OF THE DAY
April 15, 1998
Legal Education & The Future Of The Republic
YALE LAWYERS AND THE U.S. CONSTITUTION
Address by HARRISON SHEPPARD, Attorney at Law Delivered to the San Francisco Yale Club, San Francisco, California, March 3,1998
It is a special pleasure to have been invited to speak to the Yale Club. I never attended Yale, but it has important associations for me directly related to what I am going to talk about. I went to Law School here in San Francisco, at the University of California’s Hastings College of the Law. The only law professor with whom I established any real rapport as a student was a Yale graduate and former member of the Yale Law School faculty: Professor Roscoe T. Steffen, for whom I worked as a legal research assistant. Prof. Steffen was born in Montana in 1890. When he was a Yale Law School student, he attended Constitutional Law classes given by William Howard Taft, between the time Taft was President and the time he was appointed Chief Justice of the U.S. Supreme Court. It was as a result of a recommendation by Prof. Steffen to the Attorney General of the United States that I began my own legal career as an attorney in 1967 with the Antitrust Division of the U.S. Department of Justice in Washington, where Prof. Steffen had also served.
The second association with Yale that has personal significance is even more directly related to the subject of my remarks. The present Dean of Yale Law School, Anthony T. Kronman, has written what I believe to be the best of many books that have been published during the past decade about the decline in standards of legal practice in America: The Lost Lawyer: Failing Ideals of the Legal Profession (Harvard University Press, 1993). In my talks around the country to State Bar associations (and at Annual Meetings of the American Bar Association) to discuss the critical need for change in American legal education and practice, I regularly cite Dean Kronman’s commentary on the progressive loss of what he calls the “lawyer statesman ideal” as the model of legal practice.
It is therefore my impression, for these and other reasons, that the dominant Yale ethos, perhaps it is not even going too far to say its spiritual outlook, is much closer than that of other law schools, for example, Harvard’s, to what is needed to reinspirit the American legal profession in needed directions. What I mean by that I hope will become clear by the conclusion of this talk.
Prevalent Lawyer Practices
The assigned topic is “The Need for Change in American Law School Education.” In addressing this topic, I do not wish merely to inform this audience. I want, in addition, to alarm you. For it is my opinion, after having studied the issue intensively for some years now, that the present typical behavior of lawyers, if continued unchecked and untransformed, seriously jeopardizes the future health and security of our most important civic institutions, and imperils the ultimate object of our form of government which, as stated in the Preamble to our Constitution, is “to secure the Blessings of Liberty to ourselves and our posterity.”
In order to describe the specific needs for change in legal education, I will begin with some observations about the state of legal practice.
Lloyd’s of London has estimated that “lawsuits arising from the dreaded ‘millennium bug’ [the inability of computers to recognize dates beyond the year 1999] will top $1 trillion in the United States alone.” Leaders of the computer industry, however, take another view of things. “When I talk to people [about the millennium bug problem],” Hams Miller, President of the Information Technology Association of America says, “unless there’s a lawyer in the room who’s trying to make some money out of it, nobody’s talking about legal liability.” He says his Association is doing as much as it can to educate and raise people’s awareness of the problem. “We think that’s how you deal with this issue. You get it solved rather than hypothesizing about liability issues.
The difference between (1) a litigious and (2) a problem-solving approach to difficult situations is precisely the difference between what is now ailing the legal profession, with actually adverse, and potentially disastrous economic, social, and political consequences, and what needs to happen for the profession to correct itself.
One economist has loosely estimated that the cost to the public in unnecessary litigation is about $320 billion per year. And I have seen published estimates of the number of lawsuits filed each year in this country, of every kind, as high as eighty million. These figures do not appear to me to be at all fantastic. They are rendered credible by more well documented figures such as, for example, the figures of the Bureau of Justice Statistics of the U.S. Department of Justice in its analysis of case dispositions in its Special Report, Civil Jury Cases and Verdicts in Large Counties 1, July 1995. The Department’s Special Report analyzed case dispositions in 762,000 contract, tort, and real property cases filed in one year in the 75 largest
U.S. Counties. That’s more than three-quarters of a million cases, in the 75 largest counties, in just three areas of the law. What is really interesting, however, about the Special Report, is what it indicates about the wastefulness of litigation in the United States. For out of those 762,000 cases, only 1.5% were tried by a jury. Voluntarily settled cases (61.7%), and cases that were either dismissed (10.8%) or resolved by summary judgment (3.7%) comprised more than three-quarters of all filed cases (76.2%).
