Lawyers versus Society

LAWYERS VERSUS SOCIETY BY ADMIRAL H. G. RICKOVER, USN BEFORE THE NEW YORK PATENT LAW ASSOCIATION, INC. NEW YORK, N.Y. MARCH 30, 1979

SEVERAL WEEKS AFTER I AGREED TO ADDRESS THIS GROUP, OFFICIALS OF YOUR ASSOCIATION BEGAN EXPRESSING INTEREST IN THE TOPIC OF MY SPEECH. THEY URGED ME TO TALK ABOUT MY CAREER, NATIONAL DEFENSE, HISTORY, PHILOSOPHY, MY PERCEPTION OF THE FUTURE--ANYTHING BUT PATENTS. THEY SAID FEDERAL JUDGES AND CORPORATE EXECUTIVES WOULD BE PRESENT AND THAT THE MEMBERS AND GUESTS WOULD WANT TO ENJOY THEMSELVES.

I DO NOT HAVE THE SLIGHTEST INTEREST IN PROVIDING ENTERTAINMENT FOR DINNER PARTIES OR FOR ANYONE ELSE. I HAVE ALWAYS LIVED, AMONG OTHER RULES, BY THE ONE "HEAVEN IS BLEST WITH PERFECT REST, BUT THE BLESSING OF EARTH IS HONEST TOIL." MY SOLE REASON FOR COMING HERE IS TO IMPRESS UPON YOU THE NEED AND IMPORTANCE FOR THE LEGAL PROFESSION TO START PLAYING A TRULY RESPONSIBLE ROLE IN OUR SOCIETY.

IN THE LEGAL COMMUNITY AND ELSEWHERE, THE PEDESTAL OF PROFESSIONALISM IS NOW SHAKY. ABUSES OF POWER BY BUSINESSMEN, ACCOUNTANTS, DOCTORS, AND LAWYERS--MAKE IT OBVIOUS THAT SOMETHING IS WRONG. INSTEAD OF WORKING FOR THE BENEFIT OF SOCIETY, MANY PROFESSIONALS SEEM TO BE WORKING FOR THE BENEFIT OF A FEW OR FOR THEMSELVES. PROFESSIONAL ORGANIZATIONS APPEAR UNABLE OR UNWILLING TO POLICE THEIR MEMBERS. PUBLIC CONFIDENCE IN THEM HAS DECLINED. ALTHOUGH OTHER PROFESSIONS ARE ALSO AT FAULT, LAWYERS ARE THE BRUNT OF THE CRITICISM.

IT HAS BEEN MY EXPERIENCE THAT MEMBERS OF THE LEGAL PROFESSION ARE CONTRIBUTING SUBSTANTIALLY TO THE EROSION OF VALUES AND INSTITUTIONS ON WHICH OUR SOCIETY IS BASED. IN THEIR QUEST FOR MONEY AND POWER MANY LAWYERS SEEM TO HAVE FORGOTTEN THEIR OBLIGATIONS. BY SO DOING, THEY ALIENATE THEIR COUNTRYMEN; BREED DISTRUST OF OUR INSTITUTIONS AND THOSE WHO RUN THEM; AND UNDERMINE THE TRADITIONAL VALUES OF HONOR, HUMILITY, AND HONEST DEALING.

THE PROBLEM STEMS LARGELY FROM THE GROWING OBSESSION WITH MONEY IN OUR SOCIETY. PREOCCUPATION WITH PROFIT CREATES INCENTIVES AND PRESSURES ON INDIVIDUALS TO ACT IN WAYS THEY WOULD NOT OTHERWISE CONSIDER.

LAWYERS ARE SUPPOSED TO BE OFFICERS OF THE COURT; IT IS TO THEM THAT SOCIETY HAS ENTRUSTED THE ADMINISTRATION OF JUSTICE. THE AMERICAN PEOPLE EXPECT OUR SO-CALLED OFFICERS OF THE COURT TO BE MORE THAN MERCENARIES. YET IN PURSUIT OF THEIR OWN INTERESTS, MANY LAWYERS HAVE LOST SIGHT OF THE PUBLIC GOOD.

INSTEAD OF HOLDING BACK THE ATTACK ON OUR INSTITUTIONS AND VALUES, MANY HAVE INSTEAD LED IT.

