as of. September 8th, 2000
I INTRODUCTION
From 1997 through 2000, the American Board of Trial Advocates (ABOTA) sponsored a series of meetings of representatives of ten (10) legal associations representing a broad segment of the civil trial practice. The original meeting was convened at the invitation of Michael F. Colley of Columbus, Ohio, who was then President of ABOTA. The sessions were chaired by Claude H. Smart, Jr. of Stockton, CA, chair of the ABOTA Bar Coordinating Committee. In attendance at various times were representatives of the Academy of Rail Labor Attorneys (ARLA), the American Bar Association (ABA), the Association of Defense Trial Attorneys (ADTA), the Association of Trial Lawyers of America (ATLA), the Defense Research Institute (DRI), the Federation of Insurance & Corporate Counsel (FICC), the International Association of Defense Counsel (IADC), International Academy of Trial Lawyers (IATL) and the Association of Defense Counsel of Northern California (ADCNC). The joint meetings have been entitled the American Civil Trial Bar Roundtable and the participating groups have been referred to as the Roundtable participants or organizations. The meetings were organized to bring together a group of experienced and respected trial practitioners representing diverse viewpoints in the civil trial Bar and to gain their expert assessment of the state of the civil trial system and make recommendations in that regard. The participants acknowledged the lack of consensus about the validity of some opinions, but they stressed the importance of a forum in which to exchange ideas. This White Paper contains a general statement of principles on which agreement has been reached and is intended to be the first in a series of reports that may become more specific in nature.
II BACKGROUND
Many of the changes proposed in the civil justice system debated in legislatures and other forums in the recent past have not emanated from the civil trial Bar. For nearly 20 years, others from outside the system have played a leading role in crafting proposals and offering ideas to change America’s civil justice system. The vast experience of the practicing trial bar has not been sufficiently tapped in assessing whether the proposed changes in the civil justice system are needed or wise or whether they will work to accomplish the reforms envisioned.
Some general propositions supported by the Roundtable groups include the following: America’s civil justice system is often the envy of other nations in both the developed and developing world; the civil justice system operates best when each party is on as level a playing field as possible with regard to trial resources and the litigants are represented by qualified and competent counsel; and that a sophisticated economic system like that in place in the U.S. needs a reliable judicial system rendering fair and impartial justice.
The civil justice system is designed to accomplish many competing goals and objectives that include fairness, confidence of the citizenry and litigants in the outcomes, impartial judges and juries, deterrence of wrongdoing and compensation for injury caused by wrongful conduct. Moreover, cases should move through the system expeditiously and efficiently.
An advocacy system employing vigorous cross examination is the best means in a democratic society for finding the truth and the jury trial still represents in most cases the best system devised for determining facts and reaching a just result when adverse parties are involved in a dispute.
The Roundtable participants discussed and reached general agreement about the following:
1) The Current Condition of the Civil Justice System
2) The Status of the Civil Trial Practitioner Today
3) The Role of Jurors and the Status of the Jury System
4) The Condition of Court Systems in the U.S.
III ISSUES EXAMINED
A) THE CURRENT CONDITION OF THE CIVIL JUSTICE SYSTEM
It is recognized that the civil justice system and civil trial practitioners have come under intense study and criticism over the past two decades. But much of the study and criticism has been the result of expedient political debate and not predicated by scholarly attempts to review or truly reform the system. The public and policymakers need to receive a more balanced view of how the civil justice system operates. Individual lawyers and legal organizations, including those participating in the Roundtable, need to better educate the public on the role each participant plays in the system and the benefits provided to the public by the system. The organized Bar is an appropriate group to take formal positions on any proposals to change the legal system.
Each organization participating in the Roundtable is expected to adopt its own policy positions and programs to address the public debate surrounding the civil justice system. Legal organizations involved in the civil justice system should as often as possible work together to speak with one voice to address unfounded criticisms of the civil justice system.
According to an ABA-commissioned national survey released in February 1999, 80 percent of Americans believe that "in spite of its problems, the American justice system is the best in the world." The survey also suggests that perceptions of some components of the system have improved over the past 20 years, when compared to a similar survey conducted in 1978.
"Perceptions of the U.S. Justice System" found that the root of this support seems to lie in the jury system, with 78 percent of respondents saying it is the fairest way to determine guilt or innocence. More than two-thirds--or 69 percent--believe that juries are the most important part of our justice system.
More efforts must be made to educate the public about the true conditions that exist within the justice system. Strong leaders and appropriate inter-Bar structures are needed within the legal community to assure the cooperation of disparate legal organizations. If the public and its elected and appointed representatives receive a more balanced view concerning the facts surrounding the legal policy issues affecting the trial practice, a better civil trial system will result. The public debate needs the input and opinion of those who know most about the civil justice system--the trial experts familiar with how the system actually works and performs on a daily basis.
B) THE STATUS OF THE CIVIL TRIAL PRACTITIONER TODAY
In public and doubtless private discourse, the legal system and the civil trial practice in particular have come under rather sharp attack. Lack of respect and confidence seems to have developed in the public’s mind for the trial practice and trial practitioners of all types. Much of the criticism appears without justification but nevertheless it has taken hold.
