Free Speech Issues

GUEST: Floyd Abrams
VTR: 4/19/84

I’m Richard Heffner, your host on THE OPEN MIND. It’s rare that I get very far or at least satisfactorily far enough down or up the road to right reason when I invite to THE OPEN MIND a professional, any professional, to be carefully, candidly critical of the guest’s own profession. Now, it’s rare, but it does happen. And I believe that it will happen today. For though I usually talk with today’s guest about freedom of speech, free press, and close government issues – after all, he rather well fits that wonderful descriptive, “A First Amendment voluptuary” – I do enormously respect attorney Floyd Abrams for the wide range and broad scope of his thinking about all issues relating to the quest for justice. And today I want to discuss with him Chief Justice Warren Berger’s recent address to the American Bar Association in which he suggested that for a whole range of reasons American lawyers may be responsible for diminishing public confidence in their own profession.

Thank you for joining me once again, Mr. Abrams. I hardly know where to begin, given the nature of the Chief Justice’s comments. But I thought I’d be cute, if you will, and begin by asking you to comment on a comment he made in the course of the speech. “Along with the decline of public esteem of our profession, we have witnessed the decline in the public confidence in the media. Some responsible journalists attribute this decline to an insistence of some of their clan in exercising their First Amendment rights to the outer limits or beyond. Some journalists acknowledge this, that this is an abuse of their First Amendment rights; others disagree”. And then he asks fellow members of your profession, “Does our profession’s low public standing derive, in part at least, from the insistence of some lawyers on exercising their First Amendment rights to the utmost?” And I wonder what your answer is.

ABRAMS: I don’t think so. And if it’s so, I think it’s a very, very slight factor. I agree with the Chief Justice that lawyers are not so well thought of these days in our country. But I don’t think it’s because they’re advertising, for example, any more than I think the journalists are ill thought of because they are exercising their First Amendment rights to the farthest extent the First Amendment will allow. I guess I think it is, I would start with the proposition that a lot of people who seem to have power in our society seem to be poorly thought of by our people. Lawyers come out badly on polls. Journalists come out badly on polls. Businessmen come out badly on polls. Congressmen come out badly on polls. Organized religion comes out badly on polls. I think it’s an error to focus on one group, or even two groups, as the Chief Justice did, and to see what is it that they might have in common, and to extrapolate from that the proposition that what they may have in common is what brings them into disrepute. I think a part of it is, people are suspicious, a bit cynical, and in general not so happy with those of us that seem for one reason or another to have some authority and power in our country today. And I think it’s a pervasive national problem which sweeps far beyond particular problems that lawyers or journalists may have.

HEFFNER: Okay. You make that statement, and let’s accept it. Not put is aside; put it right in the middle of the table. But what you build on top of that, that is the responsibility of lawyers themselves.

ABRAMS: Well, I think lawyers do have special responsibilities, and I think the Chief Justice is right when he says that they have the responsibility of service to the public.

HEFFNER: And they don’t carry out that responsibility?

ABRAMS: And they don’t often enough carry out that responsibility. Lawyers have always had public relations problems, so to speak, with the public, going well back in our history. It’s nothing new that he public is not so happy with lawyers. I think Carl Sandberg asked that question, “Why does the horse carrying the hearse of a lawyer seem to snicker as he walks down the street?” And that’s a long time ago. Lawyers have always been ill thought of. Now I think we make some special demands of lawyers, and we should, which we didn’t used to make so much. I think the demands are greater now. I think we ask of lawyers not far more than we used to, that they should be not only members of a profession, not only honorable people, but people who make a contribution to American society as a whole. And I think the public too often has concluded that lawyers too often simply aren’t doing that.

HEFFNER: You say, “Too often, that he public has concluded too often”, and once again I have the feeling that you’re talking about image, perception. And I really would like to get at what the Chief Justice was saying about what lawyers themselves do or do not do that lends itself or themselves, these actions, to this poor reputation.

