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Who let the greedy in
And who left the needy out
Who made this salty soup1
For a number of years I had the privilege of serving on the Leadership Committee of And Justice For All. While I am not sure my fellow committee members were all that sorry to see me move
on to new challenges, I will miss my participation in this endeavor because it is an unrecognized, but integral, component of our profession and of the society in which we live.
At
the end of 1998, the Disability Law Center, Legal Aid Society and Utah Legal Services launched the And Justice For All Campaign, a fund raising effort aimed at members of the Utah State
Bar. And Justice For All ("AJFA") is now an organization which strives to increase access to civil legal services for those less-fortunate members in our society. AJFA does this
primarily by raising money which is funneled to the individual agencies to allow them to provide a broader base of services to their specific client groups. AJFA is a non-profit
organization overseen by a separate Board of Trustees. Thousands of additional eligible people have received help from these agencies because of AJFA.
For a number of years I
pestered a number of you in the Bar to donate money (asking for the equivalent of two billable hours), to AJFA. Many of you at first did not believe this program was any of your concern,
but a number of you have come to change your mind over time. The Bar has responded well to the AJFA Campaign. The purpose of this article is to remind the converted as to why they donate,
and to persuade the unconverted as to why they should.
Our current system of law has, as its theoretical core, two primary principles. The first is that the protections and
prohibitions of our judicial system should apply with equal force to all citizens regardless of their economic status, religious beliefs, gender status or racial identity. The second
principle is that an adversary system, characterized by a presentation of evidence by partisan advocates, will result in the most accurate and fair evaluation of contested issues of fact
and law.
What we need to remember, however, is that the equality created by the operation of our judicial system is a formal or abstract equality, or in terms lawyers can
understand, it is a "legal fiction." From the viewpoint of the civil court system, it matters not whether the participant is a major corporation with its concomitant wealth and
legal expertise, or an indigent litigant who possesses no knowledge of the legal process. Both participants are subject to the payment of fees to gain access to the court system and both
participants are expected to abide by the court's procedural requirements and rules of evidence. Thus, our judicial system ignores or represses the concrete disabilities or advantages of
the participants and substitutes a formal or abstract equality.
When this abstract equality is combined with the adversarial system, however, the result can become a parity of
justice. With the exception of the small claims court, most citizens of ordinary means (not even taking account those at the bottom end of the economic scale) do not possess the sacred
and arcane knowledge necessary to participate in the legal ritual. If a litigant does not have sufficient surplus income which can be allocated to the purchase of a lawyer's services,
those litigants are denied access to the forum in which they can vindicate a substantive legal right. If litigants seek to argue their own claims and can afford to pay court costs and
bond costs, they will, in all probability, face a skilled and seasoned opposing counsel. The result of such an encounter is almost always foreordained. The creation of formal equality
between litigants does not necessarily provide an equal opportunity for all citizens to benefit from the judicial enforcement of rights. "It was a wise man who said that there is no
greater inequality than the equal treatment of unequals."2
Given the adversary nature of our judicial system, in order to ensure both ready access to an impartial
court and a fair trial (advocates of similar training and expertise contesting the issues on a level playing field), we must - as a profession - take into account this fiction of formal
equality between the parties. By this, I mean we must take into account the unequal distribution of wealth and income in this country and help to provide institutional mechanisms which
redress this imbalance in resources by providing subsidized legal services to our fellow citizens who cannot afford to otherwise purchase the services of a lawyer. One such institutional
mechanism is AJFA.
A hundred years ago there were a variety of alternative social institutions for resolving disputes among our citizens. There were a number of different ethnic,
economic, religious and political institutions within which members could work out solutions to conflicts. For better or for worse, the evolution of modern commercial society has resulted
in the diminishment of such organizations. More and more people turn only to the civil justice system as the sole method by which they decide their differences. This trend results in the
court system playing a more central role in our society, becoming the collective pot in which we stir all conflict resolution.
This growing tendency of turning to the courts for
answers places certain additional responsibilities on the legal profession. Lawyers have become the gatekeepers to conflict resolution for all aspects of society. This has brought our
profession influence and income. More importantly - and whether we want to admit it or not - this has imposed additional responsibilities on our profession. In a system in which the legal
process is the touchstone of the administration of justice, it is lawyers who stand between the small business and the exercise of raw power by the government; it is the lawyer that
stands between the consumer and abusive commercial practices by large corporate entities; it is the lawyer who will serve as the champion for an injured party who seeks legitimate
economic redress for injuries suffered. In the 21st century, regardless of what my personal views on the matter might be, it will be lawyers, working on individual cases, who will
facilitate, orchestrate and consummate the bulk of conflict resolution in our society. If we do not take concrete measures to ensure fundamental fairness in this process, then we have
failed our profession, our fellow citizens and our society.
The United States Supreme Court in Chambers v. Baltimore & O.R.R., 207 U.S. 142, 148 (1907), expressed the fundamental reason why the activities of AJFA should be financially supported by every lawyer:
The right to sue and defend in the court is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly
government.
The courts of our country can only adjudicate those cases that are brought before them. An important element of legitimization of our system of government is the belief of equal access to
justice. Because of this trend to "judicialize" every dispute from environmental issues to boundary arguments between neighbors, it is more important than ever to make equality
before the law a living, breathing reality. It is in the best interests of all segments of our society to provide equal and ready access to the courts for everyone, and AJFA helps us take
a step in that direction.
Those of you who know me also know that I do not always do as I say. The message, however, is not diminished in importance by knowing that the messenger
may have feet of clay. For the legal profession, our reach must always exceed our grasp. For individual lawyers, a donation to And Justice For All equivalent to two billable hours of work
seems like a reasonable attempt to fulfill that goal. We can discuss, however, alternative ways to fund AJFA. I know our Bar dues are high, and it is with some reluctance (though not
enough to stop me) that I advance the proposition that we increase our bar dues by some significant amount: $150.00 or even $200.00, specifically earmarked for AJFA. If we did something
like that, lawyers would be making a statement to the public - and the Legislature - that we were literally putting our money where our mouth is. We would be setting the example that we
could then urge others to follow.
Many of our fellow citizen's experiences with the court system leave a bitter taste in their mouths. I am not advocating that we make sure
everyone who comes to our courts enjoys a sweet banquet. We can, however, make that basic judicial soup from which we all partake, a little less salty.
Footnotes
1. Joni Mitchell, Banquet, (1972)
2. Dennis v. United States, 339 U.S. 162, 184 (1950) (Frankfurter, J. dissenting)
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