Colloquium: The Federal Judiciary: Essays from the Benc

Lambros, Thomas D.

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American Advocacy - Foundation of the American Dream

Indiana University Bloomington Maurer School of Law

Indiana Law JournalVolume 52 | Issue 1 Article 6Fall 1976American Advocacy - Foundation of the AmericanDreamThomas D. Lambros*United States District Court for the Northern District of OhioFollow this and additional works at: http://www.repository.law.indiana.edu/iljPart of the Courts Commons, and the Judges CommonsThis Colloquy is brought to you for free and open access by the Law SchoolJournals at Digital Repository @ Maurer Law. It has been accepted forinclusion in Indiana Law Journal by an authorized administrator of DigitalRepository @ Maurer Law. For more information, please contactwattn@indiana.edu.Recommended CitationLambros, Thomas D. (1976) "American Advocacy - Foundation of the American Dream," Indiana Law Journal: Vol. 52: Iss. 1, Article 6.Available at: http://www.repository.law.indiana.edu/ilj/vol52/iss1/6American Advocacy - Foundation of theAmerican DreamJUDGE THOMAS D. LAMBROS*We hold these truths to be self-evident, that all men are createdequal, that they, are endowed by their Creator with certainunalienable Rights, that among these are Life, Liberty and thepursuit of Happiness.The Declaration of IndependenceFor two hundred years the United States of America has proudly advancedthe ideals set forth in the Declaration of Independence. These ideals havebeen carried forward by many groups of Americans throughout ournation's history. However, one group of Americans more than any otherhas consistently sought to fulfill these ideals in the face of perpetualconflict, the American advocates. Having championed America's honor fortwo hundred years it is only proper that in this bicentennial year Americahonor her champions.It has been said that the history of all society could be written as achronicle of wars and of trials, for such events constitute the most dramaticof confrontations between men.' The courtroom, however, is a forum ofperpetual conflict and thus surpasses even the battlefield in the scope of itsinfluence upon men and nations. The courtroom, indeed the entirejudicial system, is the vehicle by which the advocate transforms idealisminto reality.The American judicial system has recently been subjected to a greatdeal of criticism. Some of our leading jurists have discussed abolishing thecivil jury system, increasing the use of referees, special masters andadministrative judges in place of trial judges, and restricting access to theCourts for certain cases.2 These recommendations have been propoundedin the interests of expediency, efficiency and economy. Such recommenda-tions, however, are result oriented and discount the inherent values to bederived from the judicial system as a process in and of itself. The judicial*United States District Court for the Northern District of Ohio.1B. AYMAR & E. SAGARIN, A PICTORIAL HISTORY OF THE WORLD'S GREAT TRIAIS at vii(1967).2See, e.g., H. JACOB, JUSTICE IN AMERICA 128-41 (2d ed. 1972); Burger, Annual Report onthe State of the Judiciary, 62 A.B.A.J. 443 (1976); Chief Juctice Burger Proposes First StepsToward Certification of Trial Advocacy Specialists, 60 A.B.A.J. 171 (1974); Hogan, SomeThoughts on juries in Civil Cases, 50 A.B.A.J. 752 (1964); Ross, The Civil Jury System, DEF.RESEARCH INST. 5 (1971). See also The Federal Magistrates Act of 1968, 28 U.S.C. §§ 631 et seq.(1970), as amended Pub. L. No. 94-577,90 Stat. 2729 (Oct. 21, 1976) which gives ajudge power toappoint magistrates to determine certain matters).INDIANA LAW JOURNALsystem serves valuable functions that transcend the consequences ofparticular trials and decisions.The trial is itself a medium of communication which instills respectand confidence in our democratic society through individual participationin the judicial process. Our system is premised on the individual's right tohis day in court, represented by counsel of his choice, and judged by a juryof his peers. The responsibility for investigation, development, andpresentation of propositions of law and fact is placed on the partiesthemselves because they are most strongly motivated to bring all materialevidence and argument to the Court's attention.3 This individual partici-pation is essential to the growth and improvement of not only our judicialsystem, but our entire nation. In words attributed to Alexis de Tocqueville:[T]here can be no universal respect for law unless all Americans feel that itis their law - that they have a stake in making it work. When largeclasses of people are denied a role in the legal process - even if that denialis wholly unintentional or inadvertent - there is bound to be a sense ofalienation from the legal order. .... 4The trial court provides the forum for the interaction between citizens andgovernments which is the ultimate prerequisite to a democratic society.Only this forum, with its historical, professional and ethical heritage, canfully instill in litigation participants the duties they are bound to dischargetoward society and the part which they play in government. Further, eachof the participants, judge, jury, advocate and litigant, plays a vital role incommunicating the responsibilities and obligations manifested in the trialforum to the public at large. It is this individual participation andcommunication which adds the popular element to the judicial processwhich prevents it from becoming isolated from the general public.There are criticisms currently directed at our judicial system, but theseare selective criticisms which isolate and focus upon particular elements ofour judicial process. The judicial system must be evaluated and appraisedin its entirety. The usefulness of a system is not governed by its age orcomponents, but by its ability to adapt to the needs of the people whoresort to it throughout the ages. The ability of our judicial system to servethe needs of Americans has been demonstrated for two hundred years.Although criticisms must be evaluated and reforms projected wherenecessary, great caution should be exercised in implementing any changesin our judicial system which would have the effect of limiting individualparticipation in the judicial process.The pivotal figures in our judicial system are the advocates, for they arethe cornerstone upon which the judicial system is built. The role of theadvocate is best expressed in a quote attributed to Justice Charles Desmond:3Teitelbaum, The Advocates Role in the Legal System, 6 NEw MEx. L. REv. 1, 12 (1975).4Kaufman, A Fair Trial - The Essence of Justice, 51 JUDICATURE 88 (1967).