Our Legal System: How to Fix It?
VTR Date: June 15, 1995
Guest: Abrams, Floyd
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THE OPEN MIND
Host: Richard D. Heffner
Guest: Floyd Abrams
Title: Our Legal System: How to Fix It?
I’m Richard Heffner, your host on The Open Mind. And, in a sense, this Open Mind is a continuation of one started here many months ago with a distinguished, constitutional lawyer guest who had earlier written in The New York Times Sunday Magazine that, “It is time to ask whether it really leads to justice to have a system in which lawyers spend far more time avoiding truth than finding it.”
As a much-honored partner in the prestigious law firm of Cahill, Gordon & Reindell, the brilliant advocate, Floyd Abrams, has long tried cases and argued appeals in constitutional law. Yet, I had never before known him to be quite so exercised over what lawyers in America actually do in practice, if not in theory. Indeed, the title of Mr. Abrams’s Sunday Times article was “Why Lawyers Lie.”
Anyway, about mid-program last time, our discussion of what one might describe as the less attractive aspects of our legal system led inevitably to the question of what my guest would suggest if he could simply refashion our imperfect system. But, being an imperfect interviewer myself, I let that one just lie there, which gaff I would like to make up for today, coming back now to that rather compelling question:
Even if it’s not totally broken, how would you fix it? That’s the question, Floyd.
ABRAMS: Well, there are some modest things you could do. If we’re going to have a jury system, for example, we have to make it more representative. We’ve got to get more middle class, upper-middle-class people on them. It’s too easy to get out of jury duty, and it is no longer thought of as a sort of badge of citizenship by too many people. And one of the effects of that is that we wind up with juries that are not the peers that they’re supposed to be of the individuals that they’re judging. We wind up with people who can afford to take time off because they work for the government or they work for hospitals or they do work where their employer either has to let them off or, as a matter of course, lets them off and just substitutes other people for them. We don’t get enough people on juries who are home otherwise. We don’t get enough people who are on juries who are in businesses. Don’t get enough lawyers, teachers, and the like on juries. And that’s a start.
Now, we have to make it sort of more jury-friendly. We have to find a way to attract the people who now shirk jury duty. Certainly the O.J. Simpson case is not an invitation for people to go sit on juries. The lesson of the jury part of that case is certainly one of discouragement to the public as a whole, because they fear sequestration, they fear unpleasantness. They fear being tied up for interminable periods of time on cases which may wind up with no resolution at all. Those are things we can deal with, I think, within the framework of the system. Those are problems that we have to deal with, with the current system.
What I was raising in my New York Times article and what you and I were talking with each other about were sort of more systemic changes. If we could start all over again, and if we were starting all over again, what would we do? Would we really say to lawyers: “Your role in our society is this and nothing but this, zealously to represent your client within the rules, but within the rules to do everything that you’re allowed to do”?
HEFFNER: That’s a question.
ABRAMS: That’s a question.
HEFFNER: What’s the answer?
ABRAMS: Well, you’ve caught me sort of mid-thought, which has taken months even to get to here. I think we have to change the focus, to some degree, of what the role of the lawyer is in our society. I think we have to move a little bit away, or maybe more than a little bit away, from the lawyer simply being viewed and simply being asked to play the role of representative, spokesperson, advocate, and to place upon lawyers some greater level of obligation to the system…
HEFFNER: To the system, or society?
ABRAMS: Well, to the system of law, I would say, and therefore to society. What that would mean would be then, in cases in which, for example, a prosecutor has worked on drug cases for an extended period of time in a supervisory role of some significance, that when the prosecutor leaves the DA’s office or the US attorney’s office, that he ought not go to work for drug chieftains very soon, or maybe at all. Maybe as a mailer of the new rules of ethics that I’m drawing, we ought to say that after you have some positions you just can’t take the other side, even though that’s what you’re trained to do.
HEFFNER: Would you say that for prosecutors generally? You picked out drugs.
ABRAMS: No. I picked out drugs because there’s a peculiar body of knowledge that I believe prosecutors in that area learn. Knowledge, orientation, and the like, dealing with the DEA agents, dealing with the DEA people. Where I think, in that sort of situation, going to the other side is a sort of betrayal. Now, is it always a betrayal for a prosecutor to become a defense lawyer? No, that can’t be the rule.
