I would like to thank Gregory Joseph and my dear friend U.S. District Judge Nancy Gertner for inviting me to join you this morning. It’s a special honor for me to address the American College of Trial Lawyers, and to share the stage today with such impressive and distinguished speakers as Justice Cromwell, Justice Kirby, Judge Sparks, and Professor Coffee. And I don’t want to jump the line, but while I have the chance I’d like to acknowledge the 2010 Emil Gumpert Award Winner, Joseph Olimpi – I join all of you in recognizing the wonderful work that he and the other good folks at Neighborhood Legal Services in Pittsburgh do every day to advance the cause of justice.
When I was invited to address this gathering, I recognized that I’d be talking to – let’s face it – clearly the most distinguished group of trial lawyers in the country. So I knew I’d need to begin my keynote speech with – What else? – a good lawyer joke. It may say something of interest that there are so many to choose from. One of my favorites is a New Yorker cartoon that depicts a nattily-dressed gentleman talking to an attractive, apparently much younger, woman at a cocktail party. “Oh yes, I am a lawyer,” he says to her, “but not in the pejorative sense.”
I’m sure we’ve all heard our fair share of lawyer jokes, some undoubtedly far more colorful than the one I just shared. But, have you ever found yourself wondering why lawyer jokes of the truly pejorative variety are so prevalent? Wondering why so many of our fellow citizens seem eager to disparage the vocation that we all share and the work we perceive as honorable? Wondering, to be blunt, why most Americans have a view of lawyers that’s almost as unfavorable as their view of journalists and of congressmen?
One could answer as John Adams famously replied to his father after receiving a letter of public reproach for representing British soldiers accused of murder at the Boston Massacre: “I never harbored the expectation, nor any great desire, that all men should speak well of me. To inquire my duty, and to do it, is my aim.” John Adams’ modern-day counterparts, the 44 ACTL fellows who represented Guantanamo Bay detainees, and the ACTL Access to Justice Committee that coordinated the pro bono response to the Supreme Court’s 2004 decision in Rasul v. Bush, share a bond of fellowship with the young Adams. Duty is precisely the point: public critique comes with the territory when we embrace the very best of what our profession promises, the very best of what your organization practices: the singular role of the lawyer as the defender, and sometimes the last defender, of the constitutional principles upon which our society rests. You are, as Eric Holder told an audience at the Pro Bono Institute Annual Conference this March, “patriots” in the truest sense of the word.
The greatest virtue of our profession is its commitment to the steadfast defense of our constitutional principles – principles that promise equality and human dignity as embodied in our brand of constitutional democracy, democracy constrained by the Rule of Law.
I have dedicated my 40 years of teaching and writing to buttressing the Rule of Law, which I believe without hesitation is the central tenet of our American sense of order, equality, prosperity, and optimism. It is a uniquely American sense that finds its highest expression in a constitutional tradition that values stability and predictability but also celebrates growth and responsiveness to changing conditions and to evolving understanding. A week ago yesterday I gave the Constitution Day speech at the Great Hall in the Department of Justice, addressing that group of women and men – our government’s lawyers – about their solemn responsibility to ensure fidelity to the Constitution and its evolving spirit. But government lawyers have no special purchase on the truth – I could just as easily have been speaking to you, the pinnacle of our country’s trial bar.
Adherence to, and defense of, the Rule of Law is a necessary but not sufficient condition of justice. Law and justice are not synonymous. Law is a means. Justice is an end. And, all too often throughout world history and, sadly, our history as well, law has been an instrument not of justice but of injustice. After all, the law in the United States not so long ago denied freedom, even full personhood, to an entire race of human beings. For a full half century after the passage of the Fourteenth Amendment, our law denied full citizenship (including the right to vote) to an entire gender – over half the population – and our laws still deny full equality to many of our LGBT brothers and sisters.
Earlier this year, I had the privilege of attending the White House swearing-in of the newly confirmed members of the Board of the Legal Services Corporation, including my friend and colleague and the remarkable dean of the Harvard Law School, Martha Minow. Justice Kennedy was doing the honors, and he prefaced the ceremony with a reminiscence of a commencement speech he had heard the great Soviet writer and dissident, Alexander Solzhenitsyn, deliver. Solzhenitsyn’s theme was a challenge to the rule of law. Not simply a claim that the rule of law was honored in the breach both in his country and sometimes in ours, but a bolder claim that the rule of law was itself a false ideal, one not worthy of defending. At the time, Justice Kennedy found himself perplexed. Later, he realized that the impulse underlying Solzhenitsyn’s complaint was understandable in terms of Russia’s history and culture. Never having experienced law as an expression of democracy, Solzhenitsyn saw it only as an edict of the state, as the ukase of a ruler. To him, law represented something cold and unforgiving, the inflexible command of the sovereign, not the protection of those otherwise under the sovereign’s thumb.