ABRAMS: I think it’s a few things. On one level, it’s doing their job as lawyers in the way that we have tended to define their jobs. For example, lawyers who litigate in court are not very popular. They’re not very popular, in part, because they seem to lie to the public. They say things for clients – for clients, I emphasize – which are either unpersuasive or sometimes, indeed, untrue. Not that what the lawyer is necessarily saying is untrue, but the client isn’t saying what’s right. And the lawyer becomes seen as a mouthpiece, simply using his talents to speak for someone who doesn’t deserve it. Now, our Constitution says, in substance, that after all, clients don’t know how to talk for themselves in court. Lawyers do it. Lawyers are supposed to do it. They’re supposed to do as good a job as they can. It’s very hard, I think, for the public to understand that when a lawyer represents a rapist, a murderer, someone that’s committed a stock fraud, and does all the things lawyers are supposed to do, that there’s nothing wrong with that. Because I think that there’s a general public perception that there’s something illicit, improper in a lawyer standing up in front of a jury, let alone going on television afterwards perhaps as he walks outside, and saying nice things about a horrible person. That’s one problem. Beyond that, I think the public rightly perceives that lawyers tend to charge too much, that lawyers tend to think so narrowly – Carlisle said, “The law sharpens the mind by narrowing it” – and that lawyers tend to think so narrowly that they aren’t focusing at all on the interests of society, that they get so ground up in the adversary system, so ground up in winning, that there’s nothing else on their minds. And if that’s so, that doesn’t speak so well for the bar.

HEFFNER: But I’m a little bit puzzled, because I have the feeling that what I’ve just heard is that on the one hand, the adversarial system is somewhat constitutionally endowed, and it is the way in which we achieve justice; and on the other hand, the lawyer may be too much involved in it.

ABRAMS: Well, what I’m saying, on the other hand, is that that’s not all there is, that there is more to the legal system. There’s compromise. There’s what the Chief Justice rightly refers to as “alternative ways of resolving disputes”. That there are ways to settle cases which ought to be settled, ways to resolve disputes which ought to be resolved, and that too often lawyers move too quickly into court, that the bomb-throwers, as certain lawyers are known as, come into court and do a lot of things to real people, real live people who are in courtrooms, which are very unattractive. And that one of the prices of getting divorced these days in this country, in a really controverted divorce case, is having to walk through shoals which have nothing to do with divorce law, but simply how much pain one party can inflict on the other party. And the people who are doing the inflicting, the soldiers as it were, are the lawyers.

HEFFNER: You say, “The soldiers”. Soldiers take orders. Are you suggesting that they’re simply good soldiers who are taking orders?

ABRAMS: No, no. Sometimes they’re simply doing what they can do for their client properly. Sometimes, in other situations, because the lawyers are the experts, lawyers know how to inflict pains, a lawyer is not just a soldier but, so to speak, a torturer. The lawyer is the one who is saying, “We’re going to do this and this and this. He is really going to pay”. Or, “She is really going to suffer”. And there’s something not only morally unattractive about that, but there’s something which I think says what a crazy system this is. Why do we have – I’ve been focusing on divorce – but why do we wind up with so many cases like that in court, with so much in pain, with so much pain inflicted on so many people, simply to resolve a very significant personal status and money dispute between them? There’s got to be a better way to go about it. And one of the things that the Chief Justice was talking about, quite rightly I think, was to try to search out alternative ways to resolve disputes of all sorts. Commercial disputes, marital disputes, labor disputes. You don’t have to go to court all the time. It doesn’t serve clients well. It costs them an awful lot of money. It doesn’t serve the image of lawyers well, which isn’t as important, in my view, as the client problem. It doesn’t serve society well. And yet, so often, so may cases come into our judicial system which somehow could have been resolved without even starting down that road.

HEFFNER: How do you explain that?

