When Jim Hartman asked me to talk about the future of advocacy in the next millennium I wondered how I might address this issue. But as I thought more about the subject I felt comforted by the thought that none of us, no matter how smart, has any idea what the future holds. Ten years ago who would have thought that people would bring telephones to the supermarket? Who could have imagined the spread of the Internet -- if we even knew there was such a thing? Ten years ago very few of us had any idea that in two years the Berlin Wall would be torn down and Communism would disappear from Europe, nor could we have guessed that the entire country would be torn apart by the O.J. Simpson trial.

The last millennium took us from the Norman Conquest to the present. The next one, if we are intelligent and lucky enough to survive it, will take us into worlds that can only be imagined. But I have been a working lawyer and a working judge long enough to have seen extraordinary changes in the legal system, and I am willing to guess that these changes will shape the future of our profession --at least in the next century, if not in the twenty-fourth.

Let me take, as a first example, a change in an area of law in which few of you practice: the Mental Hygiene Law. A few years ago the legislature abolished conservatorships for the mentally incapacitated. Now we have guardianships, and each guardianship is different. Because we want to give people the most autonomy possible, the court is called upon to determine what powers the guardian may exercise and what powers may be left in the hands of the incapacitated person.

The process the court uses to make its decision is different, as well. Under the conservatorship system the court would appoint a guardian ad litem, who represented the interests of the proposed conservatee. Now we appoint a court evaluator, who serves on behalf of the court itself. If the person alleged to be incapacitated asks for it, we appoint a lawyer to represent him; but in most proceedings that person has no advocate at all.

I do not think this is a bad idea -- certainly not in all cases. But I want to call your attention to the fact that the court evaluator is a new breed to the legal world. He plays a very different role from the ones lawyers and court officers used to play. We appoint the court evaluator, who does not have to be a lawyer, to act as the court's eyes and ears. Instead of representing a client, and accepting that client's expressed wishes as his sole guide, the court evaluator must be an impartial investigator and reporter.

This is indeed something new. When we were in law school we might have heard about the contrast between our system of justice and the tribunals of European civil law countries. Under the common law a case is presented by advocates, each one a determined partisan for his or her own side. The judge stays neutral and avoids any contact with the facts except as they are presented by counsel. If a judge learned about a case from any other source he would recuse himself.

In Europe, on the other hand, the judge is an investigator. He has a staff of researchers and prosecutors, and learns as much as he can from his own resources.

This investigative model is alien to our system of justice, but it is beginning to appear on a case-by-case basis, almost informally. Our reliance on the court evaluator is one example. It is easy to think of others. Criminal judges receive pre-sentence investigations. In Family Court, and increasingly in Supreme Court, we as judges turn to social investigations and psychological evaluations commissioned by the court or by a law guardian. And in commercial matters and tort cases decisions are increasingly based on findings outside of the courtroom.

Why is this? One reason is the complexity and difficulty of the facts we must weigh. Science has enhanced our ability to trace cause and effect, but the reasoning that takes us from an instance of negligence to an injury gets harder to follow. It should come as no surprise that many courts have come under criticism for results that lack a solid scientific basis.

In highly publicized tort cases involving scientific issues, such as the breast implant, high-tension power line, and asbestos lawsuits, the factual grounds for the claims have been hotly debated by the scientific, legal and popular press. Jurors do not hear much of this debate. They depend entirely on expert testimony, and are often swayed by witnesses whose credentials meet legal muster and sound impressive, but whose theories have little following in the scientific community. Someone with an ax to grind or a passionately-held conviction often makes a more convincing witness than a dispassionate, scrupulous scientist, whose testimony may be accurate but sounds cautious and colorless.

Placing such complex matters in the hands of a lay jury is not always satisfactory. In some cases defendants pay out huge damage claims for injuries which few if any reputable scientists would trace to the product involved; in others, litigants may be deprived of a remedy based on other experts' persuasive-sounding but unfounded testimony. It would be unrealistic to argue that the courtroom has proved to be the best place to weigh these issues.

The public is certainly aware of this problem, just as they see cases like the McDonald's coffee lawsuit -- fairly or not -- as a sign of a tort system gone crazy. The huge proposed settlement of cases against the tobacco industry may or may not go through, but its very existence suggests that many people no longer rely on an adversarial tort system to seek justice when they have been injured by corporate misconduct.

Put these changes together with the increase in mediated and arbitrated settlements -- oftentimes at the hands of retired judges -- and the outline of the future begins to appear. The individual litigant no longer believes in the system, and the tort system itself has gotten so complex that it seems to suffer from a loss of confidence. We no longer rely on the competition between lawyers to reveal the truth.

