By Howard B. Miller
President, State Bar of California
In his novel Bleak House, the former law clerk and legal journalist Charles Dickens describes a nineteenth century case in Chancery:
Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means…. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; … old Tom Jarndyce in despair blew his brains out … but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless.
Finally the case ends:
We asked a gentleman by us if he knew what cause was on. He told us Jarndyce and Jarndyce … as well as he could make out, it was over. Over for the day? we asked him. No, he said, over for good … presently great bundles of paper began to be carried out … We glanced at the papers, and seeing Jarndyce and Jarndyce everywhere, asked an official-looking person who was standing in the midst of them whether the cause was over. Yes, he said … and burst out laughing …
Do [we] understand that the whole estate is found to have been absorbed in costs … And that thus the suit lapses and melts away?
The lawyers, who understood that “costs” was a word of art that included legal fees, confirmed that was true.
It is our conceit in modern litigation that the Chancery practice Dickens describes is in the past. But as William Faulkner is always there to remind us: “The past isn’t dead. It isn’t even past.”
The ghost of Dickens and Jarndyce v. Jarndyce – the “Ghost of Chancery Past” – will be haunting the BP oil spill litigation. As the litigation “drones on,” there will be more than one Tom Jarndyce who blows his brains out as his life, family and business are destroyed while he has to listen to incomprehensible explanations for delay.
Delay, unnecessary complexity and cost are not only true of massive multidistrict litigation. An old friend, Dr. Richard Corlin, a former president of the Los Angeles, California and American medical associations, sent me the following in a copy of a letter he had written after being an expert witness in a medical malpractice case:
While the matter was of some consequence and obviously contentious, it was not complicated. The essential medical records to be reviewed constituted a stack of documents less than six inches high. The needed literature review by the experts could be done in less than three hours. The individuals involved and their lawyers and the expert witnesses and a neutral third party could have sat around a conference table and in two hours presented and discussed the entire matter and its background and allowed a fair conclusion to be decided upon.
As you can no doubt guess, that’s not what happened.
What happened was a three-week trial involving over 100,000 pages of documents being prepared, copied, re-copied and duplicated again. A judge, multiple expert witnesses, a bailiff, a court clerk, a court stenographer, jurors and alternate jurors, and I don’t know how many other supporting players were involved as were two lawyers on each side and three weeks use of a beautiful, wood-paneled courtroom.
I can now hear you, the practicing lawyer reading this, saying to yourself: “He just doesn’t understand.”
Why doesn’t he understand? Why do almost all clients, when it comes to time and cost of litigation, not understand? Because we won’t explain it? Because we can’t explain it? Or, frighteningly, because he and the clients may be right.
We need to develop an internal sense of a standard measure of legal waste and delay – I suggest the “Jarndyce.” Of course, the Jarndyce can never have the mathematical precision of the meter as the standard measure of length, or the kilogram as the standard measure of mass. But, to echo Justice Potter Stewart, as a measure of legal waste and delay, we know the Jarndyce when we see it.
The Jarndyce for lawyers is the letter that didn’t need to be written; the deposition that didn’t need to be taken; the three hours of cross examination when 45 minutes would do; the case that shouldn’t have been filed; the motions that served no purpose except to be made; the conferences and phone calls attended by four lawyers when one would do. For judges, the Jarndyce is the dozen lawyers sitting in the courtroom for an unnecessary quarter hour when an 8:30 a.m. court calendar doesn’t begin until 8:45 a.m. For court administrators, hard questions about why nine employees in a court system are necessary to maintain one courtroom; for appellate courts, why it takes 12 to 18 months to review trial court rulings on motions for summary judgment that involve pure legal issues on an established record, and after all should have had adequate briefs written the first time at the trial court level, to be reviewed in a matter of weeks by an appellate panel.
For many these will be shocking questions. Among lawyers perhaps they can only be asked by those who because of luck and good fortune have “lived to comb grey hair” and feel secure in the legal profession. But they do need to be asked – and answered.
Why? I have discovered in the time I’ve spent talking with legislators this year, that many, though they don’t openly say so and only communicate it with pauses, averted eyes, awkward responses and circumlocutions, believe the legal system exists for the sake of lawyers. In their gut, they know the concept behind the Jarndyce, and because of that we have so much trouble convincing legislators to adequately fund the legal system.
It is not only legislators. Outside the litigation system we have lost the public. Accountants now do much of tax work; those in the insurance industry, estate planning; and in the real estate industry, through title and other companies, a great deal of real estate work. We have forgotten that for most of American history the bulk of lawyers’ incomes came from researching land titles and writing title opinions on which sellers and purchasers relied. Especially in smaller communities throughout the country, the history of land titles and development is in private lawyers’ files – but no more.
In ordinary life, consulting with a lawyer has become a luxury good, available to large businesses and the wealthy. Most people are too scared to consult us in the daily transactions and legal concerns of their lives. The scandal of the loan modification crisis is not just that some lawyers acted badly. It is that ordinary borrowers did not even think of consulting lawyers before they signed complicated and legally onerous loan documents. The way we function has led people to be more willing blindly to sign legal documents than to consult us.
Even in the litigation system, where it is easiest to enforce our monopoly, people are finding ways to leave us in droves. Why do we need an “alternative” dispute resolution system? After all, the court system itself – at its foundation – is the basis of order, the alternative to self help, endless feuds and revenge. (See Aeschylus, the Oresteia, where in the third play in the trilogy, Athena, by convening a jury in Athens, brings an end to the seemingly endless intergenerational horrific blood feud of the Atreus family.) Do we need another alternative because the existing system of courts and procedure today is so expensive and cumbersome that so many do what they can to avoid it?
As lawyers, we know that all these transactional and other alternatives have their own problems, their own injustices and harms to clients. How do we deal with this? Not with the standard lawyer’s response to try and argue more cleverly. Nor with public relations, studies, commissions, legislation or the other “public policy” mechanisms we have become expert at.
We have to deal with it in our own lives – “the essence of mastery is self mastery.” We have to become conscious of the Jarndyce in what we do and end our denial that our own procedures and costs are driving people away from us. As we – lawyers and judges – realize the unnecessary time delays and costs we are responsible for in our own lives, we will come to understand how to change the processes we are part of. We then can demonstrate the importance of what we do – and it is important – to those we serve. With all its faults we can renew the legal system. But only if we first renew ourselves.