ABRAMS: I think, for one thing, lawyers tend not to look quite hard enough for ways to resolve problems before they get to court. They don’t take the last step. Going to court is considered routine and normal, rather than going to war, which one would like to think is not routine, not normal, final extremity. I think the ethos of lawyers, and particularly lawyers trained in litigation, trained to go to court, hired because of their courtroom skills, is too often like that of the surgeon who wants to operate all the time, or all kinds of other people, the bankruptcy lawyer who advises someone too quickly to go into bankruptcy. Time and again, people who know about something go and do it. And the short answer is that very often you don’t have to do it. There are ways to avoid it. Now, the Chief Justice suggested that one of the problems was that lawyers were pricing themselves out of the market, and put more harshly, making an awful lot of money on clients who shouldn’t have to pay them. Now, he didn’t say in so many words that that was the motive, that ws the reason that lawyers were doing this.

HEFFNER: Would you say it?

ABRAMS: Not much. I don’t think it’s a major reason. There are some lawyers who would, you know, who do it for that reason, I think. But I think it tends not to be a major factor.

HEFFNER: What is? Thirst for blood?

ABRAMS: I think almost the…I was going to say, the institutional imperative…Almost the fact that what one is taught in law school, what one learns in the practice of law, unless one learns it in what I would argue to be the right way, is too easily how to maim, and how to do it to a point that the other person says, “Stop!” One of the problems with that, apart from the pain that is inflicted, is that it doesn’t really work very well, particularly if you have two good lawyers, which is to say, very often in our society, particularly if you have two clients with money to pay for lawyers that can spend the time, take the effort to really do all they are capable of. You have an enormous amount of pain inflicted on both sides, and very little productive result for either client. It is the legal equivalent of what we fear in terms of nuclear war. That when it’s all over, who can think about winners anymore? And that happens a lot in our courts, that people walk out savaged and bruised by lawyers who were thinking that they’re doing what they were told is the right thing to do.

HEFFNER: Were they told that?

ABRAMS: They think they’ve learned that. Professors don’t teach that in law school. But in part, professors really don’t teach, if I know…

HEFFNER: Teach?

ABRAMS: No, they do teach. They don’t teach about this too much. They don’t teach too much about litigation. We have had, as Chief Justice Berger said, an increase in the amount of law schools that teach advocacy courses and teach sort of the practical side of life. And that, in and of itself, is rather controversial. But most of what lawyers learn about appearing in the courtroom, most of what lawyers learn about how hard to push, about what the rules of the game really are, they learn in the courts, in their law offices, from colleagues, from judges. They learn what they can get away with, they learn what’s expected of them. And what finally comes out of all that, very often, is a harsh and cruel and disagreeable, and not always necessary, world.

HEFFNER: You make me feel as though you’re about to take down your shingle.

ABRAMS: No, no. No, no. No, no. Lawyers do good things. They do important things. They are indispensable in a functioning society like ours. And one of the things they do most and most importantly, notwithstanding all that I’ve said, is to solve disputes, is to help people find a way to resolve matters before they either strike each other or go to court. But not enough. Not enough at all.

HEFFNER: Now, how do you reverse the situation so that there is more emphasis upon conflict resolution that upon litigation? Or is it an impossible task?

ABRAMS: It’s very difficult. It’s very, very difficult. We have so many lawyers and so few judges, for one thing. We have procedures which, as Chief Justice Berger said, and I fully agree, allow for an extraordinary amount of pretrial discovery, as it’s called. Massive requiring of documents to be turned over. Depositions. Pretrial statements under oath going on for ten, 20, 30 days at a time. Judges tend not to be much involved with these things, because they’re busy trying cases and doing other things. And unless lawyers have problems with each other, they are told and taught not to go to court. Now, one of the things that the Chief Justice was saying, which is of special interest I think, is that his view is that judges ought to be more hands-on, that judges ought to be more involved from the start of cases, and that once a case reaches court, it’s a public matter, not a private dispute. And I think he’s right.

HEFFNER: Do you think that would limit the grounds of discovery?

