Expert Opinion

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.

Toward the end of last year when I first read IAALS’ report, Change the Culture, Change the System: Top 10 Cultural Shifts Needed to Create the Courts of Tomorrow, I had feelings of both trepidation and hope. It said a lot of things I have often thought about, but have not always spoken up about.

I recently attended IAALS’ Fourth Civil Justice Reform Summit and served as a faculty member on several panels. It never fails that I come away from these gatherings with more ideas. I began to take notes on this question—what can we do to effect the changes to the Federal Rules of Civil Procedure?

When I was first contacted by IAALS in early 2014 about the possibility of replicating the methodology used to investigate the lived experiences of self-represented litigants in three Canadian provinces, I was thrilled. I had spent the previous two years conducting this (qualitative, interview-based) research and our results were published in 2013. While the data revealed many multi-layered complexities, diversities, and variables in the experiences of those without counsel, it underscored one new reality.

Rebuilding justice. This is an awesome charge. And it is one that IAALS has embraced since its beginnings in 2006. IAALS was started as an attempt to remake the American legal system. While our system has many virtues, it is inefficient. It is unequal. Fundamentally, it is imperfect. But we are a country of laws, and the legal process is the thread that holds together our enviable conception of democracy. Therefore, the desire for a perfect system of justice is a natural outgrowth of that foundational goal of a more perfect union. But justice is more than systems. Justice is about people. Justice is about hopes and dreams and goals. Justice is about dignity. This is why the idea of rebuilding justice is so awesome, so ambitious, and so necessary.