Expert Opinions

IAALS has been instrumental in changing the landscape of Colorado’s civil pre-trial practice. It all began with Becky Kourlis’ provocative and influential speech at the American College of Trial Lawyers annual meeting in March 2007, where she outlined the disturbing trends and challenges facing our justice system. Becky’s talk was the seed that grew into the ACTL Task Force on Discovery and Civil Justice, which was tasked with taking a hard look at these problem areas and recommending improvements. IAALS provided a wealth of information, experience, necessary guidance, and high credibility to the Task Force.

IAALS’ Honoring Families Initiative recently released two new reports focused on the experiences of self-represented litigants in our family court system: Cases Without Counsel: Research on Experiences of Self-Representation in U.S. Family Court and Cases Without Counsel: Our Recommendations after Listening to the Litigants.

One of the reasons that the American experiment succeeded was the genius of our Founding Fathers in establishing a three-part system of government with an independent judiciary. Without an independent judiciary, we have just one more political entity, subject to the control of the majority, untethered from the Rule of Law, and susceptible to bullying.

Deans of law schools throughout the nation are faced with unprecedented challenges in legal education: significant restructuring in the legal employment market, high student debt loads, dramatic declines in applicants for admission, rapid technological advances, students who learn in new ways, shifting accreditation standards, national ranking systems, and concerns from the bench and bar about the preparedness of new lawyers. Against this background, it is so critical that deans have a forum to interact with each other, practitioners, judges, a variety of legal employers, and the many parties interested in and committed to the future of legal education.

Lawyers reach out to me from time to time to give me a dose of reality. Recently, a trial lawyer spoke to me of a few cases that had gone awry—and are examples of larger issues that plague our civil justice system. She did not give names, or case numbers, or jurisdiction, so if any of you reading this recognize yourselves, be assured that I do not.

When the Supreme Court of Missouri in January 2008 adopted a rule authorizing The Missouri Bar to create and administer the state’s first true judicial performance evaluation program, the state bar was faced with a very tight timeframe for implementation and a seemingly endless set of questions. How and where do we start? How should the evaluation be conducted? What form should the survey instrument take? What information should be considered by evaluators?

There is lots of talk about making changes in legal education at law schools. That's no surprise, law professors love to talk. If they loved practicing law, they'd be lawyers. Instead, ensconced in the ivory tower, safe from the perils of the real world, they leisurely debate what should happen to those poor souls (law students) who must leave the hallowed halls of law school, and actually go out in the world to practice law.

The use of social media by jurors is a growing problem. In response, California passed a state law in 2011 making violations punishable by contempt. Since then, such misconduct has only increased as jurors become even more technologically savvy and connected via smartphones.

It has been my honor to participate in IAALS’ Quality Judges Initiative as a member of the O’Connor Advisory Committee. Much of my time serving as President of the American Bar Association in 2008-2009 was devoted to efforts to assure adequate funding for the judicial branch of government and to improve judicial selection in order to assure fair and impartial courts; service on Justice Sandra Day O’Connor’s committee was a logical following step after my term as ABA President ended. As a member of the O’Connor Advisory Committee, I have seen firsthand how QJI brings focus to the national debate on judicial selection issues and challenges. We have members who give perspective to the issues from various diverse backgrounds in order to come up with workable recommendations on judicial selection and judicial performance evaluation.

Ten years ago, few would have predicted that IAALS would have such an impact on the legal system. The world wasn’t exactly clamoring for another legal think tank, and aside from a few visionaries in Denver, no one foresaw the need for an organization dedicated to the improvement of the legal system rather than partisan advocacy. Yet ten years later, IAALS has succeeded not only in prompting a conversation about how cases get litigated but in touching off a broader reexamination of a number of assumptions about attorney control over litigation, discovery, and the relationship of the legal system to the people it serves.

In 2012, when I first started researching Splitopia, my book on today’s good divorce, I assumed there were dearth of good ideas around for helping families transition out of marriage smoothly. It would be my job, I decided, to develop new thinking for the age-old problem of marriage’s end. Upon further investigation, I discovered that many legal professionals, reformers, and mental health practitioners did have good ideas for helping adults and children navigate this difficult transition, but they weren’t communicating them adequately between disciplines and across states, let alone to divorcing families. I would start a national divorce communication program, perhaps affiliating with a think tank in Washington, D.C.!

I spent half my legal career as a civil trial lawyer in New Hampshire trying all manner of cases in state and federal court and sometimes trying or preparing to try cases in other states and jurisdictions. I learned from some great lawyers and mentors over those years. They viewed a jury trial not as a failure of the system but as an integral part of American justice. They tried many of their cases with four or five depositions, twenty key exhibits, an expert or two, and a theory of the case. Justice was almost always served. The lawyers I admired understood the probing value of focused, incisive cross examination, the transformative power of a witness's solemn oath, the value of the courtroom's sterile unfamiliarity in a search for the truth, and the capacity and integrity of juries to render fair verdicts. They viewed trial lawyering as a craft with a noble purpose and never viewed discovery as an end it itself.