ABRAMS: I think it would. I think if lawyers knew, and therefore clients knew, that they were going to have to make reports, so to speak, that there was a teacher out there, that there was someone they’re going to have to go to and say, “Look, here’s the information we want, and there’s the reason we want it”, just general things like that, “Here’s where we’re going, here’s what this case is about”, we would avoid many of the pointless and expensive and frivolous lawsuits which do affect not only the image of lawyers, but the overcrowding of our courts.

HEFFNER: Of course I do have to ask you the question: What’s your own bet as to whether this will happen sufficiently in the foreseeable future?

ABRAMS: I don’t think we can count on major changes being made. I think that many of the things Chief Justice Berger was talking about, many of them at least, would help. For example, in cases of discovery abuse, so to speak, if judges had the power and were, felt comfortable exercising the power to impose sanctions on lawyers and parties for abusing the system, sanctions, as he said, $5,000, $10,000, $20,000 sanctions, that would, I think, make people shape up some. What we need, I think, are the equivalent of teachers, almost of parents, saying, “Look, these are the rules. It’s not that anything goes anymore, and it’s not that you’re allowed to just start a lawsuit on some hope that maybe you’ll come up with something after you go along awhile. You’ve really go t o have something serious to say when you go to court. It can’t be frivolous. And you’ve got to justify it to a judge in some way rather soon after you start”. I think that would be a good idea.

HEFFNER: What about the opposition, though, to that position on the part of those who say that might, in itself, limit the opportunity for those who perhaps can’t afford the kind of legal advice and legal help that you might offer? What chilling effect could that have upon consumer groups, for instance?

ABRAMS: It could. One has to be careful that it doesn’t. Anytime that you say that you’re going to be tougher within the judicial system, you’re necessarily saying, “We’re going to run the risks that the judges themselves are going to misbehave or clamp down narrow, constrained things, constrict things too much”. All I can say about that is that if rules are drafted correctly, if judges are instructed correctly, I think that they can do both, that they can make it harder for people to act in a frivolous fashion, harder for people to commence actions in court which have no merit, harder for them to take lots of expensive discovery with no particular purpose except the hope of finding something, and still allow consumer groups and other groups to go to court and have a real shot of winning. But to me that are not necessarily inconsistent.

HEFFNER: Do you think that the Chief Justice was correct in emphasizing the prevalence of ineptitude in the legal profession? I’m trying to be as polite as I can. Lousy lawyers.

ABRAMS: The Chief Justice a few years ago gave a very controversial speech in which he said, I think, what, half the layers, or some extraordinarily high number, were incompetent. And after we all finished looking at each other to see which ones he meant, there was a lot of lawyer criticism of those numbers. And the Chief Justices’ response, in this speech which he gave, by saying, “Take a lower number. It’s still unacceptable; 25 percent, 20 percent”. My own sense is that even that overstates the nature of the problem. If I wanted to be harsh, I could start thinking of judges, trial judges that I’ve seen before who I have had my own problems with.

HEFFNER: But it’s not a contest. The lawyers are not that bad because the judges are worse.

ABRAMS: You’re absolutely right. And that’s why it doesn’t help to go back and criticize the judges. I think the Chief Justice, and others who have made the same point, are onto something. And while I don’t think that they have stated it quite as modestly and narrowly as it should be stated, there’s no question but that there is a significant minority of lawyers who appear in courts and do other things who aren’t very good at what they do.

HEFFNER: He seemed to put a lot of emphasis, right at the beginning of his speech in particular, upon numbers, and thought that perhaps, as he raised questions about the legal system, perhaps one of the problems has to do with the numbers of lawyers now practicing. Do you think there’s anything to that?

ABRAMS: Well, something. I mean, there’s something in the sense that, sure, if you’ve got a lot of people out there trained to do something, the likelihood is that they’re going to go and do it.

HEFFNER: And maybe not so well.