At first glance, one might suppose that these figures describe a good situation. After all, only 1.5% had to be tried. But consider: what legal expenses were incurred before the case settled at the courthouse door? They were enormous. For the fact is that use by lawyers of the formal pretrial procedures called “discovery” and “motion practice” constitute a typically and notoriously wasteful abuse of contemporary legal practice. Indeed, I doubt whether there is a single lawyer of sound mind in the United States who would not admit (off the record and over a drink, for example) that in the vast majority of cases, even relatively complex cases, if opposing counsel were able to deal with one another with consistent discreet candor, forthrightness, and reason, they could resolve their cases in one-tenth of the time it takes to resolve them through the formal adversary methods of legal practice. And I will testify myself, after thirty years in government and private practice, that I have only very rarely encountered a case that couldn’t be so settled if clients were counseled properly by their lawyers, and lawyers were properly trained to approach situations of conflict with reason instead of testosterone, greed, or well intentioned bad habits.
The truth of this assertion was illustrated, in fact, I would say it was demonstrated, for me, in my very first case in private practice. In that case, in which I was plaintiff’s counsel, reluctantly bringing the matter to litigation because the defendant’s lawyer refused even to talk to us about the problem, liability was fairly clear and the only real issue was damages. I offered to provide the defendant’s lawyer voluntarily with a full statement of the legal theory of the case and documentation of my client’s damages. The defendant’s lawyer was being paid by an insurance company. He insisted upon taking depositions of both parties and conducting other formal discovery over a period of nearly two years before agreeing to a mediation, in which the case was settled in half a day, for more than five times the amount my client was willing to settle for if the case had been resolved immediately as we had proposed, without formal procedures.
When I went to defense counsel’s office to pick up the settlement check, I asked him why the case couldn’t have been settled through the methods we had originally proposed. Justifying his insistence upon formal litigating procedures, he said “Well, that’s the way the system is supposed to work, It just didn’t work well in this case.” This point of view is, in my opinion,as it is in thousands upon thousands of cases like it that are litigated every month in this country, either nonsense, self serving nonsense, or an admission of incompetence. The file was probably just “not thick enough” for the insurance defense law firm to bring it to the insurance company adjuster until it had at least two (essentially unnecessary) depositions in it and reams of other (essentially unnecessary) discovery documents.
The costs of such unnecessary litigation add billions to the cost of living in the United States; billions to the costs of virtually every product and service offered. Fear of medical malpractice claims, for example, has been estimated to add between 7 and 20% to our national medical bill through strictly unnecessary defensive medical practices and procedures most physicians would not otherwise prescribe.
The Constitutional & Political Problem Posed By Adversarial Legal Practice
It is not, however, the economic costs of grossly excessive use of formal adversarial legal practices by lawyers that is the subject of my greatest concern. Nor, as a lawyer, is it the fact that the more contact people have with lawyers, the less they like them. Nor is it even the fact that lawyers themselves may now constitute the most depressed professional group in the country and are, in increasing proportions, dissatisfied with their choice of career. Rather, the greatest concern I have,which is a matter about which I believe we must all be or become concerned, is that most lawyers are no longer even aware of the fact that their most important function is to serve as the guardians of our Constitutional system in all that they do in both the public and private practice of law. And, moreover, that what is now a virtually universal ignorance or disregard of this fact may already be jeopardizing the maintenance and security of our most fundamental national purposes as articulated in the U.S. Constitution.
The authors of our Constitution comprised a constellation of thoughtful political architects probably without precedent in history. When they enunciated the purposes of our Constitution in its Preamble, they did so very carefully, with strict regard to the order of priorities our republican system is supposed to serve. That Preamble declares our national purposes to be as follows:
“We the people of the United States,  in order to form a more perfect Union,  establish justice,  insure domestic Tranquility,  provide for the common defense,  promote the general welfare, and  secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this CONSTITUTION for the United States of America.”
