Guest Columnist
Watch Out
By Thomas J. McDennott, Jr.
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"Watch Out. /I
Officer Pup to Krazy Kat just before
the brick hits.
A s Dr. Samuel Johnson said,
"No man but a blockhead
ever wrote except for
money." Money I have not gotten.
While Chair of the Litigation Section,
I was required to write three col-
umns. That I did. "Now I go on scale,"
I said, "or I'm out." "You're out," the
Editor said, "but give us a guest col-
umn just to show what a blockhead
you actually are." "Okay," I said, "but
then I'm really out."
Since "out" is the operative word,
my parting words to you are: "Watch
Out."
Watch out because what we law-
yers know is obsolete and what we
lawyers do is about to get hit with a
brick; indeed, in the spirit of the old
Krazy Kat cartoon, many bricks.
These are some of the bricks to watch
out for.
-Watch Out For-
The Revolution Against the Le-
gal Profession - Judges have be-
come the Kings and Queens of
America, its rulers, and lawyers are
I
~"""""""""""""""""""_45
their royal lords and ladies, helping
build the infrastructure of power and
then sharing secondarily in the fruits
of that power.
This "secret," long obvious to trial
lawyers but not discussed, has now
been outed, by Harvard Law School
no less.
In the August, 1994 issue of Com-
mentary, Mary Ann Glendon, Pro-
fessor of Law at the Harvard Law
School, traces events from the 1950's
forward that led' to the unprec-
edented growth of judicial power.
"Adventurous" judging is one way she
describes it. Many trial lawyers saw
it as the decline of stare decisis. In
the American constitutional system,
the assigned role of the judiciary tra-
ditionally has been to stabilize scci-
ety. It has moved to a new role which
is to advance society. To advance so-
ciety means to break rules, make new
rules, in effect, to legislate.
In Professor Glendon's opinion, this
enormous growth in judicial power
was due, at least in part, to the judi-
ciaries' appropriate assumption of
responsibility in areas where the leg-
islative and political branches should
have acted but could not muster the
strength; Brown v. Board of Edu-
cation is a leading example. How-
ever, this led to some judges taking
over entire school districts and then
on and on and on. Eventually, many
judges began to think this "adven-
turous" judging was heady stuff and
as they ran out of true societal catas-
trophes to correct, began to look
around for more modest righting of
wrongs. Facts became paramount,
precedent appropriate only if it
reached the "right" result, and the
judges' instincts were more impor-
tant than musty law books or legisla-
tive history.
By placing the issue of judicial
power into print (for the first time as
far as I know) in the clear and con-
cise marmer that she has Professor
Glendon may ignite a major public
debate. This, I believe, can lead to
no good for judges and lawyers. It is
the "big brick," if you will, and if it
hits, the rest of the bricks will come
thick and fast.
The legislative and political
branches have been quietly fighting
growing judicial power, although they
willed it into being in the first place.
(For example, many a congressman
••••••••••••••••••
Mr. McDermott, past Chair of the Liti-
gation Section, practices with Bryan
Cave in Los Angeles.
 saved his seat by forcing the courts
to integrate the schools.) At least
three tactics to control the judiciary
have been implemented. The first has
been to enact so many laws and write
so many regulations that the judicial
system could not possibly cope with
the written law, much less be activ-
ists. This has gone so far as to telling
judges how to judge, e.g, the sen-
tencing guidelines. But this approach
has backfired. Now there are just
more touchstones to bounce rulings
off of. The second has been to
attempt to screen judges based on
their political views, a sort of ac-
knowledgment of the legislative role
of the courts with an attempt to get
them legislating the "right" way. This
has not worked so well either, hu-
man nature being what it is.
, If this power
issue goes beyond
Commentary [tal
the public press,
it does not bode
well for lawyers. '
But the third approach will work,
is working, is guaranteed to work,
and it affects lawyers as much as
46 ••••••••••••••••••••••••••••••••••••••••
judges. This approach is money. Not
budgeting it, not appropriating it, not
spending it. If Congress were to
freeze the judiciaries' appropriations
at current levels and continue in its
efforts to federalize all criminal acts,
it could turn the federal courts into
exclusively criminal courts in a very
few years.
If this power issue goes beyond
Commentary and into. the public
press, it does not bode well for law-
yers. We are disliked by the public
today because it is perceived we have
too much power and make too much
money. If the media picks up on the
Commentary piece and convinces
the public that lawyers have even
more power than anyone thought due
to their unique access to that real
power of the courts, then the public
will force the legislators to curb that
power. Even more draconian steps
than we have seen to date will come.
The End of the Civil Jury Sys-
tem - It may be preserved for a
while for cases that touch on broad
public interests such as automobile
accidents and product liability, but
say good-by to the rest; all the juries
will be trying criminal cases.
The Rise of Alternative Dispute
Resolution - The civil cases have
to go somewhere.
Summary Trial Methods - If
they can do it on TV in ten minutes,
why should it take ten days in court?
As the public sees more.and more of
the "People's Court" shows on TV
(and they are proliferating), there
will be a move to try this on cases
where the parties are paying the
judgments themselves rather than
the TV production company.
Multimedia Trials --' Put it all on
CD-ROM - witnesses, documents,
oral argument, everything - deliver
the CD to the judge and wait for the
ruling.
Caps on Legal Fees - Look what
they are trying to do to the doctors
and baseball players - and the pub-
lic likes doctors and baseball players.
Greater and Greater Use of Pre-
recorded A udiovisual Materials in
the Courtroom - This is not for
greater impact or clarity, but to save
time.
The Reemergence of the Mid-Size
Firm - A few mega-firms will sur-
vive, but economics dictates scaling
back.
The Development of Interna-
tional Law - Multinational trans-
.actions are being negotiated and
implemented all over the globe, but
whose law will apply and how will it
be enforced? New international tri-
bunals with their own procedural law
are bound to arise, but the question
of substantive law remains open. Let's
hope it will be British-American com-
monlaw.
The Battle of Intellectual Prop-
erty - In the "Information Age" the
information is even more valuable
than the means to deliver it. Watch
for increased disputes over rights to
information that heretofore were as-
sumed to be in the public domain.
Growing Regulation of Lawyers
- Every Federal District Court now
has, or is developing, regulations to
punish lawyers who make sexist or
ethnic slurs, in or out of the court-
room. A righteous cause, of course,
but what's next?
I'm not really a pessimist. Indeed,
I think that the "challenges" of the
next ten years are stimulating. I only
call your attention to the bricks that
are flying and about to fly because
it's a lawyer's job to anticipate, Isn't
it?