[Vol. 52:129FEDERAL JUDICIARYI think we are keepers of a dream of our time, one of the oldest, the bestdream for the human race, a dream that was old when the world wasyoung, a dream that will never die, a dream of open courts dispensingequal justice, the dream of peace and good will through law.5The American advocates have fulfilled this role admirably. They are theinstruments by which individuals peacefully assert their rights and resolvetheir conflicts. This duty of the advocate, to preserve individual rightsthrough the enhancement of justice, is basic to the survival of ourdemocratic system. As Erkind said in his defense of Thomas Paine:From the moment that any advocate can be permitted to say that he will orwill not stand between the Crown and the subject arraigned in the Courtwhere he daily sits to practice, from that moment the liberties of Englandare at end.6Through the efforts of the advocate our adversary system of justice hasemerged as the fairest, most equitable judicial system in existence today.Although all innovation is not progress, the advocate has been innovativeand creative and has enlarged the meaning of freedom and respect for theindividual. That the end purpose of law is not to abolish or restrain, but topreserve and expand freedom is an ideal which has become reality. TheAmerican advocate has consistentjy accepted the challenges of each decadeand has helped mold the law to not only satisfy the demands of each era,but to also form a foundation for posterity to build upon. The advocatehas fulfilled his obligation to reflect the feelings of the public. In additionhe has also met his responsibility to assist the public in understanding thelaw and to improve social conditions through the law.There are critics of the role the American advocate plays in our judicialsystem. Many of these critics have suggested.that our system adopt certainaspects of the English solicitor or barrister format. However, anymultitiered system of representation which adheres to the philosophy of aspecialized trial bar creates a "buffer" layer which restricts the directparticipation of the client in the judicial process. Such a specializeddivision of trial attorneys removes the personal identification and involve-ment between clients and counsel which is so vital to the American judicialsystem.Those who suggest that we should borrow from England's system ofsolicitor and barrister which abolishes jury trials in most civil cases needonly look at the relative positions of America and England as models offree societies. There is no contest; America excels without all the pompand circumstance of the English system.The most prominent of these critics is Chief justice Warren Burger. In5Address by Campbell Thomal, Chief Justice, Supreme Court of Florida, AmericanAcademy of Trial Lawyers, in Miami Beach (July 30, 1965).6Rex v. Paine, 22 Howell's State Trials 358, 412 (1792).1976]INDIANA LAW JOURNALadvancing the view that we must take positive steps to promote qualifiedcourtroom advocacy skills, he stated that "our failure to do so has helpedbring about the low state of America trial advocacy and a consequentdiminution in the quality of our entire system of justice." 7Although I concur that improving the quality of advocacy and in turnour system of justice is the continuing challenge of society and theorganized bar, I cannot embrace the Chief Justice's view that American trialadvocacy is at a low state nor his view that the quality of our entire systemof justice has diminished. The views of the Chief Justice imply thatlawyers and our system of justice have seen better days. Not solAmerican justice, developed and nurtured by a most democratic andindependent system of advocacy, has become a pattern for others to follow.It is America's most stable force. The judicial travesties of Scottsboro' andSacco-Vanzetti 9 have darkened our past, but through the excellence of ouradvocates and jurists American justice has emerged from the "dark ages" ofdecades past. There is every reason to assume that our system shallcontinue to improve without being hampered by needless regulation andcertification of our advocates as suggested by the Chief Justice as a meansto improve the system of trial advocacy.' 0The American advocates have improved our judicial system and thequality of advocacy presented to our courts by improving themselves.Through their obligations to client, court, and community the advocateshave subjected themselves to the highest standards of professional responsi-bility and ethics. Further, the American advocates have consistentlyendeavored to raise these standards. Such self-discipline is infinitelypreferable to the establishment of a specialized division of trial attorneys.This self-discipline requires the most dedicated of individuals, for theadvocates' obligation to improve our system of justice is one which neverends. On the whole our advocates have fulfilled this obligation admirably.Although their record is not unblemished, it nonetheless reflects twohundred years of fine service. Our advocates have met the tests of time andcomparison. They have excelledl They are the bestl Perhaps theirqualities are best summed in the words of Harrison Tweed:I have a high opinion of lawyers. With all their faults, they stack up wellagainst those in every occupation of profession. They are better to workwith or play with or fight with or drink with, than most other verities ofmankind."7Chief Justice Burger Proposes First Steps Toward Certification of Trial AdvocacySpecialists, supra note 2, at 172.6See generally Norris v. Alabama, 294 U.S. 587 (1934); Powell v. Alabama, 287 U.S. 45(1932).9See generally Commonwealth v. Sacco and Vanzetti, 261 Mass. 12, 158 N.E. 167 (1927)."°See Chief Justice Burger Proposes First Steps Toward Certification of Trial Specialists,supra note 2, at 6."Speech by Harrison tweed accepting the presidency of the bar of the City of New York(May 10, 1945), quoted in E. GERHART, QUOTE IT! 383 (1969).[Vol. 52:1291976] FEDERAL JUDICIARY 133American advocacy has transformed the ideals of our heritage intoreality and thus set the course for fulfillment of the American dream: Life,Liberty and the pursuit of Happiness. The American advocate is thestandardbearer of our dream.

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American Advocacy - Foundation of the American Dream

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