When I was asked to do this, I readily agreed to be here even though this is a very busy week for Judge Aspen and me. But the issue is very, very important to us. I am about to be Chair on Monday of the Section of Litigation of the American Bar Association which is the ABA’s largest section with 60,000-plus members. The responsibilities that all of us in the leadership of the ABA hold are very, very important to us as individuals, to our law firms, and to the profession in general, but I think at this point in time, they are more important than they have ever been because the perception of lawyers in America is at its lowest point yet, at least according to some data that I will share with you in a moment.
I agreed to be here because as a young man in 1974, I became a law clerk to a man who has remained my mentor and dear friend, Phil Corboy. I started as a clerk in his office and became a lawyer in 1976. One of the first men I met in the practice in DuPage County was Roger O’Reilly. Another man who comes to mind in a like context was Leonard Ring in Chicago. Those two men treated me with dignity, with respect, with courtesy, even though, you know, I’m this puppy lawyer who is clueless about where he is going with anything.
I often remember that. I remember that in particular about Roger because I was exposed to him on many occasions, both as opposing counsel on some cases, but also when he did have the good fortune to wake up and become a plaintiff’s lawyer. I co-counseled with him on a case or two and collaborated with him in thinking about how to pursue some litigation. At all times the man was a constant, and the constant always was that, notwithstanding his Irish demeanor—which some of us by heritage have and do get ruffled every now and then—Roger treated everyone with the approach and the presence as a lawyer that I think in many respects has been lost by those young folks in law school and those coming out.
I tell people a story about something that occurred during the Rachel Barton trial. The jury is out so I am at a loss for what to do, and I am just wandering through the hallways of the Daley Center and I happen to go into a courtroom where I saw a motion being heard in front of one of the judges I know. There were two young lawyers there with their clients, and these two young lawyers were being as mean-spirited, as discourteous, as improper in terms of their conduct as I could imagine a lawyer to be, and I was embarrassed. I was embarrassed for myself, I was embarrassed for the judge who was tolerating the behavior (and who heard from me about it afterwards), and I was embarrassed for those lawyers.
What was amazing to me, though, was that those clients were fueled by what they were hearing, which in many respects is one of the problems with what we are seeing in a project that I have commissioned as part of my work with the Section of Litigation. I recently endowed a project, the results of which will be turned over to the ABA. I am doing it myself so I can control it, and I am doing it myself so I don’t get stuck in the ABA bureaucracy. As much as I think of the ABA, trying to get it to make a decision, at times, is like trying to turn the Titanic.
But very importantly, I have retained the people who do focus group work in my cases to engage in a national study of the perception of trial lawyers in America, and the results of that study will be revealed at a Town Hall Meeting at Faneuil Hall in Boston in April 2002, with a panel that will be moderated by Arthur Miller who recently agreed to do this for me. The work is proceeding in major markets. Currently we have conducted focus groups in Boston, New York, Chicago, Dallas, and in L.A., and I have a meeting on Friday to consider whether we need to expand to some of the smaller markets.
These folks are spending considerable time with members of the community for the sole purpose of debriefing them about lawyers and what people think about lawyers. While it doesn’t come as a surprise to anyone in this room that the perception of lawyers in the profession is low, the bigger question, of course, is what to do about it? I agree with Judge Aspen that we are on the right path, but we are far from home.
I do believe that what we are seeing from the study—one of the things that is very interesting to me and gives me the one ray of hope—is that while people think poorly of lawyers as a general proposition, they like their own lawyers, which tells me that we can ultimately deal with this if we work from the bottom up or top down, depending upon your view.
I think where the rubber is going to meet the road on this issue is within the law schools. I think it’s going to meet the road when Justice Thomas swears in new lawyers and instead of just giving them the laudatory remarks of congratulations, we continue to remind them of their obligations to themselves, to the community and to our profession.
What is emerging the study thus far is that lawyers need to individually pledge to themselves—not simply as an association or as part of the trial bar of the circuit court or the Northern District or elsewhere—but they need to pledge to themselves to follow these standards of civility. Every time a standard of civility is violated, it fuels the misperception of who we are, what we do, and what our roles, responsibilities and obligations are.
It is not enough to certify, in my humble opinion. It is obviously a great start, but it is not enough to certify to the court. You need to certify this to yourself, and you need to implement this in your practice every single day. These are things that I believe need to take place in the law schools. These are things that I believe need to take place in the law offices.