THERE HAS BEEN A BREACH OF FAITH BY LAWYERS--AND THE PUBLIC KNOWS IT. A RECENT NATIONAL POLL FOUND THEM RANKED BELOW GARBAGE COLLECTORS IN PUBLIC ESTEEM AND THAT BUT A SMALL PART OF THE PUBLIC HAS CONFIDENCE IN LAW FIRMS. THE CHIEF JUSTICE OF THE SUPREME COURT RECENTLY CONCLUDED THAT A MAJORITY OF LAWYERS PRACTICING IN COURT ARE NOT PROPERLY EQUIPPED TO DO SO. THE PRESIDENT HIMSELF HAS STATED PUBLICLY THAT WE ARE "OVER-LAWYERED AND UNDER-REPRESENTED." A FOREIGN OFFICIAL HAS COMMENTED: "YOU HAVE LAWYERS LIKE OTHER PEOPLE HAVE MICE."

IT IS ARGUED THAT OUR ADVERSARY SYSTEM OF LAW DEMANDS THAT ATTORNEYS LITIGATE VIGOROUSLY, REGARDLESS OF THE MERITS OF THEIR CLIENT'S CASE. THIS VIEW HAS BECOME A RATIONALIZATION FOR PRACTICING THE LAW IN A WAY THAT FREQUENTLY OFFENDS JUSTICE AND DEBASES THE INTEGRITY OF OUR JUDICIAL SYSTEM. TOO OFTEN THE FINANCES, PATIENCE, AND TIME AVAILABLE TO A LITIGANT HAVE BECOME MORE IMPORTANT TO THE OUTCOME OF A CASE THAN ITS LEGAL MERITS. LAWYERS SHOULD INSTEAD STRIVE TO FOCUS THE COURT'S ATTENTION ON THE LEGAL OR FACTUAL ISSUES IN DISPUTE QUICKLY AND EFFICIENTLY. BUT MANY OF THEM DO THE OPPOSITE. LAW PRACTICED IN THIS MANNER DOES NOT AIM TO RECONCILE THE PARTIES AND RESOLVE THE DISPUTES. IT STRIVES TO BENEFIT THOSE WHO HAVE THE RESOURCES TO DOMINATE THE COURT BY DISTRACTING IT.

ONE OF THE MOST FRUSTRATING AND WASTEFUL PRACTICES IN SOCIETY TODAY, AND ONE THAT CONTRIBUTES MOST TO THE BREAKDOWN IN OUR SYSTEM OF JUSTICE, IS THE DELIBERATE OBFUSCATION OF ISSUES BY LAWYERS. FACED WITH A WEAK CASE, MANY SEEK TO REDIRECT ATTENTION TO IRRELEVANT MATTERS AND TECHNICALITIES. BY SO DOING THEY CAN DELAY OR ALTOGETHER AVOID UNFAVORABLE DECISIONS ON THE LEGAL MERITS OF A CASE.

ALTHOUGH COMPLAINTS ABOUT DELAYS IN THE JUDICIAL PROCESS ARE WIDESPREAD AND OFTEN DISCUSSED IN LEGAL CIRCLES, I WONDER HOW MANY LAWYERS EVEN CARE, OR HAVE A REALISTIC APPRECIATION OF THE DETRIMENTAL EFFECTS FRIVOLOUS LITIGATION, LEGAL MANEUVERING, MASSIVE DISCOVERY CAMPAIGNS, AND DELAYING TACTICS HAVE, NOT ONLY ON THE JUDICIAL PROCESS, BUT ON OTHER WORTHWHILE HUMAN ENDEAVORS. CAUGHT UP IN THE HEAT OF THEIR LEGAL BATTLES, AND WITH AN EYE TOWARDS THE REWARDS, MANY LAWYERS SEEM INDIFFERENT TO THE EFFECT THEIR LITIGATIVE TACTICS HAVE ON THEIR VICTIMS.