The first of our declared national purposes under our Constitution was “to form a more perfect union” out of the diversity of our people and the separate States. We may now pride ourselves on the diversity of America. But even at the end of the 18th century, the thirteen original States were also a “diverse” group. Without the technology of modern communications and transportation, without the homogenization of culture now made so possible by electronic mass media and multinational corporate enterprise, the people of 18th century Massachusetts and New York lived in a markedly different culture from the people of 18th Century Georgia and South Carolina. The very first purpose of our Constitution was to bring together this diversity in a  “more perfect union,” since our Articles of Confederation had so conspicuously failed to achieve that. This is a purpose that remains as critical now as it was then. The present diversity of the people of the United States, now still living together in relative harmony, is something of a political miracle. But our “more perfect union” may now again be threatened by forces working to tear it apart, under the leadership of litigious lawyers serving an unnecessarily litigious public.
Once the Constitution has formed a “more perfect union” among our people, its very first governmental objective is  to “establish Justice.” That purpose, note, is not to “establish law”; for that is presumed. It is to establish justice as the first object of our basic law. And whatever theories of “justice” may contend with one another, its core meaning is to give to each his or her due, not to give to each only what superior power or wealth or aggressiveness may choose or refuse to give.
The second object of our government (assuming a United States) is  “to ensure domestic Tranquility.” That is, once the union is assured, and our basic legal institutions organized to establish justice, the aim of our government is to insure tranquility among our people so united. This necessarily implies that use of the law as an instrument of discord, division, and battle, rather than as an instrument of peacemaking, where reason may find the means to make peace, is contrary to one of our Constitution’s prime purposes. The lawyer as problem-solver, conciliator, and peacemaker is faithful to this purpose. The lawyer as Rambo litigator with a private self-sworn oath “to take no prisoners” and assert a client’s rights to his or her last dime, even where peace may be purchased, with reason, much more economically, is an unfaithful enemy to this Constitutional object.
Given a well-united people, living under laws designed to establish justice, in domestic tranquility among ourselves, the Constitution turns its attention to our  common defence and  general welfare. These five stated Constitutional objectives are the predicates for its highest political goal:  “to secure the Blessings of Liberty to ourselves and our Posterity.”
The Need For Change in Legal Education Toward A Problem-Solving, Peacemaking Model of Legal Practice
Before relating this summary of our fundamental Constitutional purposes to the problem of legal practice and legal education in America today, permit me to interject a relevant personal note. Like tens of millions of other Americans, I am the grandchild and great-grandchild of immigrants. I have visited the lands my forebears fled, escaping tyranny and persecution. There is hardly a day that goes by that I do not thank them for giving me the privilege of having been born here. My travels around the world have consistently confirmed me in my happiness at being an American who has, throughout his life, enjoyed “the Blessings of Liberty” which have been secured to me. I am pleased and proud, not only to be an American, but to be a lawyer in a land where, as Lincoln put it “reverence for the law” is and should be “the political religion of the nation.” At this latter stage of my life, its sunshine comes most copiously upon me in the persons of my two grandchildren. I hope that they will be able to enjoy, at least as much as I have, the “Blessings of Liberty” our Constitution is designed to secure for them.
But the recently emergent typical behavior of lawyers gives me cause for anxiety on their behalves. Every American lawyer, when admitted to the bar to practice law, swears (or affirms) an oath to uphold the laws of his or her State and the U.S. Constitution. This oath has, for many, I fear, perhaps most, attorneys become a ritual whose meaning is ignored, disregarded, misunderstood, or forgotten. The proof of this could, I think, be simply established by discovering the number of attorneys who will confess it to be their Constitutional duty, as officers of the courts, privileged to interpret, advocate, administer, and enforce the laws of the land, to help “establish Justice, insure domestic tranquility … and secure the Blessings of Liberty to ourselves and our Posterity”; and the number of attorneys who will confess that a failure to use, with persistence and determination “to the best of their knowledge and ability” all the problem-solving, peacemaking, and conciliatory skills they have to help achieve these objectives, is a violation of their Constitutional oaths and a profound infidelity to the spirit of their calling.
