Keynote Address to Virginia Trial Lawyers Association Annual Convention
Gene R. Nichol
April 14, 2007
Think, for a second, about a set of facts that we all know, at least in the back of our minds, to be true. Lawyers cost money. Some have it. Lots don't. Yet unlike some industrial nations, we recognize no general right to representation in civil cases. Less than one percent of our total expenditure for lawyers goes toward services for the poor. Legal aid budgets are capped at levels making effective representation of the poor a statistical impossibility. Even at that, they've been cut by about a third over the last decade.
We have one lawyer for every 400 people generally, and one legal services lawyer for every 6,000 persons living in poverty. We fence folks out even further by creating categories of unworthy poor, and placing restrictions on the most efficient avenues for representation. Study after study shows about 80 percent of the legal need of the poor is unmet. The circumstance is almost as bleak for middle-income Americans. As every person in this room knows, neither the billable hour, nor the possibility of a significant contingent fee, covers the waterfront of American legal disputes. New York's state bar study a couple of years ago found that we leave the poor unrepresented on the most crushing problems of life—divorce, child custody, domestic violence, housing, and benefits disputes. We think it natural that a commercial dispute between battling corporations takes six months to try while the fate of a battered child is determined in a few minutes. What actually passes for civil justice among the have-nots is stunning.
On the criminal side, we trivialize the right to counsel that we have declared. Public defenders can have crushing caseloads. Rates of compensation for appointed lawyers are often laughable. Twelve hundred dollar caps in felony cases have plagued us. Competitive bid schemes can make it worse—leading to what has been accurately described as "meet 'em, greet 'em, and plead 'em" defense regimes.
And in the Commonwealth, as you know, our history is immensely troubling. You know the story. Felonies carrying 20-year sentences trigger caps too embarrassing to recount—though they are well known in this room. In various categories, the lowest in the nation. A Spangenberg Group study on behalf of the ABA two years ago, concluding that Virginia's indigent defense system is deeply flawed—"failing to protect the rights of poor people accused of committing crimes," ranking last in average indigent defense costs among the group of states for which data was collected. All of Virginia's living attorneys general—of both parties—concluding and publicly stating that "Virginia's mandatory fee caps do not provide a fair opportunity to many indigent defendants to present their cases." The Virginia Bar Association's Report on Indigent Defense concluding last year, simply, that "the state of indigent defense in Virginia has long been, and continues to be, deplorable. Drastic remedial action to increase compensation for court-appointed counsel and resources for PDs is necessary."
But a ray of light, in this legislative session, pierced the darkness. The governor added $9 million to his budget for increases in indigent defense—the attorney general, the chief justice, the Virginia Fair Trial Project, the Bar, the trial lawyers, and others serving as strong advocates, and legislative leaders, eventually including $8 million in new dollars—apparently the most significant additions in over thirty years. Also allowing, crucially, for the waiver in some instances of the debilitating ceilings. Our Supreme Court developing sensible rules for fee-cap waivers. A heartening pay raise for public defenders. Promise, we can hope, for a better day. But 50th place can't be satisfactory to Virginia advocates of justice, or even 49th or 48th. We're a long way from being able to say, with the prophet, that "justice rolls down like waters, and righteousness like a mighty stream."
Nationally, we've developed laughable rules of constitutional effectiveness—what Deborah Rhode calls a "jurisprudence of dozing"—ruling not only that inexperienced lawyers, but drunk lawyers, drugged lawyers, mentally ill lawyers, and sleeping lawyers can pass muster. One court explained that "the constitution does not say a lawyer has to be awake"; another ruled that sleeping "might have been a strategic ploy to gain sympathy from the jury." This must have provided only modest consolation to the convicted client.
We enthuse about access and equality rhetorically. But we don't make sufficiently serious efforts to give them practical content. Average citizens are effectively priced out of the justice system. They are also typically barred from participating in the closed regulatory scheme that excludes them. The system we have is powerfully, dramatically, and fundamentally at odds with who we say we are.