I HAVE HAD FIRST HAND EXPERIENCE WITH THESE EFFECTS AND I DOUBT THEY ARE UNIQUE. I AM RESPONSIBLE FOR THE DESIGN, CONSTRUCTION, AND SAFE OPERATION OF 152 OPERATING NUCLEAR REACTORS IN NAVAL SHIPS AND ASHORE--MORE THAN THE TOTAL OF ALL OTHER OPERATING COMMERCIAL REACTORS IN THE U.S. TODAY. LIKE MANY OTHER PROJECTS IN GOVERNMENT AND INDUSTRY, THIS WORK REQUIRES METICULOUS ATTENTION TO DETAIL AND LONG HOURS BY MANY DEDICATED PEOPLE. EVERY YEAR IT BECOMES HARDER AND HARDER FOR THEM TO DO A PROPER JOB. THEIR EFFORTS AND ATTENTION MUST INCREASINGLY BE REDIRECTED TO EXTRANEOUS MATTERS. IN THIS RESPECT, THE LEGAL PROFESSION IS MAKING A GREAT NEGATIVE CONTRIBUTION TO OUR DEFENSE.

AS ONE MINOR EXAMPLE, FIFTEEN YEARS AGO, THE GENERAL ACCOUNTING OFFICE REPORTED THAT A LARGE DEFENSE CONTRACTOR HAD OVERCHARGED THE GOVERNMENT $500,000 ON ONE OF MY CONTRACTS. LAST DECEMBER THE ISSUE FINALLY CAME TO TRIAL. I EXPECT A RULING IN ABOUT A YEAR. THE ISSUE IS SIMPLE. YET THE LAWYERS REPRESENTING THE CONTRACTOR HAVE MANAGED TO DRAG IT OUT. MEANTIME, THEIR CLIENT HAS USE OF THE MONEY IN DISPUTE.

IN ANOTHER CASE, A LARGE CONGLOMERATE REFUSED TO HONOR ITS CONTRACT, CONTENDING IT WAS INVALID AND SHOULD BE REPRICED. FOUR YEARS OF MASSIVE DISCOVERY AND LEGAL MANEUVERING HAVE NOW ELAPSED, AND VALIDITY OF THE CONTRACT HAS YET TO BE TRIED IN COURT. MEANWHILE, THE TIME OF MANY KEY NAVY PERSONNEL IS DIVERTED FROM THEIR PRIMARY DUTIES.

IN THIS CASE I HAVE BEEN SUBJECT TO MORE THAN 40 HOURS OF DETAILED INTERROGATION UNDER THE GUISE OF DISCOVERY BY A TEAM OF EXPERIENCED LAWYERS OVER A PERIOD OF SEVERAL WEEKS. HAD THEY BEEN INTERESTED ONLY IN GATHERING INFORMATION ABOUT THE CASE, THEY COULD HAVE COMPLETED THE QUESTIONING IN ONE TO TWO HOURS. OF COURSE, THE LONGER THEY TAKE, THE MORE MONEY THESE HIGH-PRICED LAWYERS MAKE. A FEW DAYS AGO, I RECEIVED WORD THAT THE LAWYERS WANT TO RESUME MY DEPOSITION.

HOW IS THE COMMON GOOD SERVED WHEN LAWYERS OBFUSCATE ISSUES, DELAY AND HARASS THE OPPOSITION, AND ATTEMPT TO ABROGATE CONTRACTS? HOW IS JUSTICE SERVED BY FRUSTRATING THE LEGAL INSTITUTIONS AND PROCEDURES THAT HAVE BEEN ESTABLISHED AND ARE AVAILABLE TO THE PUBLIC FOR RESOLUTION OF DISPUTES? EVEN WHEN BOTH PARTIES CAN AFFORD THE LEGAL COSTS, THE DELAY AND HARASSMENT NOW TYPICALLY INVOLVED IN LITIGATION MAKE IT INCREASINGLY UNATTRACTIVE TO ALL EXCEPT THE LAWYERS. MOREOVER, THROUGH DELAY, ONE PARTY CAN EFFECTIVELY DENY HIS ADVERSARY'S RIGHT TO A JUDICIAL DETERMINATION.

LAST SUMMER, THE SECRETARY OF THE NAVY DECIDED TO GRANT THE NAVY'S THREE LARGEST SHIPBUILDERS EXTRA-CONTRACTUAL RELIEF TOTALING MORE THAN $500 MILLION UNDER A SPECIAL LAW CONGRESS HAD ENACTED TO COVER EXTRAORDINARY ACTIONS DETERMINED TO BE NECESSARY TO FACILITATE THE NATIONAL DEFENSE. THE SECRETARY SAID THAT NOT GRANTING SUCH RELIEF WOULD INEVITABLY MEAN LONG YEARS OF LITIGATION AND A DISRUPTIVE RELATIONSHIP WHICH WOULD UNREASONABLY JEOPARDIZE THE NATIONAL DEFENSE.