The epidemic failure of members of the American bar to hold these purposes firmly in the front of their minds in all that they do as lawyers, is a failure which threatens to undermine the maintenance and security of our Constitutional purposes. In contrast to the frightening possibility of a post-civil society in America, we all must hope that the third century of our American republic will be likely to follow its first and second as world-historical miracles of stability, prosperity, and progress. But our hopes, I submit, will ripen into expectations only if enough members of the American legal profession come to recognize in time their critically catalytic role as the secular ministers of American democracy. That is, in fact, the role to which lawyers have been appointed by the American public:
“American lawyers work in a society that has chosen to thoroughly legalize itself. Alexis de Tocqueville noticed over a century ago Americans’ temperamental inclination to turn political, economic, and social problems into lawsuits. Thus the diversity and complexity of the lawyer’s work simply reflects American law as a political institution because of the kind of society twentieth-century Americans have constructed for themselves.”
Ancient and modern history show that when conflict among sharply differing factions in democratic societies grows, and legal institutions become inadequate to resolve them harmoniously and peacefully, the result is either authoritarian government or mob rule. Where violence in a society increases beyond a certain point, it is sad, but true, that most people will trade their liberties for greater security. Tocqueville also recognized this, as well as the essential role a prudent legal profession must play in maintaining the liberties of a republic. Speaking of lawyers (who were then exclusively men), Tocqueville wrote:
“I am not unacquainted with the defects inherent in the character of that body of men; but without this admixture of lawyer-like sobriety with the democratic principle, I question whether democratic institutions could long be maintained; and I cannot believe that a republic could long subsist if the influence of lawyers in public business did not increase in proportion to the power of the people.”
Tocqueville was not talking about Rambo litigators. His words may be understood to suggest that American democracy may survive and prosper in the 21st century only if we lawyers learn to do more than ever before to help harmonize our miraculous American diversity. This is a challenge for lawyers to think of themselves, and to act, as peacemakers first, peacemakers second, peacemakers third, and as warriors only in the very last resort, remembering, and taking very seriously, their Constitutional oaths. For if we lose our American Republic, it will not be conspicuously, in a tyranny of chains and dungeons. It will be quietly, and gradually, out of a concern for our physical security precipitated by rising social discord and violence until, as Tocqueville puts it, our people become “timid and industrious sheep, of which the government is the shepherd.”
And this brings me to the main point of this talk: the inadequacies of contemporary legal education to help lawyers carry out their responsibilities as the guardians of our Constitution.
The dominant model of American legal education remains one in which students are taught how to argue aggressively, with no quarter given or taken, and how to fight an opposing viewpoint with uncompromising technical skill. Fewer than 4% of American law schools require their students to take even one hour of training in negotiation as part of their learned skills. American law schools remain on the whole exactly the kinds of institutions you would create if you wanted to promote a kind of civil war instead of civil peace. Law schools are not schools for resolving conflict harmoniously; they are schools to help promote profitable conflict.
Given the increasing polarization of our marvelously diverse society, it should be considered a national scandal, if not a national disgrace, that law students are permitted to graduate from law school without being required to learn skills needed to help them resolve, rather than exacerbate, conflicts wherever possible; that they are not required to learn advanced techniques of successful problem-solving, peacemaking, win-win negotiation; and that they are, instead, encouraged to see themselves chiefly as aggressive warriors, rather than primarily as civic-minded peacemakers.
I will conclude this talk by addressing you directly, as alumni of Yale University; to plead for your active engagement in this cause, in every way you may be capable of participating in it:
through the demands you make upon your own attorneys; through the support you may give to the efforts of Dean Kronman to help alert the American public further to the dangers inherent in permitting “the failing ideals of the legal profession” to fail utterly; and in every other way you can to help move legal education toward a peacemaking model in faithful adherence to the expressly stated purposes of our American Constitution and our republican form of government. Let each of us do our duty to “secure the Blessings of Liberty to ourselves and our Posterity.”
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