Host
Ladies and gentlemen, the conference. we're privileged this morning to be graced by the presence of Justice Sandra Day O'Connor, who, through her graciousness, has agreed to participate and be with us in this our work today.
Justice O'Connor,
having been born in Texas, and educated in California, finally decided to settle them, Arizona or she built an outstanding body of work in public service service to her community. She was an assistant attorney general of Arizona in the late 60s before serving on the State Senate, or eventually she became the Minority Leader of the Senate. In 1975, she left the state senator of Arizona, one election to the Maricopa County Superior Court soon elevated to the Court of Appeals in 1975 and served there until 1981. On July 7, that year, President Reagan nominated Justice O'Connor to the Supreme Court. She took her oath of office on September 25 of that year. And for more about this remarkable person. I command to your attention justice economist VI, which appears in the material for the conference. That way, 13 years since her elevation to the nation's highest court, she has distinguished herself as a jurist, as we all know. Her superb judge and superb mind have been the hallmarks of our service, to the bar, to the profession, and to our country. Ladies and gentlemen, I asked you to join with me in welcoming Justice Sandra Day O'Connor O'Connor, Associate Justice, the Supreme Court of the United States.
Sandra Day O'Connor
Thank you. Thank you. Thank you. Thank you. Thank you.
President i'd and President-Elect Bush now and participants at this very important conference. I'm really very happy to have been invited to come and speak here today. And I'm also very happy that this symposium is taking place at all. finding common ground in the search for civil justice system improvements is an extremely worthwhile goal. And any legal system, there will always be dissatisfaction on the part of one group or another. plaintiffs dislike one room, defendants another, you can never please everybody. But when there are things in the system, such as we experienced today that are pleasing, no one when there were problems that fair minded plaintiffs lawyers, defendants, lawyers, and judges can all agree on problems. Surely, there must be some way everyone can get together to address them.
I'm going to offer some ideas I have on which I hope, maybe there can be common ground. None of them, of course will cure all eels the bar justice justice system. But put together with the many excellent thoughts that you are gathering at this symposium. I'm sure you're going to come up with some recommendations that may prove useful. My first suggestion relates to technology. Technology, of course, is not a panacea. It doesn't make us kinder, smarter, or more ethical. But it can make our services cheaper and more efficient for our clients and for the court system. By freeing us up from some of the frustrating drugs work. That's an inherent part of the legal system. It might even make us happier and more pleasant to be around. Here's one example.
Today the great majority of legal documents, pleadings, briefs, discovery requests discovery responses, are prepared on computer printed out and filed or delivered to the other party in printed form. But while papers are relatively efficient and familiar medium, it has its limitations. For instance, some courts require responses to interlocutory and other discovery requests to include a verbatim recycle of the original request. Often this means expensive and error prone re typing. Often also lawyer spend too much time scanning through documents, perhaps several huge complaints or briefs or discovery responses looking for a particular item, not the sort of thing for which people like to pay at the rate of $100 an hour. The same goes for court personnel. a law clerk might have to pour through hundreds of pages of court testimony, looking for places where some witness might talk about this matter or that if the transcript were on computer, as it surely had to be before it was printed out, the clerk could scan through it and seconds. But because it's all on paper, it has to be done manually.
Wouldn't it be reasonable for courts to ask litigants to file their documents both in paper form and on computer disk? Perhaps they might even require that all documents served on the other party be handled this way to their what of course the kinks to iron out. People might need to get programs to convert from one file format to another. Lawyers might have to be careful to electronically scrub their discs to make sure no confidential information accidentally gets out. But these are all manageable problems. And once they're overcome, we might be able to enjoy more efficient, less error prone and ultimately cheaper legal services. Another example perhaps a bit further into the future, but not much not by much telecommuting to the court. Today, telephone status conferences and sometimes even telephone oral arguments are routine. I remember how when I was a trial judge almost 20 years ago, I experimented them with video conferencing on certain types of hearings, and in criminal case arraignments. Although it worked extremely well. The cost was prohibitive. But the costs are a lot lower today, and they're going to be even less than the near future. In fact, some courts, especially those in the large but more sparsely populated states, are already planning on routinely holding many kinds of hearings by video.