LARGE CONTRACTORS AND THEIR WELL-PAID LAW FIRMS HAVE THUS MADE LITIGATION UNPALATABLE AND DIFFICULT FOR THEIR ADVERSARIES. IN SUCH A CLIMATE THE CONCEPT OF JUSTICE IS LOST; VICTORY WILL USUALLY GO TO THOSE IN THE STRONGEST NEGOTIATING POSITION.

THE TACTICS OF DELAY AND OBFUSCATION WHICH SERVE SOME LAWYERS WELL IN COURT HAVE NOW PERMEATED THE GOVERNMENT PROCUREMENT PROCESS. BY DRAGGING OUT DISPUTES, LAW FIRMS MAKE IT POSSIBLE FOR THEIR CLIENTS TO DEFER OR PERHAPS AVOID REPORTING LARGE LOSSES TO STOCKHOLDERS. SEVERAL LARGE SHIPBUILDERS WERE FOR MANY YEARS ABLE TO AVOID REPORTING SUCH LOSSES, SIMPLY BY PREDICTING OPTIMISTIC RECOVERIES FROM PENDING LITIGATION, AND THE LONGER A CASE DRAGS ON, THE GREATER THE LIKELIHOOD OF GOVERNMENT PEOPLE LEAVING FOR OTHER JOBS, MEMORIES FADING, AND THE CASE BEING FINALLY SETTLED INDEPENDENT OF THE LEGAL MERITS.

THERE ARE NOW LAW FIRMS WHICH SPECIALIZE IN OMNIBUS CLAIMS AGAINST THE GOVERNMENT. THESE CLAIMS HAVE DISTINGUISHING CHARACTERISTICS. THEY OFTEN GO FROM TENS TO HUNDREDS OF MILLIONS OF DOLLARS. THEY ARE GROSSLY INFLATED, SO THAT SETTLEMENT AT A FRACTION OF THE CLAIM WILL STILL YIELD THE DESIRED AMOUNT. THEY ARE BASED ON UNSUBSTANTIATED ALLEGATIONS THAT THE GOVERNMENT IS AT FAULT. THEY DO NOT SHOW A CAUSE AND EFFECT RELATIONSHIP BETWEEN ALLEGED GOVERNMENT RESPONSIBLE ACTIONS AND THE AMOUNT CLAIMED.

SOME DRAW AN ANALOGY WITH OTHER TYPES OF LITIGATION, SUCH AS PERSONAL INJURY SUITS WHERE A LAWYER MIGHT ASK FOR $1 MILLION IN DAMAGES IN THE HOPE OF RECOVERING $25,000. IN SUCH CASES, NO ONE TAKES THE INITIAL AMOUNT SERIOUSLY. THE JUDGE OR JURY ARRIVES AT A FIGURE INDEPENDENTLY, BASED ON THE TESTIMONY OF WITNESSES.

BUT CONTRACT CLAIMS AGAINST THE GOVERNMENT ARE DIFFERENT. SINCE PUBLIC FUNDS ARE AT STAKE, EVERY ELEMENT OF THESE CLAIMS MUST BE SCRUTINIZED FOR LEGAL ENTITLEMENT AND THE COST AUDITED AND EVALUATED. LARGE CLAIMS OF THIS SORT TIE UP MANY KEY PEOPLE FOR MANY YEARS WHO MUST EVALUATE THE VALID AND INVALID PORTIONS OF THE CLAIM. THOSE ON WHOM THE GOVERNMENT MUST RELY FOR CLAIMS ANALYSES ARE THE VERY ONES WHO ARE ALSO RESPONSIBLE FOR OTHER ON-GOING WORK.

ONE CONGLOMERATE SUBMITTED CLAIMS TOTALING ABOUT $1 BILLION AGAINST THE NAVY. THE CLAIMS COMPRISED 64 VOLUMES, EACH TWO INCHES THICK, AND COVERED MANY YEARS OF PERFORMANCE UNDER VARIOUS CONTRACTS.

