dispute resolution
such as mediation whenever it is appropriate to do so.
We used to evaluate our attorneys on how well they conducted legal
research and how well they argued in court. Now we also evaluate them on their
negotiating skills and how well they use ADR. In the past we promoted and we gave
awards to lawyers who were great litigators. Now we also promote and give awards to
lawyers who are great negotiators and settlers. We are using mediation and other forms
of ADR to resolve tort claims, workplace disputes, environmental litigation, contract
actions, false claims cases and civil rights litigation.
In three years the Department of Justice has almost quadrupled the number
of cases where some form of ADR has been used. We are working with federal agencies
in Washington and throughout the country to make them more effective partners with us
when we try to settle litigation involving them as our client. We also hope these agencies
will use dispute resolution to settle more disputes before they ripen into litigation.
It is particularly gratifying to have been asked by the Secretary of Defense
to come over and talk to 200 of the top civilian and military brass of all the military
forces, and suddenly find the Air Force and the Navy issuing memoranda and following
up with training on just how they can participate and be a true partner in ADR.
Dispute resolution is being used more and more because it can provide not
just a faster and more effective means but also a gentler means of settling the dispute, of
settling a dispute without damaging the ongoing relationship that the parties to the dispute
may have. A defense contractor, the military, the Department of Defense would like to
continue to do business together. If they've had a bruising trial, that's not going to be
worth much. This is true in disputes that arise from contracts, in the workplace or
anywhere that more traditional scorched-earth litigation could be counterproductive.
We are strongly supporting a bill recently passed by the House of
Representatives which requires every federal district court to establish an ADR program
if it has not already done so. This bill would also require every litigant to consider at
some appropriate point in the case whether ADR should be used. We hope the Senate
will act and that the bill will become law.
It is equally important for all of us to recognize that dispute resolution is
more than just about our legal practice. I think we should constantly ask in our legal
practice, in our pro bono efforts, if we're solving the problem.
Let me give you an example: I see some lawyers in the Department of
Justice come back from their pro bono initiatives triumphant because they have won one
case against one landlord for one unit in the building and they won the case because the
landlord has jury-rigged the situation to get into compliance and there's nothing we can
do about it. I challenge you all, just think that the same problem probably exists with the
whole apartment house. The landlord has told you that it's just a hopeless situation
because the place is being vandalized. The crack dealers down the street are scaring
everybody away. He's not getting the rents, and it's all a terrible situation which he has
no control over.
Rather than just take the one unit, take on the whole apartment house and
rather than go litigate against the landlord for a jury-rigged solution to the problem, why
don't you learn a little bit more about what grants are available through various federal
agencies or local community development grant agencies. Why don't you figure out what
can be done with community policing and go to the police chief and say, "There's a
situation down here that needs some community policing initiatives and I think we can
organize this apartment and the area around it to be more effective in this."
Let's look at what the problem is and get it solved in the long run. And if
we really want to be ambitious let us go beyond one apartment house and let's look at a
neighborhood. A neighborhood such as I saw in Jackson, Mississippi where the Habitat
for Humanity and others had organized together to effectively start reforming and
rehabing an entire neighborhood. Let's solve the problems rather than providing the band-aids.
But sometimes lawyers don't know how to solve problems. They don't
know how to get rid of the abandoned car or the vacant lot that is overgrown.
California is doing some very interesting things in community justice. In
community justice that requires community advocacy. And I would urge the State of
California to start thinking in terms of a degree in community advocacy. Teaching
somebody how to know city hall, how to know the ins and outs of just the basic living
problems that so many Americans face that they will never be able to afford a lawyer to
These advocates could work under the supervision of lawyers. Law firms
could make them a part of their practice. They could charge based on a sliding scale.
They could make problem solving a reality for a large number of Americans who now
never have their problems solved.