I foresee a time when virtually every law firm will have several video cameras and video screens and their conference on which conferences can be held with opposing counsel with clients and with judges. Of course, there's a great charm to face to face contact, something that can't exactly be duplicated by telephone, or even by video. But there's also a great cost to it. lawyers have to drive to and from court dealing their clients of course, appellate judges often have to into town for oral argument week that taxpayers have to pick up the airline tickets, the hotel bills the meals, court rooms have to be booked for hearings, and if they're full, serious delays can result. Lots of highly paid professionals waste lots of time and lots of money, traveling and wasting. This may be an expense we can no longer afford, especially for relatively routine procedures.
Another way computerization can improve the civil justice process is by helping lawyers and even judges do better work inside the courtroom itself. A federal district court in my own home state of Arizona houses the nation's first courtroom of the future, in which the lawyers and the judge have access to computers, even file a trial is in progress. They're right there on their desks. The computers contain all the deposition transcript and all the trial testimony automatically transcribed from the court reporter shorthand and available for instant search and retrieval. lawyers who think of witnesses contradicting deposition testimony can find the prior statement electronically in time for cross examination. judge's ruling on objections or motions will have all the lawyers questions and all the witnesses testimony right at their fingertips. And then preparing for closing arguments, lawyers and easily Marshall all the evidence that supports their view of a particular factual issue.
I have one more technological suggestion, a somewhat more radical one, but one I think would be eminently worthwhile. consider for a moment Family Law, landlord tenant law, let it comes in these and some other fields are often poor or middle class people with little or no money to hire a lawyer. What's more, in many cases, they don't need a lawyer specialized skills. These generally are not complicated matters. They often do not really require a lawyers expertise or judgment. All the parties often need is a basic understanding of where to go, and what to do, what forms to fill out where to deliver and file them and the like. But today, they either have to pay a lawyer for this information, or to try to get it from already overloaded court personnel or deal with written explanations that can be confusing and intimidating. And this hurts not only the park case. It also burdens the courts, which have to deal with ill informed and unprepared pro se litigants. And it injures the image of our judicial system, which is seen as inaccessible and unfair to those who cannot afford legal services. Some courts, however, are working to find an answer to this problem. Again, in my home state of Arizona, for instance, we're pretty sophisticated out there and cow country.
The courts have introduced something called Quick court, an automated system that gives people legal information and helps them complete certain time consuming documents. It uses a touch screen, along with audio, video and graphics to give people information on uncontested the courses, landlord tenant problems, small claims, alternative dispute resolution, and other relatively simple topics. The directions are written at a fourth grade reading level, which by the way, I think jury instructions should be as well. They are available in both English and Spanish. The system even has a legal dictionary to define terms the user doesn't understand. The computer explains things, it asks the right questions, and ultimately prints out a completed form and tells the person where to file it. Now as one might expect, this system does not take business away from lawyers, since most of its users wouldn't be able to hire a lawyer anyway.
Nobody believes that a machine can replace a trained professional, those areas where a trained professional is required. But in the simple things, that things that can be done by rote computers can do just fine. You may have already seen the rather sophisticated tax programs available on many personal computers. There are also programs that can help you draft simple wills. In narrow, well defined simple areas of the law, which fortunately includes many of the areas in which individuals, as opposed to businesses routinely need assistance. computers can do an excellent job. And by making the system more accessible, by helping realize our goal of a civil justice system available to all they can increase public satisfaction with the system. And with all those yes, even including lawyers who work within it.
Besides technology, I think we can also turn to plain common sense and creative problem solving. To begin with, I think we can find broad agreement on the need to create what has been called the multi door courthouse. I hope judge Kessler, talk to you about this this morning. Because she has presided over one such experiment here that has been enormously successful trial we all know is a notoriously expensive and arduous way of resolving disputes. Accordingly, not all courthouse doors to lead directly into the courtroom. Instead there should be alternate routes, options, including such innovations as early neutral evaluation, mediation, negotiation, arbitration, many trials and summary jury trials. To be sure, we should not deny people their right to full trials. But at faster, cheaper, and less intimidating means of resolving disputes are available, Linda gums will avail themselves of them. And to the benefit of all, the plaintiffs seeking redress can be compensated earlier. By not having to wait years to get to trial, the defendant benefits as well because less is spent on the defense and repose comes more quickly. quick movement toward an ultimate resolution or a mediators influence can push the parties towards settlement or toward making the dispositive motion that will end the case.