HEFFNER: Wait, wait. What do you mean, “It can’t be the rule”?
ABRAMS: No, I mean, we ought not to want it to be the rule, because we want to have good defense lawyers, and the best training for them is to have done some level of prosecutorial work. There’s nothing inherently wrong with someone that has had some prosecutorial experience doing some defense work. What’s wrong is when you trade on a certain level of knowledge that you’ve built up to go and become the scourge of prosecutors and the public in a certain sort of type of cases. I think it would be… Take me. I think it would be wrong for me, even if I had no media clients left in my life, which has generally involved representing media defendants in libel cases and other cases like that, even if they abandoned me, for me to just sort of switch sides and suddenly make use of all the sort of detailed knowledge that I’ve developed through the years of how the press works, to become a plaintiff’s libel lawyer.
HEFFNER: You see, that’s what I’ve been waiting for you to do.
ABRAMS: I know that. I know, I know. And now and then I’m even tempted. But it really seems to me that, you know, I’ve learned a lot from and for certain people, and to switch, to become something else would truly be a betrayal. I look at England, where I wouldn’t say that at all, Ifs not what people do there. Lawyers take one side one day and one side another. What’s the problem? They also don’t become as associated with one side or the other side.
HEFFNER: But that’s the real problem.
ABRAMS: I don’t know if it’s a problem.
HEFFNER: That’s the problem you started off to deal with.
ABRAMS: I don’t think that is a problem. I don’t think the association, on reflection, at least. I don’t think being associated with a side or even a cause is the problem. I think it’s more of a problem when people do that and then switch, as with the drug example that I cite to you, or myself, that I cite to you, because I think that’s a sort of moral or ethical betrayal. I think lawyers all the time, I think lawyers, more than anyone, all the time, live in a world of moral ambiguity where they’re asked to do things which we ask no one else to do, to take positions that they find unpersuasive, to represent people that they think or suspect have done wrong in one way or the other. And we live with it all, we justify it all, by saying we’ve built a system, and the system is that the lawyer is to represent. It’s not me, it’s not myself I’m representing; it’s a client. And within the rules, we say, you’re supposed to represent that client. And think, as a general proposition, that that’s defensible. Where I think we’ve gotten off the tracks is that we haven’t asked of lawyers almost any other obligation at all to society. We haven’t asked of lawyers that they refrain from pressing positions and suggesting things and saying things that they have very good reason to know aren’t true, couldn’t have been true. It is as if we take away from lawyers any moral compass other than that of being the advocate and not, you know, cheating and stealing on the way to the courthouse.
HEFFNER: But doesn’t that derive naturally and necessarily from the position of being the associate and the spokesman of the client?
ABRAMS: I think that one can do both, and I think society has a right to ask of people – even if they are playing the role of spokesman, not just for a client but a side, or as I say, a cause – I think society has a right to say, “Well, all right, you can do that.”
HEFFNER: Up to a point?
ABRAMS: “Up to a point. We will, to some extent, discount what you say, because we know that this isn’t all you; this is them. But beyond that, we want you to be thinking, at the same time, in certain respects, on behalf of society itself.”
HEFFNER: But, you know, Floyd, that’s what, in our last discussion, and in that piece that you wrote for The Times, that bothered me so. I puzzled over it so, because you said, ‘Don’t believe me. Don’t take what say, because I am, of necessity, representing this other side.” Now, how can you be a little pregnant that way? How can we permit that to take place? I never know then when to believe the spokesman attorney.
ABRAMS: Oh, I think you should always be dubious. I mean this very seriously. I think you should always be dubious of the spokesman attorney, because the spokesman attorney is playing, basically, a PR role. Now…
HEFFNER: But I thought you were going to say then that he must not play that role. Let us, if you are revising our system, let us handle that problem which is otherwise insolvable, unsolvable, by saying, “No, you may not do that.”