In fulfillment of the aims of our democracy, the law is not simply a command but a promise – a promise that makes justice not an inert goal but an active verb. But many in this country and in the current generation would have a difficult time recognizing “justice” in the workings of our legal system. Our public defender offices are underfunded and overworked – annual caseloads can range from 500 to 900 felony cases and over 2,000 misdemeanors per lawyer. In 2007, some defenders in New Orleans averaged 19,000 cases a year, allowing an average of just 7 minutes per case. A startling majority of civil litigants in our country go to court without a lawyer, left by their economic circumstances to face life-altering events such as the loss of their home, the loss of custody of their children, and the loss of their privilege to reside in the United States without legal assistance. To qualify for federally-funded legal assistance in the United States, one must earn no more than 25 percent above the poverty level. More than 50 million Americans qualify by that criterion – a number that was calculated before the Census Bureau released its startling poverty figures for 2009 – but over half of those who qualify and seek assistance from federally-funded legal assistance programs must be turned away because the level of available funding is so low. And, as we know, the proportion of poverty among blacks and Latinos is nearly three times that among whites.
I’m sure that many of you saw the particularly disturbing article in the New York Times several weeks ago describing the foreclosure mills being implemented in Florida, where, if the article is even partially accurate, docket backlogs have seized precedence over the due process rights of families fighting to save their homes. And in case the system wasn’t already in enough trouble, the court systems in 28 states had hiring freezes in FY 2010, 13 states froze court staff salaries, six states mandated court furloughs, six states closed courtrooms – one day each month for all California courts. With fewer open courtrooms and court staff, people with desperate legal needs will have to wait even longer to secure the rights to which they are entitled, if they manage to do so at all. It’s little wonder that both President Obama and Attorney General Holder have recognized that the perennial deficiencies in indigent defense and the enormous gaps in legal services for the poor and middle class in the United States constitute not just a “problem” but a “crisis.”
I can’t help thinking that this crisis has at least something to do with the sentiment behind that New Yorker cartoon and Solzhenitsyn’s dilemma. We’d fool ourselves if we imagined that we’re unpopular simply because we’re all “noble patriots.” I’m afraid that the crisis in our justice system and the resulting, widely-held belief that it operates only to benefit the very wealthy has caused our profession to lose a good bit of its luster. Although many of us remain convinced that Rule of Law is the most salutary alternative to, and the most powerful tool against, Rule by Power – and although many of you dedicate yourselves to unpopular but deserving causes in testament to that very premise – many in our society, with some justification, cannot see the distinction between the two, viewing law as too much the tool of the powerful.
The Access to Justice Initiative that I have led since its creation in March of this year is charged with addressing the crises in our civil and criminal justice systems, and is directed to focus with special care on the most vulnerable among us, including juveniles, immigrants, veterans, and victims of domestic and sex-based violence. Since its inception, my office has been working vigorously with agencies both within and outside the federal government, with law schools and legal clinics, with federal and state courts, with public defenders and prosecutors, with mayors and other elected officials, to remove obstacles to legal help in these varied settings and to help forge partnerships that can make legal assistance more accessible. I don’t have the time to report, and I’m certain that you don’t have the patience to hear, the details of all of our various endeavors, but I thought I would share just a few from the past several months.
In late July, I addressed the National Conference of State Chief Justices in Colorado, where I prescribed a discrete set of achievable goals, including several related to supporting pro se litigants and improving juvenile justice systems that my audience was in a unique position to influence. As a result of that speech, the chiefs unanimously resolved to respond to another of my specific challenges by working to establish state access to justice commissions in the 26 states that do not yet have them.
Last month, I encouraged more extensive, systemic, and innovative pro bono work in keynote remarks at the ABA’s annual conference, followed by the rigorous study and development of courthouse self-help centers that I urged in a speech at the Ninth Circuit’s annual conference the next week (where, I should add, I spent a good deal of time with your impressive colleague Jim Brosnahan).