At the same time that the courts in the bar explore alternatives to litigation, we have to continue reforming the traditional approach as well. In particular, discovery has been a great source of expense delay, and for attorney and client alike irritation. In a recent seven circuit survey 94% of all attorneys responding thought that instability was most prevalent in the course of discovery practice, it seems clear that discovery is not doing what it was designed to do. While it consumes more and more time and resources, it appears to be contributing less than less to our system of justice. No one proposes doing away with discovery. But it is I think we can all agree a dysfunctional part of our legal system today. One that warrants attention and reform, reasonable limits on discovery and market based incentives, a sort of paper question approach, merit serious consideration.
Finally, let me turn to the one word that's too often overlooked in discussions of reforming the civil justice system. The word civil if there's one thing on which we all should be able to reach common ground, it is the need to put civility back into our profession, and a National Law Journal study, over 50% of the attorneys surveyed use the word obnoxious to describe their colleagues. Practice in the 90s were told promises to be nasty, brutish, and for some short, it's no wonder that magazines have run articles entitled lawyers law is not a happy one. I believe that the justice system cannot function effectively. When the professionals charged with administering it cannot even be polite to one another. stress and frustration drive down productivity and make the process more time consuming and expensive. Many of the best people get driven away from the field, the profession and the system itself, lose the steam in the eyes of the public. We speak of our dealings with other lawyers as war or a battle. And we seem to act accordingly.
Justice Holmes, who was no slouch of an advocate, believe that a lawyer can try a case like a gentleman or a gentle woman I would add without giving up any portion of his or her energy and force. Hemingway use the vernacular guts he told us His grace under pressure. The common objection to civility is that it will somehow dis serve the client. I see it differently. In my view, instability disturbs the client because waste time and energy time that is built to the client at hundreds of dollars an hour perhaps an energy that's better spent working on the case than working over the opponent. I suspect that if opposing lawyers work to calculate for their clients, how much they can save by foregoing what's been called Rambo style litigation in money and frustration. Many clients, although certainly not all, would pass on the pyrotechnics and happily pocket the difference. It is not always the case, the least contentious lawyer loses. It is enough for the ideas and the positions of the parties to clash. The lawyers don't have to.
Now the bench and the bar have begun to address the issue of professionalism and lawyer-lawyer relations. codes of ethics and professional conduct are good starting points and no doubt necessary. But they focus on what a lawyer should not do rather than on teaching lawyers what they affirmatively ought to do. More recently, many jurisdictions have created so called civility codes, unenforceable guidelines that give the basics of common professional courtesy. Unfortunately, civility is hard to codify or to legislate. discourtesy is notoriously subjective. You know what when you see it, and assessing is somewhat akin to asking a pair of fighting fourth graders who started it more important without a fundamental change in attorney conscience. Even the best codification of civility can be converted into just another weapon. as lawyers club each other with accusations of instability, civility becomes to extend the war metaphor, still more, just another battleground. The rediscovery of civility must begin and many places. Many people have to make it part of their jobs.
Law schools should teach by deed as well as by word that it is possible to disagree without being disagreeable. Judges should keep a watchful eye on the behavior of lawyers who practice before them, and use their power of moral suasion. Well as the lawyers natural desire to stay on the judges good side, to make sure that basic norms of professionalism are followed. senior partners should remind their younger colleagues that even if some combative tactics may seem to yield short term benefits, they will in the long run, redound against them, and will eventually tarnish the reputation of the entire firm.
I have great hopes for our civil justice system. We lawyers are heirs to a proud and a distinguished legacy. at the convention, the Constitutional Convention in 1787, 33 of the 55 participants were lawyers. And when it proved necessary to drastically revise that document after the Civil War, once again, lawyers were in men were the dominant force 13 of the 15, drafters of the 14th amendment were lawyers. We've served our country well in the past. And I think we can continue to serve at well today. But we cannot serve it. By going on with business as usual.
We must recognize that there are serious problems in our justice system. And we must work together to fix them. With the combined intelligence, education and goodwill that I know exists within the legal profession. I'm sure we'll be able to do it. But only if we find the common ground. Only if we pull together in the same direction. That's what all of you are trying to do here today and at this symposium. And I wholeheartedly applaud you for that effort. Thank you.
Host
Justice O'Connor. While we in this conference, I've been concerned with the present, you've required us in your remarks to become involved in the future. And most importantly, you've reminded us of the necessity of common sense and the necessity of common courtesy, being civil the woman mother, it continue to lead and we continue to look you for the right.