ABRAMS: I don’t think so. I don’t think… I’ve thought about it a lot, and I don’t think that’s the problem. Or I don’t even think that’s a big problem. That’s a reality. The public has to understand that, you know, when Alan Dershowitz represents Mike Tyson, and he’s on a television program, and someone says, “Is Mike Tyson guilty?” he cannot say, “Yes”; he cannot even say, “You know, really, maybe he is. I don’t know.” He has got to be the spokesman. And so we have to discount for that. It’s a foolish question to ask even. What the question has to be interpreted even to mean is: Speaking for Mike Tyson, tell us this, would you? And then you’ll hear the answer. But what I’m saying, Dick, is that I think we’ve come to a point — and the Simpson case does help us to think about this – we’ve come to a point where, when we see lawyers sort of preening about, taking positions, articulating things on behalf of clients that are not just on behalf of clients, but obviously almost palpably untrue, because their clients have done something wrong, and because that’s where they’re starting from, that we do have a right as a society to say, “Look, yes, you represent the client. Yes, if you want to get out-of-court statements, you’re speaking for the client. But we want something more of you. What more? We want you not to be saying things, not even to be taking positions on behalf of the client, simply because they could somehow be true. There’s got to be some level, some higher level of plausibility than that, you know, who knows, maybe something didn’t happen. You have to have a, in effect, a good-faith basis for taking certain positions on behalf of client, which is not a standard that a lot of people in the bar generally adhere to.”
HEFFNER: If you do, what happens to the general texture of the adversarial system?
ABRAMS: Well, you’d be moving a little bit away from it. You’d be moving away from a sort of anything goes as long as it’s within the rules, to changing the rules, so as to say, “Well, look, it’s really not anything goes. Don’t say — don’t even argue – that there is a conspiracy unless — unless — there’s a really good-faith reason to think that there may be.” Now, lawyers now would say, “Look, I won’t do it if I think it will hurt my client,” because obviously it’s counterproductive. But I mean something beyond that. I was struck by a question I heard someone ask a lawyer not so long ago. And the question was something like, “Suppose you were a prosecutor, and you thought that… and you could get away with — maybe you can’t; you probably can’t – you could get away with sort of veiled references to race in the same way the defense lawyers are trying to do that in the Simpson case. Should you do it? Or does the system call upon you to do it if I once tell you either you won’t get caught or the system doesn’t bar you from doing it?” Now, it’s a misleading example only because prosecutors really aren’t allowed to make appeals to race. Should defense counsel be allowed to make such appeals?
HEFFNER: What’s your answer? What’s your answer?
ABRAMS: I would say yes, but only where there is a genuine, good-faith basis for concluding that race had something to do with the charges brought. Not because the jury is of one complexion rather than another, and it might work. And in a sense, in America you’ve always got some basis for suggesting that race is involved in prosecution, say, of someone of color. But, you know, really something hard, something serious. My concern is that I think we’ve gotten to a point where, you know, facts don’t matter at all in some oases, or at least the way some cases are tried. I remember that old line of Norman Thomas where he was accusing Henry Wallace in the ‘48 campaign of just not caring about reality at all. And he said, “Mr. Wallace thinks he is so firmly in possession of truth that facts don’t matter.” Well, lawyers have gotten to the point now where, because they’re assigned or chose or been hired, retained to represent someone, facts don’t matter. And to some extent, we have to live with that, because to some extent we don’t want lawyers to be judges; we want them to be advocates. But when we ask, “Are there limits to their role as advocates? Are there some things which we’re prepared to say to them, ‘That’s not just stupid, but it’s insulting. It’s socially destructive for you to say these things without any basis.’ Why can’t we pass a sort of judgment on that? Why can’t we say, “We really don’t expect you to do that. And we’re upset at you if you do that.”
HEFFNER: Now, if I were to say this, Floyd, you would probably jump down my throat. You would say, “How could we do that? How could we arrange that? How could we manage that? Dick, are you going to make that judgment?” In an era of deconstruction, where everything is assumed to be politics, everything is politics; nothing is fact. How do we, how do we begin all over again?
ABRAMS: Well, we have to think about the rules first.
HEFFNER: What rules?
ABRAMS: There are rules – canons, we call them –which govern lawyer behavior. They encourage some of the misbehavior, as I view it, that we have by placing zealousness in one’s representation as the only virtue really, so long as one doesn’t engage in positive law-breaking or the equivalent. The hard question, which you rightly ask, is: How can we ask someone to be zealous and think of anything other than the client’s interest? How can we… What instructions are we to give to lawyers? We, as society, now. What would we want to say to them? I mean, we can look around the world, and I mean, not every lawyer, not every great lawyer even, around the world, behaves the way our lawyers behave.
