Lawyering for a New Age

THE OPEN MIND
Host: Richard D. Heffner
Guest: Judith Kaye
Title: Lawyering For A New Age
VTR: 3/11/99

I’m Richard Heffner, your host on The Open Mind … and today is very much a red letter day for my program because I’ve finally inveigled her honor, Judith Kaye, Chief Judge of the State of New York, to join me here to talk about what seems now to be a constant theme in her ever more gracious and provocative remarks about the law, about justice, about the courts. That is the theme of change.

Now last year, when Chief Judge Kaye delivered the distinguished Sonnett Lecture at Fordham University Law School, she called it “Lawyering For A New Age”.

And I want to begin our program today by asking Judge Kaye how much will “New Age” lawyering derive from her assumption that the intensively adversarial nature of legal proceedings that unnerve so many of us today will at least somewhat be diminished.

In her Sonnett Lecture, Judge Kaye insisted that “It’s very expensive to scorch the earth … and even if some clients still crave rampant adversarialism, courts are becoming less willing to tolerate it”.

She put it squarely: “Rambo litigators can’t count on making it to Valhalla anymore”. And more recently, in her Maurice Rosenberg Lecture at Columbia Law School my guest assured students there that in their lawyering careers they will likely bump up against courts that, as she put it, are “built on a problem solving rather than an adversarial model”.

So I would first ask Judge Kaye if we, the rest of us, can count on that as well … and if the same will be true for criminal as well as civil proceedings. Fair question?

KAYE: Fair question. Answer: absolutely. Things have changed so much in society and a … one phenomenon I can state with certainty is that what changes in society, finds its way into the courts. And so we are facing a vastly changed docket in the court system. And I speak for the New York State Court System, which is the one I know most personally and best. We have tremendously increased caseloads. We have … we’re now well up over three million cases a year, hovering … getting close to four million. We have many, many Family Court cases, we graduate a lot of kids from Family Court to Criminal Court. We have a tremendous criminal docket. We see a lot of the same people back again and again and again in our court system. We have, in short, the problems that are frustrating and plaguing society, like drug abuse, domestic violence, dysfunctional families, child abuse … all of those problems are being brought into the courts. They are social problems, very, very difficult social problems. The legal issues are not necessarily as difficult as the social issues and so if we don’t put our heads together with anyone willing to listen, and try to solve some of these problems through the courts, we’re in big trouble because we’re just going to see the same population again and again and again and get our … have larger swollen dockets.

HEFFNER: But why does this impact upon the adversarial nature of the law. In fact, when you say the law reflects … the courts must reflect what goes on in society, it seems to me that we … as a society are becoming more and more adversarial.

KAYE: Well, I’ll give you an example. And maybe that’s the best way to answer your question. And if it isn’t you’ll let me know. But … take a low level drug abuser … a non-violent offender. We find that person in our court system … the same person dozens and dozens and dozens of times. The traditional approach, the adversarial approach is to have the prosecutor arguing zealously for what the law permits. The defense lawyer arguing zealously for what the law permits in defense of a client. And the impartial arbiter, the judge, administering justice. Justice, according to the traditional diet might be a conviction, assuming a guilty person, a short term of incarceration. And then we’ve got the substance abuser again. And in a year we could have that same person through the court system many, many times. The same thing is true in the Family Court, where we might have a dysfunctional family in the court many, many times and there will be an ardent adversary on one side, an ardent adversary on the other side and the family will leave with a disposition and be back again because the problem persists. Isn’t it a much better idea for the court to use its time, its resources, its coercive powers to try to bring together people who can help to solve the problem?

HEFFNER: Well, you know, you ask the question. The answer is clearly “Yes”, you’re right, but the reports in the press … that Fourth Estate doesn’t seem to indicate that what you say is necessary … and I know you believe that … feel that way very strongly … is what is happening.

KAYE: Well, I believe much more in what I see than in what I read. And …

HEFFNER: Say that again.

KAYE: [Laughter] …

HEFFNER: Explain yourself, Judge.

KAYE: Well, I … we now have and to give you one particular example … we now have more than a dozen drug treatment courts operating throughout the State of New York. By the end of this year, by the end of 1999, we will have more than 3,000 offenders in our drug treatment courts. I have attended many graduations. I don’t see them covered extensively in the press, I might say. But at these graduations we see families, we see people who have touched bottom and have come up in the other direction, and I, I hear tremendously moving stories about people who have decided to turn their lives around. We’ve held a hand out to them. We’ve brought together the prosecutor, the defense lawyer, operating on the same side of the page, instead of as the battling Rambo litigators. The treatment providers, the caseworkers … all of these people working together to solve a problem instead of simply to dispose of a case. To my mind that makes eminently good sense when we are dealing with what is in essence a tremendously frustrating social problem that seems to be eluding a lot of other people.