GOVERNMENT TEAMS UNDER THE DIRECTION OF A SPECIAL INDEPENDENT BOARD REQUIRED A YEAR AND A HALF TO EVALUATE THESE CLAIMS. THEY WERE EVENTUALLY SETTLED FOR LESS THAN ONE-FOURTH THE AMOUNT CLAIMED. TO JUSTIFY EVEN THIS FIGURE, THE GOVERNMENT HAD TO INCLUDE LARGE SUMS TO COVER LITIGATIVE RISK AND LITIGATIVE COST--THAT IS, THE LIKELIHOOD OF UNFAVORABLE DECISIONS BY A COURT, AND THE ESTIMATED COST FOR THE GOVERNMENT TO SPEND YEARS LITIGATING.

CONSIDERATIONS; EFFECTIVELY DISCIPLINE MEMBERS; AND RECOMMEND WAYS OF REDUCING LITIGATION AND STREAMLINING JUDICIAL PROCEDURES.

JUDGES AND OTHERS RESPONSIBLE FOR THE ADMINISTRATION OF JUSTICE SHOULD ACT MORE FIRMLY THAN THEY NOW DO IN POLICING OUR COURTS. SOME JUDGES SEEM TO EQUATE JUSTICE WITH ENSURING THAT EACH SIDE TAKES AS MUCH TIME AS IT WISHES TO MAKE ITS CASE. WHERE WOULD WE BE IF THE SUPREME COURT OPERATED ON THAT BASIS?

A FREE SOCIETY CANNOT EXIST UNLESS THE PUBLIC HAS CONFIDENCE THAT JUSTICE THROUGH THE LEGAL SYSTEM IS AVAILABLE EQUALLY TO ALL; THAT COURTS CAN AND WILL DELIVER JUSTICE IN A TIMELY MANNER WHICH PEOPLE OF ORDINARY MEANS CAN AFFORD; AND THAT LAWYERS, AS OFFICERS OF THE COURT, ARE MEN OF INTEGRITY, WELL TRAINED, AND DEDICATED TO RESOLVING DIFFERENCES IN SOCIETY FAIRLY. FURTHER, THE RESPONSIBILITY MUST REST WITH EACH MEMBER OF THE BAR.

RESPONSIBILITY IS A UNIQUE CONCEPT: IT CAN ONLY RESIDE AND INHERE IN A SINGLE INDIVIDUAL. YOU MAY SHARE IT WITH OTHERS, BUT IT IS STILL WITH YOU. EVEN IF YOU DO NOT RECOGNIZE IT OR ADMIT ITS PRESENCE, YOU CANNOT ESCAPE IT. IF RESPONSIBILITY IS RIGHTFULLY OURS, NO EVASION, OR IGNORANCE, OR PASSING THE BLAME CAN SHIFT THE BURDEN TO SOMEONE ELSE.

AT ALL LEVELS OF OUR SOCIETY, THERE IS TODAY MUCH TALK OF RIGHTS AND TOO LITTLE OF DUTIES. HERE IS A GREAT OPPORTUNITY FOR LAWYERS, FOR MEN WHO HAVE BENEFITED GREATLY FROM THE LAW AND FROM A BENIGN AND BOUNTEOUS LAND. HERE IS THE OPPORTUNITY TO CONTRIBUTE SOMETHING IN RETURN.

THE FREEDOM AND PRIVILEGE YOU PRESENTLY ENJOY WILL NOT LAST, NOR WILL IT BE AVAILABLE TO FUTURE GENERATIONS, UNLESS YOU DO SO; UNLESS YOU ACT AS RESPONSIBLE PROFESSIONALS AND CITIZENS; UNLESS YOU TREAT THOSE WHO ACT IRRESPONSIBLY AS THEY DESERVE TO BE TREATED.

IN COMING HERE I FEEL A BIT LIKE EURYSTHEUS OF GREEK MYTHOLOGY. THE AUGEAN STABLES HOUSED THREE THOUSAND OXEN AND HAD NOT BEEN CLEANED FOR THIRTY YEARS. EURYSTHEUS DID NOT HAVE THE WHEREWITHAL TO CLEAN THE STABLES HIMSELF, BUT HE DID POINT OUT THE PROBLEM TO HERCULES, WHO CLEANED THEM BY DIVERTING TWO RIVERS.

IN SIMILAR VEIN, I CAN ONLY HOPE THAT SOME OF YOU WILL TAKE ON THE HERCULEAN TASK OF CLEANSING THE LEGAL PROFESSION. THIS IS WELL WORTH THE EFFORT, EVEN IF YOU HAVE TO DROWN A FEW OXEN IN THE PROCESS.