Precise causes for the decline in the profession’s standing are hard to pinpoint. Tasteless advertising has no doubt contributed to a growing disrespect for trial practitioners. Also, the perceptions that the legal practice has evolved from a "noble profession" to a mere "business enterprise" has probably played a major role in eroding the public’s perception of lawyers and the legal system. The perception that attorneys fees and firm income have too often become commodity items for negotiation among lawyers and clients and considered more important than service is another reason for the decline in respect for lawyers in general and trial practitioners in particular. Finally, the perception of a lack of civility of lawyers toward one another leading to "win at any cost" tactics and hardball ultimatums have reduced the public’s esteem of lawyers, including trial lawyers and the trial practice.
All lawyers and legal organizations must work together to restore the American public’s respect for its lawyers and legal system, and especially so for trial lawyers and the civil trial Bar. Creative ways to inform the public about the value of the civil justice system and the lawyers involved in it must be developed.
Legal organizations should work with law schools and other organizations that formulate curriculum changes in law schools to advance courses that instill a sense of professionalism in the future practitioners. Roundtable groups and legal organizations of all types should encourage their members, and individual lawyers need to persuade their partners and associates, to help in the effort to restore a sense of professionalism in younger colleagues through mentoring and other programs that stress fair and ethical treatment of fellow and opposing counsel.
State Bar Associations or other regulating bodies should promulgate, if they have not done so already, Rules 7.1 through 7.5 of the "ABA Model Rules of Professional Conduct" governing advertising and promotional activity of lawyers to ensure orderly regulation of the profession. Sufficient funds also need to be made available by the Bar to ensure vigorous but balanced enforcement. All interested legal organizations should participate in the American Bar Association’s (ABA) Commission on Advertising to ensure further study and emphasis regarding these issues.
An affirmative media relations program should be implemented to respond to attacks on the trial Bar and to begin the process of restoring the public’s view of the civil justice system, the trial Bar and the trial practitioner. This media program should be undertaken by each Roundtable organization individually and should be implemented on the local level. Participation in and support of the work of the existing ABA Standing Committee on Strategic Communications is encouraged to help foster a unified approach within the entire legal community to address the public education issue.
C) THE ROLE OF JURORS AND THE STATUS OF THE JURY SYSTEM
The right to trial by jury is a fundamental right ensured in the Constitution of the U.S., the Constitutions of the States, and an essential and dynamic element in the Anglo-American traditions of justice. To ensure that the jury system remains a vital part of our democratic structure into the next century, courts and legislatures must be sensitive to the changing needs and expectations of the American people and individuals called to serve as jurors.
Juries have received much study and attention in recent years and, responding to that background, the Roundtable organizations examined the condition of the jury system in the United States today looking in particular at the role of the jury in the judicial system, the public’s participation in the jury system, and critiques that have been made about the fairness, efficiency and effectiveness of the jury system.
In addition, the impact of ADR programs on the jury system and the future of the jury system in state and federal courts were also reviewed. The role of the lawyer in relation to the jury system, the high cost of taking a case to jury trial, the public’s perception of the jury system after the recent series of high profile cases, the ever increasing use of consultants and outsiders in projecting jurors’ attitudes, the entire jury selection (including voir dire) process and the treatment and utilization of jurors during their period of service were other topics examined by the participating organizations.
Juries should continue to play an integral role in the civil litigation process. High standards of fairness need to govern the selection and treatment of jurors. Proposals for change must be thoroughly justified in terms of serving the public generally so that there is no appearance of favoring the demands of competing groups or special interests.
The jury trial is a potent symbol of the quality of justice rendered in America largely free from political influence or economic pressure. Unwarranted attacks on and distortions concerning the jury and civil justice system should not go unanswered by trial lawyers and their organizations. Education of the public regarding the history, role, value and benefits of the jury system should be undertaken.
With funding from the State Justice Institute, the Jury Initiatives Task Force of the American Bar Association Section on Litigation and the National Center for State Courts have produced a manual entitled Jury Trial Innovations. Its first chapter describes how jurors conceptualize evidence and testimony to arrive at their verdict and suggests innovations that may improve the effectiveness of the jury as an integral component of our civil justice system. Succeeding chapters present a series of innovations and techniques in a neutral and objective fashion without specific endorsement or criticism.
One of the innovations deals with the length of jury service. Under this proposal, a person’s term of jury service is limited to the completion of one trial. If a prospective juror is not selected for a jury on the first day, the prospective juror is deemed to have fulfilled the jury service term by having been available on that one day. Persons may be on call for several days, but once they report, their service is completed by serving one day or one trial. The one-day/one-trial concept has been adopted by many jurisdictions.
Other suggestions describe various means to make the selection process more efficient; to provide jurors with written information about the case and their responsibilities; and with the ability to take notes. Some of these suggestions may be helpful to the process in specific cases.