We have also come to see that competitiveness itself as a problem. It is one I am much too familiar with, and in my courtroom it shows up in the increasing nastiness of practice and the growing difficulty I have in settling or compromising cases.

We are a litigious society, we are often told, and although that litigiousness is most apparent in the divorce courts it is striking enough in general litigation. The most trivial frustrations and disputes give rise to endless recriminations and bitterness. Every procedural step is like a battle zone. We routinely receive motions for preclusion orders because attorneys will not comply with proper discovery demands until they are threatened.

It is easy to blame lawyers for this mess. (Of course, these days it's easy to blame lawyers for any mess.) But pit-bull aggressiveness on the part of attorneys is only one side of the story. The clients, too, have a share of the responsibility. Too many of them don't believe they may lose. They cannot accept that somebody has to lose, and that it isn't always going to be their opponent. They cannot compromise or settle, because nothing less than total victory seems satisfactory.

Lawyers are all but helpless faced with this attitude, because our obligation is always to carry out the client's wishes. The major decisions in a case are never truly ours. We may think a client's choice to go to trial is an ill-founded one, or even one motivated by hurt feelings or a need for revenge instead of rational calculation. But we are essentially advocates, not therapists. In most cases our task is to pursue to the best of our abilities the course that our client has chosen.

This places many attorneys in a dilemma. They are caught between their obligation as officers of the court and their role as advocates. In matrimonial law we are developing programs to call the parties' attention to the needs of their children, and the effects their divorce may have on them. My county is adopting such a program, called "Parent Effectiveness And Custody Education" -- commonly known as PEACE. Jurisdictions that have instituted PEACE have found that cases settle faster, and parents have fewer problems communicating about custody and visitation issues. Lawyers support such programs because they make it easier to talk to angry, hurt or vindictive clients who have finally come to see that there are innocents caught in the middle of the divorce wars.

There are no such programs available in tort law, where the disputes are rarely as personal as a divorce. But the wars go on there, as well. Cases grind on for years, accumulating depositions and protective orders and motions and orders to show cause. Insurance companies will not settle even the most clear-cut cases, or they will only open their wallets on the eve of trial. This is not trial technique; it is a game of chicken.

And every additional delay and every motion means that the cost of opening a file and pursuing a case goes up. This hurts the client and it hurts the attorney. If the fee arrangement is a contingent one, the lawyer eventually has to stop taking cases, even ones of great merit, because the expense of pursuing the case skyrockets as the possibility of a verdict becomes more distant. If it is not, the client will usually abandon the case when faced with a determined, unscrupulous opponent with deep pockets.

As a judge I feel more helpless than anything else. Far too much of my time is spent riding herd on attorneys, trying to make the cases I have today run like the ones I used to see. To tell you the truth, it is a nightmare. I am busy all the time, but very little of my time is spent judging or even lawyering. I send out form letters demanding that attorneys speak to each other before appearing in court. I set scheduling orders and then have to remind attorneys to deliver discovery materials they freely admit are required. My time is frittered away in forcing attorneys simply to do their jobs. The legislature is clearly aware of the problem, because it has recently given me more tools to do this. I can now sanction you for actions that are frivolous on the facts as well as those unsupported by law, and I can fine your client as well as you.

But I also see a change in the types of cases that come to me. When I decide mental hygiene guardianships I find myself stuck in the middle of intimate family matters. I make decisions that used to be worked out among the adult children, or with the parish priest. In other cases I have decided and reviewed after appeal an almost violent dispute over a shared driveway. So much ends up in court that used to be worked out with the help of friends or neighbors.

Those friends are too busy these days, and the neighbors got transferred to the Sun Belt. People rarely see their families, and might consider their minister a good guy but nobody to talk to about serious things like business or family relations. The informal systems that we used to rely on to manage and resolve disputes have vanished, and so have the support systems provided by home, family, church and even precinct boss. It's every man for himself, and the only system left to hold the country together is the court system.

This burden -- solving conflicts that other support systems used to settle -- is an impossible one for the courts. It is impossible because the sheer volume and scope of the issues coming before us. In all honesty, it is also impossible because we do not have the expertise or the training to do what is really the evaluation of scientific research, or counseling or social work.

But the legislature, in its great wisdom, keeps throwing us new jobs. We decide when hospitals should have known about the AIDS virus. We have to list just what you're allowed to decide on behalf of your Uncle Edgar. We rule on whether you get to see your children from 4:30 on Fridays or from 6:00 p.m.on Fridays. We tell you where you can park your car, but only because you and your neighbor can't work it out without threatening to shoot each other.