In studying the literature—as best a university president can do—I learned that "the best available research indicates that the American legal profession averages less than half an hour of work per week on pro bono services." Most lawyers do no pro bono work at all. Recent affluence has eroded rather than expanded support for pro bono programs. Over the past fifteen years, the average revenue of the country's most successful firms increased by over 50 percent, and pro bono hours dropped by one-third. Nationally, service to the poor represents less than one percent of lawyers' working hours.
In law schools, issues of access to justice are either missing or marginalized in our curricula. Relatively little of our research focuses on what passes for justice among the have-nots. Our curriculum takes the present deployment of legal resources as a given. Who uses the system is unexplored. Law firms are not topics of study or critique. Despite all the marvelous outreach and pro bono and varied clinical programs expanding in law schools across the country, unequal access to justice has not made it to the core of legal education. The greatest shortcoming of American law schools may be the failure to explore and articulate a theory of the just deployment of legal resources.
And I think, without intending to, we have added to the problems of access by our own patterns of academic decision-making. Tuition has risen, particularly in public law schools, many multiples of inflation. Private law school tuition, in turn, dramatically exceeds, on average, that of the publics. Costs per student have soared in the past two decades—with institutions competing feverishly—for star faculty and deans, for supremacy in facilities, in technology, in hideously expensive brochures sent across the land meant to convince unwilling recipients how terrific they are—and thus, against all odds, improve their reputation scores in the US News rankings. None of which adds much, or perhaps anything at all, to the quality of a law student's educational experience.
And then young lawyers graduate owing $100,000 or more while public sector jobs around the country average starting salaries of about $40,000. Further taxing a legal system that already excludes the poor and the near-poor from voluntary access to civil justice—making it even more unaffordable. Making "equal justice under law" a mockery on courthouse walls. Now law schools, of course, didn't cause all this. But I'm loathe to think, without justification, that we're guilty of piling on.
When we survey this landscape I think we're compelled to say that we would have hoped for more from our nation's justice system. More from our country. And I think we would say at the same time that we refuse to believe the charge of equal justice is beyond us—beyond our capacities, or beyond our desires. Because if we reject that, we reject our best selves.
So it's my hope that our future efforts—in the broader legal community and the academy—at the state level and nationally—will point more powerfully in these directions. The flight from equality is as great a barrier to the administration of justice in each of our communities as other matters that have received far greater attentions—matters like the erosion of ethics and professionalism, the loss of civility, the abuses of discovery and the like. The flight from equality is a greater barrier to justice than any of these matters.
It is also, of course, an even more difficult problem to solve. But that's not a reason to turn away. If the problem is great enough, the violation of our constitutive ideals strong enough, the threat to our democratic standards real enough, the gap between our words and our deeds massive enough, then surely we decide to go at it full bore. We experiment, we try, we fail, we regroup, we try again. We try again because we know that what we are, what we believe in is at stake. Last year I read Ralph Ellison's novel Juneteenth. There, Ellison's main character says this:
"We are a nation born in blood, fire, and sacrifice. Thus we are judged, questioned, weighed—by the ideals and events which marked [our] founding. These transcendent ideals interrogate us, judge us, pursue us, in … what we do, or do not do. They accuse us ceaselessly, and their interrogation is ruthless, scathing … until, reminded of who we are, and what we are about, and the cost[s] we have assumed, we pull ourselves together. We lift our eyes to the hills and we arise."
Our constitutive call to equal justice surely interrogates and accuses us. It judges us and finds us lacking. The answers we offer do not satisfy. Not if we are what we claim to be. We can't escape responsibility for the system of justice we create.
I close with a statement of Lord Brougham—a 19th-century Scottish lawyer and statesman—a charge that is more essential today than even when he spoke it:
"It was the boast of Augustus that he found Rome brick and left it marble. A praise not unworthy of a great prince. But how much nobler would be our sovereign's boast when he shall [say] that he found law dear and left it cheap; found it a sealed book, left it a living letter; found it the patrimony of the rich, left it the inheritance of the poor; found it the two-edged sword of craft and oppression, left it the staff of honesty and the shield of innocence."
Thanks.