HEFFNER: Of course, if the proverbial man or woman from Mars were to arrive, and read our papers, read the reports on the courts, that would hardly be the picture that they get even in anticipation of more and more of that happening.

KAYE: Well, you’ve touched on something that is of very great concern to me. And that is that we don’t have a really well informed public on the subject of the courts and the justice system. Oh, the public knows a lot of things, the public from watching movies and TV shows and some real life trials of this century … the public knows about reasonable doubt and double jeopardy and a presumption of innocence and all of that. But as a society we haven’t really spent any time educating people in basic fundamentals of democracy. People don’t really know what goes on in the courts. There’s an awful lot of misinformation around. And one of the things that concerns me so much … apart from the lack of information, is the difficulty in getting out what are essentially good news stories. Or let’s say not bad news stories, not brutal violent episodes or foibles and fumbles of judges or lawyers. Those are hard stories to get out. So you don’t see much of that.

HEFFNER: You mean … good news is no news.

KAYE: I’m beginning to believe that. There are some nice stories every now and then, but when it comes to the courts, I think a large part of this is our fault, too. I think the courts, the lawyers, the legal profession, the justice system insiders, I think for many years we held ourselves aloof and remote believing that that was essential to our impartiality, our integrity. And some of that, of course, is very necessary. But we have to reach out to the public, we have to do a lot more. We have to deal with the Fourth Estate … that’s essential to us. But we have to get out directly and try to create a more informed public about the justice system. I think if we had a more informed public, that people would think better of the courts and the justice system.

HEFFNER: Well, of course, I was fascinated by the contribution you made to the Media Studies Journal back in the winter of 1998, in this piece that you wrote, if I can access it … not with a computer, but by turning pages, which is something we don’t do all that much any more. You write, “How the media portray us affects our ability to carry out our role”, which I found enormously interesting. “And it is no overstatement that the courts have not fared well in the media”. Now, you write “how the media portray us affects our ability to carry out our role”, what do you mean by that?

KAYE: Well, I think we depend very much on the trust and confidence of the public. We don’t have any might … the courts, the justice system … we have no might other than the trust and confidence of the public. That is what we depend on for our credibility, for our effectiveness, for people obeying, complying with our rules, our directives. And we have basically a very negative, cynical public … not necessarily convinced of the fairness of the justice system. I think it’s important for people to feel that the justice system operates fairly. That people who do wrong things will be punished. People who are injured will be compensated, that encourages a law-abiding society. And that’s what I meant by that comment, and regrettably there’s so much negative about us, so little positive about us, that I just have to conclude that it is eroding that basic trust and confidence that we need to have.

HEFFNER: By the way, why do you think that’s the case? Why do you think …

KAYE: Well …

HEFFNER: … you have such a difficult time with the Fourth Estate?

KAYE: … well, I think there are so many interesting peculiarities about us. We are fictionalized so well …

HEFFNER: So poorly.

KAYE: Well …

HEFFNER: … so much, but so poorly.

KAYE: I think. I think that’s part of the problem, on the one hand. And on the other hand we insist on speaking like in foreign languages, you know like we’re on the Appian Way, and you know, we hang on to a lot of our kind of ancient traditions. Wonderful. Traditions are important for stability and all, in the law. We want stability in the law. But we also need to be modern, we need to “get with it”. And I think that’s part of our problem. And we’ve come around to that. And by “we” I mean not just the judges, I mean the lawyers, too. I think we have to go out more, be less timid, be bolder about … gee, I’m here.

HEFFNER: I was just going say, well I got you here.

KAYE: That’s right.

HEFFNER: Well, you know, in this same piece you write “in most other areas of public discourse, the remedy for unfair comment …”, the kind of unfair comment that you relate to now, “or misleading speech is simply more speech. Truth ultimately outsells falsity at the free wheeling marketplace of ideas”. That nice John Milton notion, “whoever knew truth put to the worse in a free and open encounter”. You’re right, however, unfortunately this model has limits when the courts are concerned. And then you write, and you really have given up Appian Way language here, “When judges are sound-bitten, they can’t bite back”. And I think that’s just great. Do you feel that you really can’t bite back?

KAYE: I feel we really can’t bite back. I … it’s just … there is a certain … I spoke of the remoteness and the aloofness and all, which I think we’ve gotten too far away, we’re too distant. On the other hand, there is a dignity that goes with the justice system. There is a dignity that goes with the robes. And I think we need to maintain that.

