Management, access to justice and the State Bar
By Howard B. Miller
President, State Bar of California
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| Howard Miller |
In the book of Exodus Moses’ father-in-law Jethro, concerned about the burden on Moses as the sole judge of his people, advises him:
“ …thou shalt teach them ordinances and laws, … thou shalt provide out of all the people able men, such as fear God, men of truth, hating covetousness; … And let them judge the people at all seasons: and it shall be, that every great matter they shall bring unto thee, but every small matter they shall judge: so shall it be easier for thyself, and they shall bear the burden with thee. If thou shalt do this thing, and God command thee so, then thou shalt be able to endure, and all this people shall also go to their place in peace.” (Exod. 18:20-23, KJV)
Moses’ docket was crowded. Jethro was asking Moses to make a management decision to assign judges to provide access to justice.
Even in the wilderness, and faced with daily threats to their survival, the people demanded the mechanisms for justice. In their time those were simpler. The group was smaller and knew each other and could judge credibility based on personal knowledge. There was no need for courthouses and no issue of the cost of e-discovery or of legal fees.
But the fundamental problem is the same. How does any society provide access to justice to its people?
There are three basic issues involved: fairness, time and cost.
Thinking like a lawyer
Since Christopher Langdell at the Harvard Law School in 1870 introduced with a question the dialectical case method (“Mr. Fox, will you state the facts in the case of Payne v. Cave?”) thinking like a lawyer — and succeeding as a law student — has come to mean being able to find the most issues and make the most imaginative arguments on appellate issues.
Even today, law students do not get “the whole case,” which would be the file from the moment a client consulted a lawyer. The “whole case” file would provide materials to view the matter from the client’s perspective, and include a focus on cost and time to resolution, which are critical — often the most critical — issues for clients. And so as lawyers we suffer intellectual hypertrophy. We are enormously skilled in argument, for the most part focused on procedural and substantive fairness, but only learn about issues of cost and time through experience and in a painful and ad hoc process. Or to use a relevant word, we have no training in management.
Management and access to justice
Access to justice has become a priority for the legal profession. We talk of it in the context of providing legal services and pro bono help. But the cost and time of justice is also an important element of access. Every legal procedure that costs more than it should — that is inefficient — limits access to justice. It does so by requiring more resources than should be needed for that matter. Every case in court that takes more time than it should because outdated and inefficient procedures denies access to justice to those who suffer delay in their access to courtrooms. Every part of our profession has to refocus more of its attention on these issues of management and realize that inefficiency and excess cost and time are a denial of justice. As lawyers we have to examine the way we practice and the positions we take on changed procedures that have the potential of helping our clients through better management.
The State Bar
Physician heal thyself: it is not only lawyers but the State Bar as an institution that has an obligation to be well managed. In important respects we have not been. We suffered an inexplicable $675,000 embezzlement undetected over an eight-year period. In looking at that process, we have found still other failures in our internal controls. We have hundreds of cases in our Office of Chief Trial Counsel that take more than a year between investigators concluding charges should be filed and the actual filing of a Notice of Disciplinary Charges. I can assure you that we are acting to deal decisively with those and other issues.
Payne v. Cave, by the way, was a 1789 English contract case that at the time decided an auctioneer’s request for bids is not an offer that can be accepted by the highest bidder. We now live in the age of eBay. That is the age the legal profession must join.