Our court administrators and our legislature seem to be aware of this trend, but their answer is a strange one. They are trying to make the courts more inviting and friendlier to the public. What else can explain the recent moves to "reform" the courts by merging Family Court, County Court, the Court of Claims and others into the Supreme Court? Is there a demand by lawyers for such a change? I was not aware of one. Lawyers have never had great difficulty navigating our court system, and recognize the advantages that a group of more or less specialized courts has over a bureaucratic monolith. These days one has to be a Philadelphia Lawyer with years of experience just to master a field like environmental law or medical malpractice. We have very few general practice lawyers, yet a huge super-court like the one proposed demands jack-of-all-trades judges. It is a system that sets us up for failure.

It is clear that the sponsors of the bill did not think about such issues, or about the threat to judicial independence posed by the power to assign judges to any court anywhere in the state at the whim of administrators. Instead, I think, they just wanted a court system with a better facade -- a more attractive front end for public consumption.

In the same vein are half of our new court rules. The caseloads hardly justify their existence, at least upstate, but we are rolling out Commercial Courts in order to encourage businesses to bring their disputes to us rather than to the Federal system. We judges are now instructed to preside over civil jury selection, not because we can bring anything to the process but because meeting with a judge enhances the jury experience for those called to serve. The web sites and leaflets distributed by court administrators show a consumer's attitude towards the court system. Come buy our services, they seem to say.

Administrative changes are placing the same kind of burden on attorneys. With the Milonas rules in matrimonial cases the client is treated like a customer, with rights and responsibilities spelled out in standard form like an auto lease. The intimate attorney-client relationship, where the client came for advice as well as assistance, has been replaced by a customer who buys legal services from a "service provider." I know from personal conversations that clients in other matters have also adopted this attitude.

This is not a pretty picture, I am afraid. As our society continues to fragment, the courts face greater demands to intervene in everyday life and greater pressure to resolve issues that require more than just legal expertise. At the same time, the change in litigation styles and strategies makes it less likely that the important information gets before the finder of fact. The adversarial system is pushed to its logical extreme; courts have less control over attorneys, and attorneys have less control or influence over their clients.

Given these trends, what would a future tort system look like? In many ways it might resemble a workers' compensation scheme, in which funds are paid out after a supposedly independent panel weighs each claim. Future legislators may reduce the roles of the judge and the advocate or eliminate them entirely. Once we lose faith in the adversarial system, there are few alternatives but the reign of the bureaucracy.

I don't think for a moment that the public is best served by so-called "tort reform" or by a tort adjustment panel paying out claims like the workers' compensation board. But the choice is not between this partial justice and the idealized tort system we learned in school. For many litigants the choice is one between partial justice and no justice at all.

For the burden of these changes is definitely taking its toll on our system. No matter how many resources are available, judicial process cannot take the place of the social cohesion we have lost. We are, in the end, just another social institution, and depend on public trust. That trust is exactly what gets eroded by these changes and by the consumer approach to justice.

This is not just a blow to our pride. Society as a whole stands to lose, because the authority of courts and lawyers was what allowed our legal system to work. We have the power of contempt, of course, and should not be afraid to use it; but the legal system only works because people as a whole accept the judge's right to give an order.

At one time the courts stood at the pinnacle of our culture's system for resolving disputes. It was a last resort, the place you went to -- reluctantly -- when every other avenue had failed. Now we are the only place left, and the system you and I have devoted our lives to is cracking under the strain.

I do not know what the future will bring, but I can offer two alternatives. The first is a continuation of present trends. We will see lawyering as just another product, and litigious clients increasingly putting pressure on their attorneys to fight to the death. Courts will be clogged with vexatious and endless disputes, and judges will fight back with sanctions and contempt orders until we all fall into disrepute and get replaced by a bureaucratic insurance scheme.

The other alternative is a more hopeful one. In it, we as lawyers and as citizens strive to rebuild a sense of community, of responsibility, of shared values and of shared sacrifice for the good of others. We teach our clients, our colleagues and our neighbors that compromise, openness, and a willingness to see the value of other opinions and needs are all more important than winning at all costs. Maybe that way we can return our profession to the limited but noble role it once played. For all of our sakes, and for the sake of our children, I hope that future is the one that comes about.

Design © 1997 Michael Steinberg. Written contents © 1997 Andrew V. Siracuse. No copyright subsists in the decision texts, which are government documents.

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