A week ago, I participated in a joint announcement with the National Telecommunications and Information Administration, which, after consultation with my office, awarded several million dollars in grants to innovative projects in North Carolina and Washington State that will use broadband technology to increase access to justice for under-served communities, including the rural poor and those living on Indian reservations. These broadband technology centers will create public computing and videoconferencing capabilities in anchor institutions such as health centers, public libraries, community centers, low-income housing complexes, and historically black colleges and universities, which will enhance online access to services and resources for those who have historically been excluded while increasing computer literacy among some of our most vulnerable populations. And, in the next several months, my Initiative will partner with others very high in the Executive Branch to announce several projects addressing the foreclosure crisis, legal and health services for veterans, workers’ rights, domestic violence, and violence against women.
I suppose you could say that, after four decades in academia, I’ve decided to roll up my sleeves and try to really get something significant and sustainable DONE about the issues on which I’ve spent my life lecturing, writing, and arguing. And I hope you won’t think me too presumptuous if I spend a little time this morning asking you to join me. You’re uniquely positioned to influence real change – the kind of change that could make a difference in the lives of people across this country and Canada for whom the justice system has not been so generous or giving as it has been for those of us in this room.
When many of you cut your teeth in legal trenches and foxholes around the country, defending the disadvantaged and despised, you were wearing suits that cost a small fraction of those you’re wearing today. Now that you’re famous and successful and can undoubtedly afford excellent dry cleaning, I want to invite you to jump back in those trenches and once again get yourselves a little muddy. I want to encourage you to do more than tackle a somewhat higher number of pro bono cases, or donate somewhat more of your time to representing folks who might otherwise be outgunned by powerfully represented opponents. My task here today is to convince you to work to identify systemic problems and become persistent, persuasive advocates of essential increases in funding and needed reforms.
But before I ask anything specific of you, let me first say that I understand the diversity of and disparity in interests and perspectives that are represented in this room. Clearly, no legal discipline, bar, or political belief has a monopoly on excellence in courtroom performance or client representation. But, the cause of access to justice is one around which you can coalesce; it’s a cause that can surmount our differences and merge us in our common calling as lawyers. John Broderick, the outgoing chief of the New Hampshire Supreme Court and a proud member of the ACTL, has been one of the most perceptive and outspoken observers of the mounting crisis in our state courts, where more than 95 percent of this country’s litigation takes place. He warns of the slow but sure disappearance of complex civil jury trials, where under-funded courts are overburdened with pro se litigants and criminal cases. He warns that there may well come a day where the only state court litigants to be found are those without lawyers and those charged with crimes, as folks with means – in other words, the folks who can afford your services – flee to private judges and mediators. And I know that this crisis has already hit home – Chief Justice Broderick has spoken publicly about the ACTL being forced to eliminate its requirement that your members have 25 jury trials before they are qualified to join, because in today’s justice system that minimum threshold would eliminate all but very few aspiring ACTL members.
That’s my not-so-subtle stab at trying to convince you that, even as your interests and ideologies diverge, as lawyers you have a common responsibility – and as an organization you have a common institutional interest – in seeking effective, workable solutions to the access to justice crisis. In my short time in government, I have already witnessed many promising programs and been exposed to numerous auspicious ideas. I would mention just two undertakings that I think are particularly well suited to the stature and talents of this decorated audience, undertakings that I hope you will embrace.
First, I know how aware you are of the crisis in indigent defense. I also know that many of you are already using your considerable talents to address the problem: Along with providing pro bono representation to Guantanamo detainees, you’re taking court-appointed cases (including, I understand, a handful of post-conviction capital cases), providing free training to indigent defense providers, and mentoring young defense attorneys. I want to encourage you to continue and, where possible, add to those crucial efforts.
But let me suggest, in addition, that you turn your justly deserved reputations for persuasion to the task of convincing state legislatures that have been failing in their constitutional responsibilities to provide adequate funding for indigent defense agencies, an obligation that surely belongs to the states under the Sixth Amendment but one that they too often treat as optional. As defenders of the Constitution, I hope you make greater use of your ample courtroom skills to advocate not only for the least popular defendants in individual cases, but also for what just might be, with apologies to those seeking comprehensive immigration reform, among the least popular political causes: more adequate and stable levels of funding for indigent defense services. I ask this of you for one simple reason: If not you, then who?
