The Judge’s Final Plea to the Jury, Chapter Twenty-Three

Much has been said about how the majesty of our law is based on both observance of precedent and its ability to adapt to new circumstances. The task of balancing those two aspects of our legal system is not new. There has always been a friction between the law and the movements of our society and economy. What is always new is the current array of social and economic challenges brought about by change. It is to these challenges that our law and our lawyers must continually respond. We need to rally the public to a more positive support of achieving that task, and that should involve all the players that affect the legal system: the courts and judges; the lawyers; the legislatures; the interest groups; and the public.

The issues argued here will, in time, give way to new issues. The law and lawyers’ practices will, to a degree, remain in flux. The Greek philosopher Heraclitus put it this way: "You could not step twice into the same river; for other waters are ever flowing on to you."

Some people simply react to social change with fear and target the law and lawyers for their role in furthering unwanted change. But the lawyers’ task is to deal responsibly with change, with respect for precedent and preservation of basic rules and rights. What we need, and indeed hope to maintain as a constant, is public pressure on lawyers to implement and maintain practices that are responsive to the broadest interests of justice.

So, we turn to you. You have answered the summons. You along with your fellow citizens are the jury. It is time for your deliberation and, at length, your verdict. Where do you come out on each of the counts? You may or may not be ready to render a specific verdict on all of the counts. In fact, I urge you to supplement your knowledge in the course of continuing deliberation. The sources set out in the endnotes are a start. As you think through the counts, remember the threshold inquiries raised in Chapter 1 and recast here:

Just what are the legitimate complaints against the legal system and the legal profession? Are the popular complaints unfounded? Do people too often attempt to make lawyers the scapegoats for perceived social or economic problems? When we attack lawyers, to what extent are we simply projecting our own unsatisfactory behavior patterns onto them? Are the complaints so culturally ingrained and of such a recurring, unavoidable nature that they have lodged within our normal tolerance–to the extent that we don’t really care? Can most of the problems be corrected by the lawyers themselves?

In practical terms, how do you proceed at this point? The challenge is to render your verdict as best you can. Where and how do you render it? Engage others to take a hard look at the issues presented here. Contact groups that take positions, and urge them to make an objective and vigorous examination of the issues. Put pressure on the bar association in your area to seek a reasonable degree of citizen input in examining issues that arise in the civil law area. Talk to your lawyer friends, and sound them out.

Encourage your friends to do their best, when served with a summons to jury duty, to appear without seeking an exemption. Ask your employer to accommodate employees who are called for jury duty. Vote. And, of course, urge your elected representatives at all levels to support the courts and legal administrative bodies with needed funding.

In short, be proactive in urging others to engage in more public deliberation of issues related to the legal system. Take part in and encourage public pressure for improvements to our civil law system and lawyers’ practices --- if and where needed.

My final plea is that you don’t consent to unthinking disrespect for lawyers. Make your verdict clear, but whatever your verdict on the issues presented, do what you can to help promote a stronger bar. Where your verdict supports lawyers, say so, and encourage the practices and professional values that you like. Where your verdict is critical of lawyers, give them the feedback that will push them toward constructive reform.

It is important that we not countenance disrespect of the law or lawyers where it is unwarranted. Disrespect leads to distrust. When distrust predominates, we are likely to resort to ever-greater use of the law for private gain without consideration of the aggregate public interest. To the degree that distrust spreads, the gap between the public and lawyers will widen.

Should we still tell lawyer jokes? Of course. We can’t abandon our sense of humor. But keep in mind the relationship between lawyers and society. As we judge them, to a great degree so do we judge ourselves.

Yes, lawyers can infuriate. They can too often selfishly pursue their own interests above those of the public and even their clients. They, like the rest of us, have their strengths and their warts; in that, they greatly reflect the yeastiness of American society. But many are selfless in serving public interests and contributing enormously to our opportunities born of liberty under the rule of law. As a group, our practicing lawyers are too essential to the task of delivering to us the benefits of the law to deserve an indifferent or damning public --- one that fails to support constructive efforts to improve the bar.

So we have a choice: a choice between cynical partisanship, and opportunity. Partisanship our society knows all too well. It is reflected in many of these pages and in many of the cited sources; it is embedded in too much of our discourse. The opportunity now is to engage with lawyers in a greater deliberation that promotes good judgment and good adaptation of the legal system to the needs of the citizens and the republic. The law as an institution is so important for our sense of community and our democratic life that we shame ourselves if we give it anything less than our vigorous support.

You, our jurors, whatever your politics, whatever your ethnicity, whatever your place in the spectrum of citizen characteristics, should be heard. The good juror both talks and listens. You are the truth-seekers. All of us, collectively, are a national jury. The deliberation must remain open so that persons of all backgrounds can step into the role of promoting civic republicanism, of being citizen-statesmen. The opportunity is yours.

You are badly needed as friends of the legal system.