HEFFNER: But then who is going to bite back? Who is going to confront the sound bites that are …

KAYE: Well, we’re not going to bite back, we’re going to speak as lawyers and judges but reach out more to the public. Not, not in sound bites, but in intelligent ways. And I don’t think we’ve ever made a conscious effort to do that. And I, I can’t believe … until we try that … I can’t believe that we will fail. I attended a symposium last week … we’re on to this case, the bar, the judges are suddenly we’re aware that we need to do more, we need to be more pro-active in reaching out to the community, whether it’s by Town Halls and forums, or going to schools, or working with teachers, or mentoring people. And so, we had a program, the American Bar Association did, and I was down last week … part of it … and one of the segments was the media. There were representatives of the media, and there was a quite frank discussion and I did ask at one point, how we could do better, how we could encourage better, better relations. And, doesn’t the media care that in the survey that was done recently that they’re the only ones who have scored lower than we did. And the answer I got back was “Well, that just goes with the turf” … you know, “if you can’t stand the heat, get out of the kitchen” kind of thing. Well, we don’t feel that way any more. We … of course, it goes with the turf, it goes with our turf, too. Because if you think of it, does anybody really want to be in court? Of course not, I mean defendants don’t want to be in court. Injured people would rather be compensated than have to have a long drawn out case. It’s not a place of happiness for litigants, for jurors … I hope we’re making it a little better. And then at the end of proceeding somebody’s lost … so it kind of goes with the turf that we should … there should be negative feelings about us. But that’s not a good answer. It’s not a good answer for us; it’s not a good answer for the media. I think we need to do more, both of us, to build public trust and confidence. And I think we need to do more together and I think we can do more together.

HEFFNER: That’s very nice, and Pollyanna-ish.

KAYE: I don’t think so.

HEFFNER: You don’t?

KAYE: No, I think you’re hearing the voice of experience.

HEFFNER: From the point of view of the judges’ chambers.

KAYE: That’s the only point of view I can speak from. I wouldn’t presume to speak from other people’s point of view. But on the other hand I have a point of view that’s, I think, worth listening to.

HEFFNER: Well, then, then … why did so many of the judges get so involved in a positive pushy way in this notion of cameras in the courts. Getting the media further with their noses under that particular tent.

KAYE: Well, you and I have had our “mild” differences on this subject?

HEFFNER: Enormous differences.

KAYE: [Laughter] As you know, I am mildly in favor of cameras in the courts. My colleagues don’t all agree, we have a very wide range of views on the subject of cameras in the courts. I want to lay that aside, however, because I don’t feel cameras in the courts are the answer to educating the public. I say I think there should be cameras in the courts because we’re a public institution, people should come to the courts, people should be able to turn on their TV sets, which is the way we seem to learn today, and watch the courts. I think that’s a fine thing to do so long as fundamental interests are protected. But I think we need to do more by way of education than running a trial, or the high points or low points of a trial. I think we need to do a lot more to educate the public.

HEFFNER: That means getting to the press. Have you been successful? That I know that here in New York your pro-Judge Kaye editorials in the New York Times delight me, they make me feel finally someone is taking notice of important work being done in an important area. How widespread is that good news?

KAYE: Well, the good news is very hard to come by. And I’m always delighted when there’s an editorial … anywhere … the New York Times or anywhere else. It’s hard to earn those and I think the court system is earning those. Not just Judge Kaye. But I think we are making efforts to be better, just to do our job better. And when that’s recognized it’s terrific.

HEFFNER: And you feel that one of the ways will be to reduce the adversarial nature of court proceedings.

KAYE: I have seen that work. And I am going to look for more ways to do that. We’re in a New Age, we have what I call The Challenge of Change. And, by the way, I think it’s tremendously exciting. I don’t think it’s anything to run from or hide from. We talked very briefly about the drug treatment courts where I have seen a very positive, a real improvement, over the traditional way that these drug … low level drug offenders, non-violent drug offenders, are prosecuted. We’re moving that same model into the Family Court where we have situation so often where a parent is a substance abuser, in danger of losing a child to foster care. My goodness, you would want that to happen, wouldn’t you. But we have then this foster care limbo for an average of four and a half years in the State of New York, an average of four and a half years that a child spends in foster care. How much better it would be for the court again to use its coercive powers to bring together treatment providers, case workers and all to give the parent a limited time, whether it’s a year or 18 months to get off whatever the … whether it’s alcohol or drugs and be a real parent, and if you can’t do that in a year or 18 months, then the child should find permanence elsewhere. But here’s another example of a problem solving court. The domestic violence courts. Again, another example of problem solving courts, where we look to victim safety. We look to batterer accountability right at the outset of the case, instead of again, this Rambo zealous representation to the letter of the law.

