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TCL > February 1999 Issue > With Apologies to Justice Berger

February 1999       Vol. 28, No. 2       Page  17
CBA President's Message to Members

With Apologies to Justice Berger
by Ben S. Aisenberg

A newsletter of the Litigation Section of the American Bar Association contained an article in which a Texas attorney called the speech Chief Justice Warren Burger gave to the American Bar Association in 1973 "a good speech, with unintended results."1 In that speech, Justice Burger criticized the competence of trial attorneys, saying they came to court unprepared, with shoddy pleadings, sorry legal theories, and inadequate briefs. Justice Burger deplored the "low state of trial advocacy and the consequent diminution in the quality of our entire system of justice."

The author of that article maintains that, in doing so, Justice Burger unintentionally created havoc in the legal profession in the following ways: (1) he turned trial lawyers into litigators, (2) he created a new profit-driven industry, (3) he raised the cost of litigation by unknown multiples, and (4) he added months to the time it takes to resolve litigation.

I have a couple of observations of my own as to the consequences of Chief Justice Burger’s remarks: (1) they destroyed some of the professionalism and civility that existed between attorneys; and (2) they caused lawyers, under the guise of competency, to emphasize the concept of "zealous advocacy," at the expense of judicial economy.

As a result of Justice Burger’s comments, states passed mandatory continuing legal education ("CLE") requirements. Not a week goes by in which we are not bombarded by pamphlets from every conceivable CLE provider offering us exotic trips to Hawaii, Las Vegas, or the Bahamas to obtain those coveted CLE credits that will enable us to become more competent attorneys. With my apologies to transactional lawyers, in the forefront are the programs on trial advocacy that will change us from a trial attorney to a super litigator. Other courses teach us how to draft pleadings with every conceivable cause of action that could be raised now or in futuro and with every defense known to the legal profession since the advent of Lord Coke.

What is Competency?

What does competency mean? Have we, in the name of zealous advocacy, become overly aggressive in the practice of our profession? Has it reached a level never anticipated by the Code of Professional Responsibility? The term "zealous advocacy," which was a subtitle under the Code, no longer exists in the Rules of Professional Conduct, except in one of the Comments. I believe more sins are committed under the guise of "zealous representation" than any other concept in the legal profession. In the pursuit of competency, are we breeding a generation of lawyers who take advantage of every opening, however small, in their representation of clients? Is a result the development of a legal system characterized to the nth degree by the O. J. Simpson trial?

A Need for Perspective

Yes, it is our obligation to represent our clients fully and effectively. However, this must be tempered with a modicum of practicality. Even in a hungry and competitive profession, we must be more selective in the types of cases we file and vigilant in the extent to which we go to represent clients. Must we file every possible motion and raise every possible argument—ad nauseum? Are some of these tactics ego-generated, rather than client-oriented?

With all of the attempts to achieve "competency," are we losing our perspective? Are we sacrificing civility and professionalism for the concept of "win at all costs"? Most important, has this emphasis on competency improved the quality of justice? If it has, then my comments should go unheeded. On the other hand, if the type of competency we are teaching is counterproductive, mustn’t we rethink our objectives? In a computer-generated age, in an era of Court TV and media frenzy, an over-abundance of attorneys practicing law and crowded courts, perhaps it is time to reassess the concept of competency as being a means to an end rather than an end in itself; the end being justice. Isn’t this what Chief Justice Burger really meant by his remarks?



1.Cousins, "Good Speech—Unintended Results," Vol. 22, No. 3, ABA Litigation News (March 1997).

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