A variety of public outreach strategies also are described through which the community learns about the concept of trial by jury, including the importance of jury service. Examples include:
Press conferences with leaders of all branches of government pronouncing Jury Service Appreciation Week;
Public service advertising campaigns using newspaper, television, mass transit, public buildings, libraries, grocery stores, courthouses and schools;
Targeted media outreach using informal radio and television interviews with trial judges, other court personnel, and attorneys;
Targeted educational outreach to high school government, speech, U.S. history, or civics classes wherein judges explain the role of the jury in the judicial process;
The development of educational videos that put student audiences in the role of a simulated jury, hearing evidence and jury instructions and deciding cases.
For further study, documents that may be reviewed include the "ABA Standards Relating to Juror Use and Management" and the "ABA Civil Trial Practice Standards".
Trial practitioners and legal organizations to which they belong need to cooperate in the presentation of balanced programs on the jury system and the way in which it can be improved. In particular, such programs should be presented at local and state bar associations, judicial conferences, and as a part of classes or special lectures at law schools.
D) THE CONDITION OF COURT SYSTEMS IN THE UNITED STATES
A fundamental issue facing court systems throughout the United States today is that of adequate and timely funding so state and federal courts can carry out their constitutional mandates. Adequate funding affects the judicial branch’s ability to deliver to the public the services citizens have come to expect of courts--the rendering of evenhanded justice and timely disposition of disputes.
Unless judicial salaries are equitable it will be difficult to attract and retain high quality, experienced lawyers willing to serve in the judicial branch. With regard to the federal judiciary, the present mechanism for setting judicial compensation has failed to protect federal judges from erosion in real after-inflation compensation. Congress should delink the salaries of the federal judiciary from those of Members of Congress so that federal judges receive the same Cost-of-Living-Adjustments (COLA’s) granted general schedule federal employees. Sufficient resources also must be allocated to the judicial branch for staffing and facilities. Adequate staffing is needed to help move cases through the system and avoid delays.
Additional funds are also needed for new and updated facilities to meet the practical physical demands created by ever increasing case loads. Additional funds are also required to purchase and install equipment for adequate courthouse security and to ensure the safety of judicial personnel, the public and the legal community. Local, state and federal bar associations must take a more active leadership role to work with their judiciaries to ensure that judicial branch funding allocated by the government is sufficient to meet the demands of a changing legal system, which has increasing demands and expectations made of it by both legislatures and the public.
There continues to be a need to reduce the cost of litigation and eliminate unnecessary delays in the litigation process. The Bench and Bar need to find ways for litigants, interested parties and the public to achieve greater satisfaction with the civil justice system.
Early judicial intervention and effective case management can improve court efficiency and reduce costs and delays. These techniques should be employed subject to the consideration of additional litigation costs that can be burdensome in some circumstances. Alternative dispute resolution methods that are selective should be encouraged. Modalities such as mediation, early neutral evaluation and pretrial settlement conferences that assure every party’s constitutional and other legal rights and remedies are protected have proven to be effective in this regard.
Under our system of jurisprudence, the courts must resolve disputes according to the law, rather than the wishes of some segment of the public. Preserving the power of the courts to do what is right while sustaining their legitimacy in the eyes of the public is one of the most delicate balancing acts of our constitutional system. If the courts alienate the public and lose the public’s support and participation, they cannot carry out their appropriate constitutional role.
Elected and appointed judges, like all other public officials, are ultimately accountable to the people. Accountability can be accomplished through merit selection and retention mechanisms, which are recommended for all jurisdictions. Judicial candidates should be evaluated based on their perceived judicial temperament as well as professional competence and integrity.
The judicial branch should have full opportunity to participate in continuing education programs to assure that judges and court personnel keep abreast of substantive developments in the law and court administration. In addition, if the judiciary believes it is appropriate, funds should be available to provide training for judges in effective ways to communicate the needs of the judiciary to the Bar, the legislature, and the public at large.
A goal of our judicial system must be to resolve disputes expeditiously and inexpensively--with resolutions that are perceived by litigants, attorneys and other members of the public to be both procedurally fair and substantively just. The effective operation of the civil justice system depends on citizen confidence that there exists a public forum in which they can secure a fair and just resolution of disputes.
Efforts should be made to enhance understanding of the courts and ensure that the fundamentals of the litigation process are understood by all who utilize the system. Feed-back from the public should be encouraged on how successfully the civil justice system meets the public’s expectations regarding the administration of justice.
Information on how to utilize the court system should be provided through community institutions and in formats aimed at an increasingly diverse citizenry. Outreach programs should be brought to educational and community organizations and other public institutions. Relationships with the courts and law schools should be maintained and enhanced by lawyer organizations participating in legal education and training programs and activities. Those institutions should also be enlisted in educating the public about the legal system. Press and public access to court proceedings should be presumptively unrestricted, and experimentation with the use of televised trials at the federal level should continue. Public access should be balanced, however, with the court’s primary mission to administer justice.
IV CONCLUSION
Trial practitioners, as well as other lawyers, have a responsibility to celebrate and promote the role of lawyers in the broader society. We also must always strive for improvement in the civil justice system. This means we must participate in the issues of the day and time, and we must speak out on issues with a clear and positive voice. Joint efforts by legal organizations like those participating in the American Civil Trial Bar Roundtable can serve to fulfill this obligation.