HEFFNER: Judge Kaye, something bothers me as you say that. I, I … you know how much I respect what you’re doing. There is a little bell ringing, and it is the bell that tolled for educational forces in this country a generation ago and more. When it seemed that the way to resolve so many social and even economic and other problems … but let’s say social problems, to use the schools to solve them. The schools, like the courts, reach out and touch so many people. And there are many people who felt that ultimately it was disastrous for the schools to be involved in quite so many different areas. Is there any concern that the courts in adopting this much more human and humane face may run into the same kinds of difficulties.

KAYE: Well, since you use the word “disaster” and all, I have to say … oh, my goodness, absolutely not. And we’re building very, very carefully … I don’t for a moment want you to think that we’re … I’m just kind of putting my arms around the courts and litigants and saying “be nice to each other”. These are cautious pilot programs and experiments built very, very carefully with a lot of help and a lot of cooperation and everybody’s looking carefully and evaluating carefully to see how they work. In millions of instances in our court system, I told you we’re inching up to 4 million … you would find the same adversarial fight to the death litigation where, you know, there’s massive discovery on one side, and massive discovery on the other side. You find that same model of litigation … what I’m proposing to you is not a tremendous overhaul of the courts. What I am saying is that we are in a new age, and we have to, as good managers, as good administrators, as very caring people, we have to study the problem. We have to step back and say, “is there a better way to do this?”.

HEFFNER: Okay, let me ask another question then, and again you know that I’m not dismissing or demeaning what it is that you’re suggesting. How well equipped is the judiciary, is the court system to engage in these new activities?

KAYE: Well, there I put the emphasis on the caution and the care. These new challenges … change is difficult. We, we have to build carefully, we can’t be reckless about this at all.

HEFFNER: And what do you …

KAYE: Well, technology is important. Training is important. We have a lot of networks where we … to go back to the drug treatment courts, for example, the domestic violence courts, people work very closely with one another, all across the United States. We’re all … many of us are discovering these same solutions at the same time. So, yes, it’s tough, it’s really hard and do we have the resources? We have tremendous human resources in the New York State judiciary. And we’re reaching out for other resources. We’re getting a lot of help from the Department of Justice, which is committed to a problem solving model in a lot of instances.

HEFFNER: How do you train judges to work in this new world, when they haven’t in the past. They’re the same lawyers who have become judges … adversarialists.

KAYE: Now, wait. You have to find the right people. You know you need people who are interested in doing this and open to this. And they do a lot of self-education. We have training programs, we have meetings with judges all across the country. These are the traditional ways to do it. You train yourself largely by self-study and experience.

HEFFNER: In the courts, what is the general attitude toward what you can call “alternative dispute resolution”.

KAYE: We’re a funny state … you know as I travel to other states I see much more receptivity to alternative dispute resolution. In New York, we’re a tough sell, but we’re working on it because, again, I think it’s one of the modern ways to solve a problem that we have to take a serious look at. And what I mean by that is that the doors of the courthouse are open. We are a public institution, we are there to serve the needs of the people. But we can find ways to use alternative dispute resolution. For one example, in aid of litigation, to trim down issues, to streamline litigation, to make the process work better. And that’s what we’re working to do. We’re not trying to shunt off our, our business. We’re not trying to send people out of the courts. What we’re trying to do is use modern, streamlining methods intelligently in aid of the court process.

HEFFNER: Why, in the minute we have left. Why is …

KAYE: Only a minute?

HEFFNER: Only a minute, Judge. Even you can’t extend that.

KAYE: [Laughter]

HEFFNER: Why are, why is New York a tougher sell?

KAYE: Beats me.

HEFFNER: [Surprised Laughter] Is that the extent of the answer?

KAYE: It’s a … I’ve struggled to understand because in other parts of the country, alternative dispute resolution works very well. But we are making great inroads with it. It’s really quite helpful to us. And you haven’t asked me about juries, even.

HEFFNER: Juries … yes. You’re going to make me serve. I’d like to.

KAYE: At every opportunity. You should want to.

HEFFNER: You have reformed the jury procedure, I know that.

KAYE: Well, we’re back to the subject we were on earlier, too. Because, I think probably the best shot … apart from the schools for educating the public, will be jury service that is courteous…we’re courteous, our facilities are decent and where we show you, first hand, that we have a court system that works well and serves the public well. That’s my dream.

HEFFNER: Someday, you’re going to have to sit here and tell me not about administrative and organizational changes in the jury system, but change in the concept of trial by jury. Promise you’ll come back?

KAYE: I do. I love that subject.

HEFFNER: Judge Judith Kaye, thank you so much for joining me today on The Open Mind. And thanks, too, to you in the audience. I hope you join us again next time. And if you would like a transcript of today’s program, please send four dollars in check or money order to: The Open Mind, P. O. Box 7977, F.D.R. Station, New York, New York 10150

Meanwhile, as another old friend used to say, “Good night and good luck”.

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.