The Texas Lawyer’s Creed, a mandate for professionalism that was adopted by the Texas Supreme Court late in 1989, coincided with Judge Aspen’s work. What so many people seem to think, though, about civility is that it’s limited to how we deal with one another and is just a matter of getting along. What has been lost in the discussion, it seems to me, is the fact that civility transcends our dealings with each other and speaks to our relationship with the public and how the public perceives us.
I’m not naive enough to believe that there is anything that I can do about some of the bad practices that we all see. I am disheartened by what I see as a lawyer. I don’t mean to be self-laudatory or sound corny, but I am very proud to be a trial lawyer. And yet if you read in any paper about someone talking about a trial lawyer, it’s never flattering. In many respects, frankly, I think that the plaintiff’s, the personal injury trial bar, are responsible for many of the negative feelings that are out there. A New York lawyer, one of the big-time asbestos guys is now into the broken hip prosthetic cases advertising on TV: "Did you get a recent operation on your hip? You might have a case. Call us." That undermines us all.
I know this lawyer. I don’t know him as a friend, but if he were here today, I would say it to his face: I think that that kind of publicity embarrasses us, and I think it demeans us as lawyers. All of this transcends the personal injury trial bar. I am the first personal injury lawyer in 25 years to head the ABA’s Section of Litigation. The last one was my pal, Phil Corboy. And yet every lawyer within this group would refer to him- or herself as a trial lawyer, and they would say it with pride. Yet if you tell someone in public you are a trial lawyer without explaining to them, "but I’m not that kind of trial lawyer," you worry about what they will think of you. There is something very wrong with that.
I assure you, I make no apologies for representing a Rachel Barton or representing, as I do, families in every pending commercial aviation disaster in America, or the young woman I met the other day who had both legs chopped off by a drunk driver. I am not embarrassed to represent those people. I am very proud of it, and I ought to be proud of it.
The law students—and I don’t know where else to begin, but with the law students—need, instead of a day on this subject, they need a course on this subject, or maybe they need to sign into this as part of their certificate of graduation.
Part of the study that we are doing will develop a multi-point strategy that I think will touch on some of these things. I think that it will recommend that we turn up the volume on this very subject and take it down a notch.
What we are going to find is that lawyers need to learn more about their obligation to the legal system. They need to learn that they owe an obligation to the administration of justice to act with personal dignity and integrity and professionalism, like Roger O’Reilly did. They need to know that their clients are not chattel; their clients are not the key to or the paycheck for the next meal.
In my office, I tell these young lawyers—and I’m surrounded by them, I’m surrounded by a lot of students—I’m one of those folks who believes that every law student I know needs a job in the summer, and we are willing to give one to them. They need to learn their clients. They owe them an allegiance for their intelligence, for their learning, for their industry, and they need to know they need to pursue these cases with appropriate means.
I was very thankful for Attorney General Ryan’s remarks. He and I are on the other side of the Illinois tobacco fee litigation fight. I have dealt with lawyers in his office. I’ve dealt with the lawyers in the outside firm that his office has hired. These men and women have been nothing but courteous and forthcoming. We have our disputes, but as one lawyer told me when I was a young man, this is not nuclear war.
Yet those two lawyers I saw after the trial were engaged in a nuclear war. And when the public sees us engaged in a nuclear war, they think that’s how we ought to be rather than being there to facilitate the resolution of a matter.
Lawyers need to know that they have responsibilities to each other, that when we deal with each other, that we are there to cooperate, we are there to be candid. We are not there to allow our ill feelings to dominate how we handle the case. They should concentrate on matters of substance.
On my side of the aisle in litigation, we are always out to try to skin the cat: that is to say that if I can resolve a case—and I’m talking about the business of being a lawyer—if I can resolve a case without a lot of work and without a lot of rancor, that goes a lot better for me as an administrator of a law firm than if my lawyers are in court fighting. Yet, young lawyers think that they need to fuel these things, and we need to educate them that they can disagree without being disagreeable.
Then finally, I do believe, as Judge Aspen does—and I know he does because I have practiced there—that lawyers have responsibilities to the court and the court has responsibilities to the lawyers. We have to have that exchange and deal with each other in the public light. If we don’t do it the right way, this profession that we all hold near and dear to our hearts will continue to deteriorate.
I am hopeful that these things can be changed if young lawyers learn to choose not to allow other people to dictate their mindset. They can do that and they can learn to practice with fine role models—and Roger O’Reilly was a role model. I have not had the privilege of dealing with Roger’s children at all, but for those of you who know them, I will wager you that they are very much right out of the cloth of their dad. He was the consummate practitioner, and I was very proud to be his friend.