But you can do more. You've done one wonderful thing today amongst
many and that is to invite some wonderful students here, and I'm so delighted to see that
you are here, because I have a dream that every student in America will be taught dispute
resolution skills, problem solving skills from the beginning, so that they will know better
than any of us how to resolve conflicts without knives and guns and fists. How to work
together to address community issues and to provide positive solutions rather than angry
In San Antonio about a year and a half ago I had the pleasure of meeting
with young lawyers, young lawyers who had put together a conflict resolution program
for a high school. The program was funded by the American Bar Association. Other bar
associations are participating in efforts like this across the country. We can make it real
for all Americans. And think about resolving conflicts peacefully.
My dream is that the lawyers will lead the way not just with respect to
students, but in helping the teaching profession understand how they can be better
mediators, how they can teach conflict resolution to their students. So, having met some
wonderful mediators today in terms of the principal and the assistant principals, my dream
is that every teacher will be able to teach conflict resolution by the -- five years from now.
We ought to be able to do that.
And that every community police officer instead of being the presence that
means authority will be the presence that means problem solving and peacemaking,
somebody that you trust because they know how to talk to a young person. They know
how to walk into a situation and mediate it. They know by tone of voice and the way they
carry themselves how to affect a peaceful solution. They, like the trial lawyer, will have
to be ready to wield the sword. But they won't have to wield the sword as much if they
are trained in these problem solving, peacemaking solutions.
Now I want to add the two other points, which are vital. New technology,
our information technology, our information infrastructure, is giving us new opportunities
that stagger the imagination. New opportunity to learn, new opportunities of commerce
and new opportunities of bringing the world together. But this technology also brings
some concerns. Concerns for the privacy of all Americans. Concern for crime from
If a man can sit in his kitchen in St. Petersburg, Russia and steal from a
bank in New York, we understand the dimensions of the problems. When the Internet can
be used to convey hate, we understand that we're going to have to deal with this issue in
order to insure its use as a magnificent tool.
Lawyers have got to learn to talk with the scientists and scientists have got
to learn to talk with the lawyers to understand how we use this tool the right way
protecting the privacy of Americans, preventing it from being used to divide while at the
same time upholding the treasured constitutional protections that we cherish, including
freedom of speech.
These are great and wonderful issues, but the reason I raise it is that I've
watched the lawyers and the scientists come together like this. Most lawyers don't
understand the technology. They don't understand the language and the scientists don't
understand the lawyers, and we're going into a new millennium with new challenges.
The Department of Justice has got to do better. We've got to make sure
that we understand the language, understand the principles and come together to resolve
the sometimes apparent conflicts that don't need to exist if we develop the understanding
that is so important.
And finally, because of that technology the world is a different world.
Borders are shrinking, or evaporating, our community is expanding. You see it in Los
Angeles. I see it in Miami. We see fragile emerging democracies around the world.
There is nothing quite so beautiful as an emerging democracy trying,
taking its first step, sometimes a baby step. A minister of justice comes, marvels at the
democratic processes, talks about what they want to achieve in this nation that has not
seen democracy for years and years, and then the next thing you hear there's been three
steps back after two steps forward and you wonder how they're doing.
We have an obligation to do everything we can to reach across space
through the web to build new communities of opportunity because if we don't, the crime
committed in another country that impacts us will again divide our community.
Commerce, all our relationships are going to depend on how we move into this next
century understanding the community is not just Los Angeles, it's not just a piece of Los
Angeles, it is the world and how we live in it.
I have spoken to you about problem solving and peacemaking, but as the
lawyer I am I go back with one final comment about the sword and the shield.
One of the most remarkable moments I've ever had was to reinvestigate
the case of a man who had been prosecuted, convicted and sentenced to death 21 years
before for the poisoning death of his seven children. He had stoutly maintained his
innocence. The Supreme Court had lifted the death penalty from him, but he had
remained in prison. I determined that the evidence was insufficient to charge him
originally, that he should go free. And I will never forget for as long as I live looking
over my shoulder as I left that courthouse and watching that man go free for the first time
in 21 years.
We see too many instances where DNA has proved that somebody who
was convicted was innocent and that they should go free. All of us as lawyers have the
eternal duty to make sure that we use the law as a sword and shield to protect the
innocent. And to insure to all Americans, regardless of whether they can afford it, proper
legal representation to make sure that injustice is never done.
Thank you very much.