President's Page--Together We Can Make the Difference-Historical Perspective, Part 2
Last month I wrote from a historical perspective on certain challenges our profession is facing: overcrowding, the unauthorized practice of law, and loss of direction. This month I continue that theme, using a compendium of quotations from the first one-third of the 20th Century.
Many lawyers believe that our profession now faces unprecedented criticism, but our predecessors faced criticism which was just as severe. Here are some of their comments.
I know it has been somewhat the fashion of late to decry the lawyer and belittle the profession. Even the lawyers themselves do so.
1902, Mark Norris, President of the Michigan Bar Association
The lawyer, unfortunately, is looked upon as a sort of incubus on society by a great many people in every community.
1905, Judge Willis B. Perkins of Grand Rapids
In our country...at the time when the profession was first taking more or less definite form, there were violent popular prejudices against the lawyer.
1923, Henry M. Bates, Dean of the University of Michigan Law School
The lawyer must re-establish in the public mind that feeling of faith and confidence which has suffered so severely in recent years.
1931, Clifton G. Dyer of Detroit
No member of the profession is unmindful of the criticisms, flippant and otherwise, that have been aimed at members of the bar.
1936, Justice William W. Porter of the Michigan Supreme Court
The redundancy of the message is the message.
The McDougall v Schanz decision by the Michigan Supreme Court in July a year ago, interpreting "practice and procedure" in the 1963 Constitution and defining the Court’s rule making authority, is controversial. In 1921, William W. Potter of Lansing, then President of the Michigan Bar Association and later a Justice on the Court, commented on that era’s Supreme Court actions on rule making, in a different context.
As a result of this abdication by the Supreme Court of control over the principles of procedure and practice, it has permitted itself to be bound by statutory rules prescribed by the legislature, and, as a court, in this particular, has practically ceased to function.
It has chosen to follow statutory rules even at the expense of justice....
The recall, not of judges but of judicial decisions, has been frequently urged, and it, too, has been dignified by being made a political issue....[I]t is contended that the doctrine of stare decisis should be abolished by constitutional amendment....
President Potter then noted the excessive cost and delay in the justice system, a problem which continues today and which now fuels alternate dispute resolution.
Although it may be the duty of the lawyer to uphold the dignity of the bar and the honor of the court, he must be blind indeed who believes either that the courts are keeping abreast of the times or enjoy the confidence of the American public....[T]he average man is frequently compelled to submit to injustice, or to spend an unnecessarily large sum in order to vindicate his rights.
So great is public dissatisfaction with trial courts that, instead of being the objects of veneration and regard, they are avoided by everyone who has his own business interests at heart.
Every practicing lawyer is familiar with the suspicion with which courts are regarded....So general, widespread, and powerful has been the sentiment for judicial reform...that the chief justice of the Supreme Court of the United States is making an investigation and effort to simplify judicial procedure and dispatch business in the federal courts....
We must build up a sentiment which emphasizes trust and confidence rather than dishonesty, dilatoriness and chicanery...that the administration of justice may no longer be treated with derision and contempt...and that the administration of justice shall command the respect and admiration of the bar and of the public.
The judiciary is the one department of state which publishes no data bearing upon the efficiency of its work.
A few years earlier, in 1917, Professor John R. Rood of the University of Michigan Law School made this argument for the responsibility of lawyers to assure a cost efficient justice system.
Closing the doors of justice to the people closes the doors of business to the lawyer. The lawyers are responsible for the continuance of the system, are justly held accountable for it by the people, and suffer more from it indirectly than the public does directly. If the cost of prosecuting my lawful claims in the courts is more than the claims are worth, I am recompensed by the fact that the cost of prosecuting claims against me is also more than the claims are worth; and if I am a good and bold bluffer I win as much as I lose. But the lawyers, on the other hand, lose at both ends.
In 1921, Dean Bates warned the profession:
[T]he tendency everywhere is to avoid litigation, even in disputes which cannot be amicably settled, by referring such disputes to arbitration or confiding them to the determination of various administrative officers and tribunals. The "writing is on the wall"is plain.
Following are more comments by our predecessors.
The defects, and we must admit there are many, in the administration of justice, the laws’ delays and technicalities are gradually undermining the confidence of the People in the profession of law, and what is infinitely worse, causing them to lose respect and reverence for the law itself....[T]hat success in litigation is too often the prize of unscrupulousness, is a most corrupting influence in our national life.