ABRAMS: Maybe not so well, and maybe too many of them will be doing it and clogging the courts. I mean, if you have a marathon race and you allow everybody in, you won’t be able to start the race because the streets will be so clogged. And there is something, I think, to say for the proposition that we are filling our society with lawyers, which does clog the courts in a lot of different ways. And one of the ways is that it tends to have s start cases which are not really very significant. And yet, I think that numbers are not a major problem, that lawyers really, the fact that we have more lawyers can mean that more people get served by lawyers. Most of our citizens still don’t have a lawyer. They still don’t have someone to turn to if they go through a stop sign and run over a dog, or if they get in trouble with the taxing people, or a lot of real-life situations which happen to an awful lot of people in our society. I think we can use these lawyers. I think what we have to do is to limit what they can do in our courts which can go wrong, which can abuse the system as a whole. But I’m not at all as troubled as Chief Justice Berger about the very fact of having a lot of lawyers.

HEFFNER: Would you yourself favor the imposition, if that’s the correct word, of public service duties upon lawyers, just as doctors have imposed upon themselves, by and large, a moral obligation, professional obligation to serve the public free?

ABRAMS: I think that lawyers ought to take upon themselves, and I also think lawyers are taking upon themselves more and more, an obligation to do a considerable amount of free work. I know that the Association of the Bar of the City of New York is urging law firms, and many law firms, including mine, are participating in a program where one represent to the Bar Association that each lawyer of the firm, on an average, will spend a certain number of hours a year on pro bono publico work. I think that’s a serious contribution which lawyers have been making and will be making. I don’t think it should be too numerically fixed in terms of what the obligation should be, nor do I think it should be legally fixed. But I think there are ways to encourage if not pressure lawyers. The Association of the Bar way is one way. I think public interests groups ought to do more on their own to try to interest lawyers in really working with them. A lot of lawyers don’t lead the most interesting lives, and would welcome, I think, a chance to make serious contributions to our society by taking on more in the nature of these cases.

HEFFNER: But of course you’re shifting the grounds from what a lot of lawyers would enjoy doing and benefit from doing. They can. No one is stopping them. You’re shifting grounds, it seems to me, to that from the question of a more obligatory nature to this service. And why do you draw back fro that? The First Amendment considerations that the Chief Justice referred to?

ABRAMS: No, no. I‘m sort of torn about this one. I do have problems with the idea of saying to lawyers that they must do a certain amount of free work a year, and presumably establishing some new bureaucracy or some old bureaucracy to check and see that they do it. I think law firms for example, lawyers, for example, make a contribution of a serious sort by supporting the Legal Aid Society but supporting other organizations, even if they don’t do the work themselves, which allow people who don’t have funds to be represented by people who know how to do it.

HEFFNER: But if there were some higher obligation, some individual obligation, wouldn’t that perhaps address itself to some of the other problems that we’ve talked about? A greater sense of officer of the court?

ABRAMS: I’ll tell you, I have a problem in addressing myself too much to what might be perceived as public relations problems. The important thing, I think, is that the job gets done, that poor people get represented, that middle-class people get represented in our society. Not because it’ll make lawyers look better of make people thing better of lawyers; but because that’s a social problem with which we ought to deal. And so the fact that if we have some obligatory system people might say better things about lawyers is not of much moment to me. I think that you could go a long way on a rather voluntary basis with a good deal of Bar Association activity and pressure, so to speak, peer pressure, internal peer pressure, without getting into obligatory requirements. There’s an additional problem.

HEFFNER: In 30 seconds.

ABRAMS: All right. I’m from a large law firm. It’s a lot easier for me to do some of these things than it is for a single practitioner who’s out there in court every day. To ask him to take off a lot of time to do free work is asking him to make more of a contribution than it is to ask me to do it.

HEFFNER: Floyd Abrams, you’re going to have to come back here and we’ll continue this discussion. Thanks for joining me today on THE OPEN MIND.

And thanks, too, to you in the audience. I hope that you’ll join us again here next time. Meanwhile, as an old friend used to say, “Good night, and good luck”.