My office and its excellent (if small) staff of a half dozen lawyers has spent much of its time reaching out and traveling across the country to identify, and encourage the careful and systematic study of, innovative and potentially effective programs in an effort to discover what works and what doesn’t, to learn what can and should be replicated and what should be phased out. Some, from innovative pretrial release projects to the community oriented defender model, appear ready and able to go viral. Others may require more careful study. The point is that successful programs do exist, so when you go to your respective state capitols, fedora in hand, you needn’t simply ask for more money. Rather, your requests can reflect your extensive courtroom experience and your resulting insights into how this can be done better – you know the difference a good lawyer can make, how much waste can be avoided for all concerned by good lawyering on both sides, and how to implement real and effective change. Given your unique experience and your unparalleled success, you are in a better position to advocate systemic reform than any other constituency, and I urge you to wield that influence so that even the people who can’t afford the Roy Blacks and Tom Nolans of the world will get a zealous advocate. What better legacy could this 2010 convening of the ACTL leave behind?
The second thing I’d like to ask you to do is take your message of justice reform to your circuit conferences, where you undoubtedly exert a degree of influence not fully measured by your numbers. When I spoke at the Ninth Circuit Judicial Conference last August, I inquired about the process for passing circuit resolutions, in part because I learned shortly after taking office about the D.C. Circuit’s pro bono committee which has had substantial success in encouraging the largest firms here to contribute pro bono hours not only by associates, but by partners. When I raised the issue, I was informed by the judges in the room that resolutions generally weren't considered unless lawyer representatives proposed them in the months leading up to the annual conference.
So, the burden is on you. Because you all know better than I the maladies that impact access to justice most acutely in your corner of the country, I want to encourage you to become more active in your respective circuit conferences and promote resolutions that further access to justice. They could involve pro bono committees, or they could involve the establishment of self-help centers such as those being impressively implemented in the Northern District of Illinois and the Central and Northern Districts of California. The possibilities are limitless.
When Emil Gumpert kept Les Cleary up all night on that fateful train ride in California some 60 years ago, where he spelled out his vision of what would become the American College of Trial Lawyers, he must have had in mind an ideal whose whole would be greater than the sum of its parts in becoming a force actively engaged in bettering the administration of justice in the United States. Surely if Mr. Gumpert were here to watch his beloved vocation diminish in stature even as it grows in wealth, to see how much more public good the members of the College do as individuals than the College manages to do as a collectivity, he would praise you as individual lawyers while challenging you to join hands in making your collective efforts draw strength from your unity. He would challenge the American College of Trial Lawyers to do more as an organization to ensure that all our fellow citizens have meaningful access to the courtrooms in which lawyers like you have made your reputations – and to the justice that those courtrooms are there to make available. He would urge you, as the standard bearers of your profession, to make access to justice a common cause.
Let me end where I began. People are fond of saying that lawyer jokes have been around since Shakespearian times, referring of course to that notable line from Henry VI: “The first thing we do, let’s kill all the lawyers.” Although the Bard of Avon was probably trying to elicit some laughs at the expense of our profession when he wrote those words, commentators have noted that the line was in fact spoken by a character named “Dick The Butcher,” a member of a murderous clan bent on treachery and chaos, and that The Butcher spoke them as he and his crew contemplated inciting a revolution in England. In other words, among the lessons of that Shakespearian “joke” is that the necessary first step to bringing about social chaos is to eliminate the Rule of Law’s greatest protectors: lawyers.
On the other hand, I doubt that any equally profound “pro-lawyer” lesson lurks in the “pejorative lawyer” cartoon with which I opened my talk. Sometimes, as they say, a cigar is just a cigar – and that New Yorker cartoon probably conveyed nothing beyond a good, old-fashioned laugh at the expense of our sometimes pretty pompous profession. But I’d hate to have that cartoon lose its bite – its edge as a cautionary tale – while we in the legal profession stand by as our system of justice crumbles around us. In the face of the undeniable crisis that confronts our justice system, I urge you, in Chief Justice Broderick’s words, “to honor it, improve it, and, most importantly, defend it. It’s only a birthright if you protect it.”
Nothing less hangs in the balance than the noblest aspirations of our Constitution’s preamble, which exhorts us in soaring words to “establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.”
I have no doubt that you are up to the task. Thank you.