The Five Functions of The Lawyer
The Five Functions of The Lawyer
The Five Functions of The Lawyer
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The
from the country for telling them, for merely telling them, a fact that
was of supreme importance to their individual welfare and to their
survival as a nation?
How different might history have been and our life today, if only
one American lawyer in each city had written a letter to his paper or
made a speech supporting the President or if an English barrister in
each community in his country had reminded his contemporaries that
Lindbergh was undoubtedly an expert on airplanes and that he could
certainly count to 30,000? No individual class in our society is better
able to render real service in the molding of public opinion.
5. Finally, every great lawyer must be prepared, not necessarily to
seek public olfice, but to answer the call for public service when it
comes. The attorney whose professional thoughts begin and end with
his own private clients is a pitiable mockery of what a great lawyer
really is. Training for public service is a lifelong career. There is no
sadder sight in the legal profession than that of a lawyer who has long
dreamed of unselfish public service but who has been so engrossed in
serving private clients ihat when the call does come to him for a public
career he has so lost contact with the spirit and problems of the day
that his efforts in the public interest prove abortive. What should
have been a crown oflaurel frequently turns out to be one ofthorns.
These five---counseling, advocacy, improving his profession, the
courts and the law, leadership in molding public opinion and
the unselfish holding of public office-are the essential functions
of the great lawyer. Education in these five functions of the lawyer is
partly the province of the college, partly the duty of the law school,
but in large measure it is the responsibility of the individual lawyer
not only while in law school but throughout his working years. This is
practicing law
practicing.
These are days ofgreat debate concerning whether the law schools
are doing their part in preparing their students for the profession.
Chiefly, the debate rages around whether the law schools should
teach not merely the 'what' and the 'why,' but also the 'how' of the
law just as the medical schools teach the 'how' of medicine and
surgery. I must not engage in that debate, but I do venture to say that
the law schools generally are not doing what they should be doing to
prepare their students for the third function of the lawyerimproving his professioni the courts, and the law.
I shall limit my remarks to a single phase of this responsibilityimproving the work of the courts. Is it not the responsibility of the law
schools to teach procedure with due regard to the realities of the law?
When
Fioe Functions
of the
Lawyer
l0l
law was
in!
What the law student most needs in these days when the courts are
a new year of
professional activity.
It should be added that since 1906 the American Bar Association
has made honorable amends for its reception of Dean Pound's speech
by furnishing the leadership that has brought about the drafting and
promulgation of the Canons of Professional and Judical Ethics. It has
led the fight against Theodore Roosevelt's campaign for th recall of
judges and
legal
education throughout the country, agitated for years for the Federal
Rules of Civil Procedure, opposed President Franklin D. Roosevelt's
proposal for packing the United States Supreme Court, aided in the
establishment of the Administrative Office of the United States
I.AL
F{
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judges.
kind of delay.
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The second result from the power to assign judges is that-and this
is something you will have to take on faith because it doesn't sound
But the right to assign judges alone will not clear up court
congestion. To that you must add pre-trial conferences.
looked over the pleadings and listened to each side's outline of its
case, proceeds to state the issues, shaking out of the case any
nonessentials in the pleadings. He then proceeds to discuss with the
attorneys what proofs may be stipulated. He asks, "What documents
are you going to introduce in evidence?" Ordinarily there is no
dispute about such documents; accordingly they are produced and
given a number in evidence, so that they will be ready for presentation
at the trial without calling the attesting witnesses. In automobile
negligence cases, the ownership ofthe car and the agency ofthe driver
are generally stipulated and likewise the damages to the car, when the
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try it, and that is one ofthe good results ofpre-trial conference. For
the first time, too, he gets a proper perspective on the defendant's
case.
Likewise the defendant's lawyer for the first time gets a true
concept of his own and his adversary's case. Suddenly it dawns on
each of them that instead of this being a case that the plaintiff can't
trial.
The third great cause of the law's delay comes after the case is tried
and the judge says the fatal words, "I will take the matter under
advisement." I have waited in the old days two years, four years, six
years, eight years, ten years for decisions in our Court of Chancery.
We have had a lot of Lord Eldons in New Jersey. They were aided and
abetted by many a prospective Lord Eldon at the Bar, who would
wait until the end of the case, and then would say, "Your Honor
realizes now that this is a complicated case, and I would like to submit
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go until the next day, he is going to start off on a new case, and then
another case and then still another case, and each case he tries will
render the facts of the indicated case still dimmer in his mind.
Thus, in my state we have a rule that the lawyer must file their briefs
in advance. If the judge doesn't decide the case within twenty days
after oral argument, he must indicate the reason on his weekly report.
And here is a strange bit of judicial psychology----ven the hardestpressed judge would rather write out an opinion than to write down in
his report some reason why he hasn't decided the case. Thus, almost
all cases are decided promptly and the law's unnecessary delays, as we
them when they would work injustice. Rules of court make for
avoiding decisions on technicalities. The rule-making process must be
a continuous process, and there should be some body in the state,
either a judicial conference or a judicial council, which reviews the
rules annually to see if they can be improved in the light of experience.
Most of all in this country we necd to give the trial judge real
power. Believe it or not, there are over twenty-five states in the
Union where the trial judge is not allowed to comment on the
evidence, where he is not allowed to ask questions even though
neither plaintiff's nor defendant's counsel has brought out what the
judge sees is the pertinent fact concerning which a particular witness
should testify. [n these states the judges are not allowed to sum up in
their own language to the jury, but, on the contrary, they take their
instructions from either one or the other ofthe trial counsel, and that
is called a charge.