HEFFNER: Our great lawyers.
ABRAMS: Even our great lawyers behave. We don’t want to move towards a society of, you k now, the old Soviet model of the Lawyer being the representative of the state and not of the client. But we do, we can move, I think, away from the lawyer as simply hired gun, as simply the embodiment, the spokesman of all the evil the client may have done.
HEFFNER: But why do you. In our last program, you mentioned the French system. You mentioned systems in which the court has the responsibility for fact-finding. And by that token then, I would imagine there would be less room for the, what I call the “deconstruction work’ that goes on among lawyers.
ABRAMS: Well, that’s true. And Judge Rothwax, for example, is writing a book on systems abroad. Other people are looking into other ways that other civilized societies look for justice. All of them involve a lesser role for lawyers. Nowhere in the world where lawyers play the role that they play in this country. And I’m still searching, if you will, for some way to sort of reconcile my concerns about the, at least the amorality of lawyer behavior in this country, on the one hand, and the desirability of the lawyer acting as zealous advocate, on the other. And it’s not easy.
HEFFNER: Do you think you can patch this system? And it is patching that you’re talking about.
ABRAMS: Yeah, it is patching. It is patching. I think so. I’m really reluctant to give it up, even if you allow me to play the role, and what fun it is to play the role of draftsman of a new system. I just talked to two jurors who sat in murder cases, one in Philadelphia, and one in New Jersey, recently. Both cases took less than eight days. One was an acquittal, one was a conviction. Both jurors left pleased with the system, or relieved at the state of racial relations in the country because they got along so well on these juries, because everybody searched for truth together. I was really reassured by talking to people who, in their own lives and recently, had found that the system worked. But we know now that a lot of it doesn’t work, and) think we have to at least keep striving to find a way maybe to move even farther away from cur system than I suggested.
HEFFNER. Floyd, what do you think is going to happen?
ABRAMS: Well I think we are likely to have some moves away, in California and maybe around the country, from some o f the rules which now protect defendants, whatever happens in the Simpson case. For example, California requires a unanimous vote by jurors. Not all states do. And the Supreme Court, back in the early ‘70’s, concluded you don’t have to have a unanimous vote in a state court in a criminal or civil case.
HEFFNER: In capital crime?
ABRAMS: Yes, even for a capital crime. I think we’re likely to see more states move away from unanimity. Now, it’ll be a sort of an odd result of the Simpson case, because I suspect it’ll happen even if you do not have a nearly unanimous verdict. But I think that one of the effects of the public seeing a lot of the case is an anger and a frustration at the system, irrespective again of what the ultimate result is in the case. And I think a part of it is the amount of time things take, and the difficulty of coming to resolution by a jury, at least the perceived difficulty. I think we are going to see — indeed we have seen it — in the Simpson case itself, shorter trials. All to the good. I think the level of public frustration and juror frustration in that case is likely to lead more and more judges – and every judge that I meet says, “Well, I wouldn’t do it this way, and I wouldn’t do it that way, and it wouldn’t happen in Queens, and it wouldn’t happen in New Orleans, and it wouldn’t happen in Tulsa that way” – but I think we are likely to see streamlined trials, and that’s a good thing.
HEFFNER: We have 30 seconds left, Floyd. Where will the impetus come for these chances?
ABRAMS: From the public, and not from the bar. I think that…
HEFFNER: That’s pitiful, isn’t it?
ABRAMS: Yes. The bar is defensive. The bar feels under attack always. And the more deserved it is, the more resistant it is. It’s just part of the human condition. But I think it will come from the public. And (think it’ll generally be in the right direction.
HEFFNER: Floyd, obviously we have to continue this conversation. You’ll come back and we’ll talk about it some more. Floyd Abrams, thank you for joining me today.
And thanks too, to you in the audience. I hope you join us again next
time. And if you’d like to share your own thoughts about our program today, please write: The Open Mind, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts, send $4 in check or money order.
Meanwhile, as another old friend used to say, “Good night, and good luck.”