1922, George E. Nichols of Ionia, President of the Michigan Bar Association
The expense and delays of justice present one of the serious questions which the courts and the American public are striving to solve.
[T]he public generally is criticizing and criticizing severely, court procedure at the present time. President Long in his address said never in the memory of the lawyers now living has there been such a general attack upon the procedure of the courts as there is today.
1926, Judge Arthur Webster, representing the Michigan Judges Association
For a long time there has been a smoldering resentment on the part of the people upon the way business is conducted in court.
1927, Judge Louis H. Fead, President of the Michigan Circuit Judges Association
1931, John H. Dunham of Grand Rapids
The redundancy of the message is the message.
In recent years, criminal activity, particularly from drugs and juvenile crime, is high. In 1922, Judge Charles E. White of Niles, President of the Michigan Judges Association, spoke on his generation’s perception of crime.
It needs no argument on my part to convince you that disrespect for government, law violations and wholesale crime is on the increase and demands the instant, careful and conscientious thought of all right thinking men....
The daily papers spread before you every morning at the breakfast table tell the tale of crime so abundantly that it no longer challenges your attention or curiosity. Whole communities have become so infested with this spirit that wholesale murder has been committed, and it is impossible to indict and prosecute those responsible for the outrages, to say nothing of convicting them....We exalt self, selfish interests and desires above the good of the state or nation at large....
Do we think it strange that, with this atmosphere surrounding them, so many of our boys and girls have come to disrespect and resent all restraint and authority and are fast drifting into lives of crime? This tendency must surely be checked or we must acknowledge that a free people are not competent to govern themselves.
The phenomenon of lawyers seeking trial publicity is not new. In 1926, Malcolm W. Bingay, a reporter for the Detroit News, spoke at the Annual Meeting of the Bar.
We have lawyers and judges who resort to motion pictures, they resort to flash lights, any opportunity to get to the head lines of a newspaper....I will say any judge [who] will permit any newspaper to take a flash light photograph in his court room is not worthy of his position. Any lawyer who will seek out a reporter to present his case before he presents it to the court is not worthy of membership at the Bar. You get it very often.
Our profession has whiners. In 1927, Louis H. Fead, President of the Michigan Circuit Court Judges Association, described his generation of whiners.
[B]y this time, we ought to be inured to the practice of counsel going round the corner and cussing the court. It is frequently the only relief they have.
Financial support for legal aid has a long tradition with Michigan lawyers. In 1936, Louis C. Miriani, then director of the Legal Aid Bureau of the Detroit Bar, said:
The chief support of any legal aid bureau should come from the legal profession. By giving such support the bar receives a reward in the satisfaction of having met a responsibility that peculiarly belongs to the legal profession; in the satisfaction of knowing that the rights of the poor are protected; and lastly, in the improvement of public good will.
The lawyers of that era were committed to help those in need. In 1936, the Legal Aid Committee reported on financial contributions by lawyers to legal aid.
In the City of Detroit, the lawyers contributed approximately $60,000...for the year 1935. Legal aid is not a competitor of the bar, but performs a service for the bar. To be effective it is essential that the bar lend its cooperation and advice to the work. For giving such assistance and support, the bar is constantly improving public good will and fosters the efficient administration of legal aid for worthy poor persons who need the active and sympathetic representation of the bar.
Z. Kay Fitzpatrick, the Executive Director of the Detroit Metropolitan Bar, has informed me that the actual sum contributed by Detroit lawyers in 1935 was $62,000. That was not a one time contribution; in previous years, Detroit lawyers also made substantial contributions to legal aid. With 1,421 Detroit lawyers in 1935, the average contribution was $44 per lawyer. Converting to current dollars, that is $528 per lawyer.
If every lawyer in Detroit today met the standard of the 1935 Detroit lawyers, the annual contribution by Detroit lawyers to legal aid would be $2.2 million. If every lawyer in the state met that 1935 standard, the annual contribution to legal aid would be $17.5 million. The lawyers of 1935 were crawling out of the Great Depression. Surely, we can do as well! The Access to Justice Development Campaign is ready to receive your contribution!
We are not the first to face our difficult challenges. The same challenges continue from generation to generation, without resolution. If we truly want to make a difference, we must confront our challenges boldly. We must persist until we overcome them. It starts here; it starts now. It starts with us.