Also, in these states, just to make sure that reading these written
instructions doesn't amount to anything, the code of procedure
provides that the judge must give his charge before counsel for the
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defendant and counsel for the plaintiff sum up to the jury. Now, if I
were to stand here and mumble seven or eight typawritten pages of
legalistic requests to charge and that was to be followed by two
impassioned addresses by other lawyers, I submit that no jury would
remember a single word that I had said. They would merely
remember that the other lawyers had said it all better than I had
because they had been talking to them and I was only reading.
This putting of the trial judge in a strait jacket o@urs in over one
halfofour states. lfyou come from one ofthese backward states, one
of your first jobs is to make your professor of procedure conscious ol'
that fact, because he is probably taking it for granted that that is a
necessary and natural way to try a case. You can'begin to improve the
work of your courts right away by asking, "Why cannot we give our
trial judges real power as they do at common law and in the federal
courts and in many of the states?"
Another major cause of complaint about our courts is thc
occasional bad manners ofjudges. Some judges are just constitutionally cross-grained. They never should have been permitted to get on
the Bench, and there should be some method devised for getting rid ol
them. One of the things that makes judges irritable, I am told, is thc
pressure of work. When a judge is conscious that he has twenty-five or
thirty cases undecided, how can he be cheerful when he says, "Good
morning"? He just can't be, because he has missed the moment ol
decision in those twenty-five or thirty undecided cases, and he realizes
that he will never do as well as he might have done in these cases.
Another thing that makes some .iudges irritable is the consciousness that they are subject to political pressure. We all like to be frec
and independent, but ifyou happen to be an unfortunatejudge who is
subject to politics-and I have had judges tell me that they know
what that means-that makes for bad manners. So the thing to do is
to get rid of political pressure.
That brings us right to the heart of the matter. To have gootl
judicial administration, to have good judges, you need judges whrr
know the law, you need judges who can think, you need judges whtr
can express themselves, you need judges who are diligent, you nectl
judges who are honest, and you need judges who the public believcs
rrl
that
statement-but the fact that the public thinks they are dishonest
rs
just
as
fact
so.
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107
bad from the standpoint ofrespect for the law as ifthey were in
Why does the public have that notion? Obviously, it gets the notion
because your local policejudges, your localjustices ofihe peace, and
your county judges in many states are forced to run for election on a
partisan ticket. They travel around with the candidate for governor,
for senator, for Congress, ar.d for the state legislat,rr", urrd all the
other fellows running for election, and they attend political meetings,
dinners and clambakes. How can the people think the judge is aiy
different from all the rest of the politicians who are running for
election? Those who are informed know that the county judge is the
smartest of these politicians and probably is planning the whole
campaign. Indeed, in certain states it is admitted by everybody in the
county that the county judge is the unofficial head of the dominant
political party. In fact, if he isn't, he isn't going to be re-elected when
his term expires. That is how the public gets its notions about its local
judges who run in political primaries and elections.
Does it not suggest to us that in every state we should carefully
examine the method of the selection ofjudges-and that goes for th!
appointed judges as well as elected judges? If the governor is not
supported and buttressed by the strong opinion ofthe Bar to appoint
appointive process any more than you will through partisan elec-"
tions. But we need more than good judges. We alsoneid jurors who
are representative ofthe honest and intelligent citizenry ofthe county
if the fact finding of our courts is to be done properly.
These are some of the pressing problems in the administration of
justice that you should keep in mind in law school as well
as in
practice.
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Tke
Mr
pondereei
'pnnctecl
engrossed
'mokarl
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dr'rna:raz
reward of success
legalobjectionstoretrevanceofopponent's
109
as another
mockery
demurrers
'[.. Vocabulary
af the l-awyer
ExBncrsns
nnanipulate-
Fioe Functions
fact
pleas / pb:z I staternents nnade by or for a per$on charged in a law
co{rrt
avoidance / e'vsldans i rneeting one's opponent's pleadings by new
matter
assignrnent / o'salnmsnt / the transfer to another of one's legal
interest or right, esp. the transfer ofproperty to be held in trust on
to be used for the benefit of creclitors
departure / dr'pa:tia(r) / the elesertion by a party to any pleading of
the groun<l taken by hirn in his last antecedent pleading and the
adoption of another
demurrabie I dl'm,rrebel / open to objection
Minorca / rm'nc:ke / part of the Ealearic Isiands, a $ipanishe province in the W. fu{editerranean
to wit / tp wrt / namelY; that is to saY
parish / 'perrJ / division of county with its erwn church and priest
videlicet I vl'rtri:hset / abbreviated as ure : nerneiy
amends / a'rnendz / something done to repair sorne harm' darnage,
etc.
promulgation
grncmal'gerJn
announci.ng
offrcially, making
public
rc'call / rr'kc:l / eall to return
cuphemistically I ju:fe'rnlstildl i as a substitutiom of rniid or indirect words for harsh or direct ones
litigants / 'lrtryents f perscns engaged in a iawsuit
pcals / pi:\z I loud volleys of sound
cmanating / 'ennonertrq / eorning, fiowing {from)
county I 'kauntr / sutrdivision of a state; the largest tenit of local
governnaent
dctrirnental
detrl'mentat
hannful