The Law In America

THE OPEN MIND
Host: Richard D. Heffner
Guest: Louis Nizer
Title: “The Law in America”
VTR: 3/2/75

I’m Richard Heffner, and, as host/moderator/interviewer on THE OPEN MIND, I should approach my guests and subjects with a complete reserve, an aloofness, perhaps, a lack of bias. Well, today I admit to a total failure in this regard, for my guest, Louis Nizer, painter, composer, author is also the legal genius, the legal genius who has to me always symbolized much that is the best of his profession, the law. In his presence, I admit that I am less than impartial, but not less than candid in admitting so. So let me introduce Mr. Louis Nizer.

Mr. Nizer, it was just four years ago, almost to the day, that you joined Edwin Newman on NBC’s “Speaking Freely”. And if I gather correctly from the transcript, the state of our union was such at that time that you could first begin the program with the discussion of what seemed to be a new attitude toward the law in this country; a growing disrespect for it. And I wonder here at the beginning of the last quarter of the Twentieth Century, whether you feel that this disrespect has increased or decreased? Where are we going in terms of our attitudes toward the law?

NIZER: It probably has increased in the same proportion that rebelliousness ahs increased in every area of our lives, whether in sexual relations, business relations, governmental relations. There are two forces always competing with one another: cynicism and idealism. There is a wonderful idealistic stream in the law that has also gathered force. It’s a wonderful development now in the law, for example, that a young man who applies for a position in your law office insists as one of the conditions that he be permitted to give free service to indigent people up at Harlem and so on. This is wonderful. And the law firms do assign people for that purpose, both senior lawyers as well as young lawyers. That’s the idealism which expresses itself in a new era of social responsibility. On the other hand, to be very frank about it, there is a skepticism about all the prior values, and that skepticism envelops, also of course, the law, which stands for authority. And since the rebellion is against authority, the law suffers from it. I don’t think we should become too discouraged about this. There are the battles that run on in history, the waves of progressivism and conservatism. They change the laws, actually. Some laws become oppressive, and then we say, “No, this is too far”. For example, to give you another illustration: We have built our legal system upon the protection of the individual. It’s written into our Constitution. No other system of law does what we do to protect the individual in the criminal case. Unanimous jury; one juror disagrees, he’s freed. Beyond reasonable doubt. Beyond reasonable doubt’s a very tough standard. The defendant who has vital facts can sit back and say, “I won’t talk. You, Mr. District Attorney, prove me guilty”. And so on. We’ve done everything possible to throw a cordon of rights around the individual whose liberty may be sacrificed. And this is in the great tradition. On the other hand, with the crime wave across the country, there are many liberals who used to swear by these precepts who now say, “This is nonsense. We’re so strict now for the district attorney, that it makes it impossible for him to convict criminals”. And there’s a human cry about this. I remember a wonderful interview that Justice Black, shortly before he died, gave to a group of reporters, who said, “In view of the decisions which you are making up here in the United States Supreme Court, isn’t it almost impossible for a prosecutor to convict? And he said, “Of course. That’s the purpose”. Here you have the United States Government of America (that’s the title of the action), The United States against John Doe. You have, in the government, the FBI, the district attorneys, endless resources to convict. And here stands the individual fighting all that. Our genius of our Constitution is to say, “Now, we will protect that person”. Well, in view of the hard times in the sense of criminality, don’t we have to relax that? I think we should. And I think in many areas the law is relaxing some of these standards. Not too much. I wouldn’t do away with civil rights.

HEFFNER: How would you relax these standards?

NIZER: Well, for example, we now have many states which permit the district attorney to comment on the failure of the defendant to take the stand. He never could comment. It would be reversible error. When crime was individual, we stuck by these defensive precepts. But now that we have organized crime, and what has become worse in recent years, drug crime, drug addiction crime, we relax. The law is not a statue, a marble statue; it’s a living organism, and it adjusts itself. And now there are many statutes being passed, the constitutionality of which is being challenged. But many laws are being passed by Congress and the state legislatures relaxing some of what used to be considered precious rights of the individual.

HEFFNER: You say, “The law is not a marble statue”. Do you think it’s quite so elastic, though, that it can tolerate the stretching of older principles that it has to endure today?

NIZER: It has to. It must and it has. For example, the income tax was once declared unconstitutional. We know now it’s pretty constitutional when you look at your pocket. Many, many holdings by the United States Supreme Court have been reversed by the United States Supreme Court because of that elasticity. The one point I think that we should remember in order not to be discouraged is that, by and large, the system of law in the United States, with all of its frailties – frailties which will always easiest to some extent because of human nature – the law is not a scientific exercise. It has no precision, scientific precision. It is based on judgment of juries and judges, all of whom have certain predilections, certain prejudices. Justice Hughes, Charles Evans Hughes, I think, once put it admirably. He said, “Why do you expect the law to be definite and precise when you don’t expect it of an economist, or a doctor, or an architect? If you had ten architects, and you say, ‘What’s the best way to build this house?’, you’d have ten opinions”. And the he said, “The law is the most complex of all social organisms. Why do you expect it to reach the icy stratosphere of certainty?” Well, you can’t. And we do the best we can. But by and large, the American system of justice – and I’m not waving an American flag; I base this on my having had experience in South America and in Europe with judicial systems, and the Roman system of law – by and large we still ought to be very proud of what we’ve achieved here in the way of justice.

HEFFNER: Back four years ago and six years ago, at the time of the greatest revolutionary ferment, if one can call it that, in terms of our institutions, there was the feeling in this land among many people that the law essentially serves the establishment, so called. It essentially serves those who have a basic interest, economic, social, political interest in the status quo. Do you feel that’s true?

NIZER: No, I don’t. But I do recognize…I don’t think that’s true. I think the law strives in many ways to put special weights to protect by statute and other wise the indigent man. But there is a frailty built into the law which is built in to human nature and is part of our lives. President Kennedy once said that, “All life has inequities”. When they said, “How about the draft? One fellow picks a number; he’s first. The other fellow is ten-thousandth”. He said, “All life has inequities”. The law has its inequities. For example, I concede that a defendant in the criminal case or civil case who hasn’t a top-notch lawyer is at a disadvantage as against the man who can afford a brilliant lawyer. But, you have that inequity in all life. There’s the man who can only afford a small car. Can he sue the man who can afford a Cadillac? If you have a heart condition, are you entitled only to Dr. White or whoever the preeminent man is? Or do you have to go to your local doctor? There are certain things which perfectionism is to be admired and hoped for, but doesn’t exist. And we might as well face the reality of it.

HEFFNER: But how can you say that about an institution such as the law? One can say it, but how long will those who are first growing up in our system listen to that and not feel the whole institution of the law is, to some extent, corrupt? That it serves only the interest?

NIZER: Well, the truth of the matter is that isn’t so. For example, I’ve indicated that we have foremost lawyers who give their services free, as if in a clinic. Every law firm of standing assigns one of its partners to argue appeals or to represent indigent defendants. I think the law, as a profession, is as socially conscious certainly as medicine, and as architects or accountants or bankers. Much more so. But I concede that that isn’t perfectionism. I once put it epigrammatically, Richard. Perfect justice; impossible. Approximate substantial justice; acceptable. Efforts to make justice more perfect; always. And if we face the reality of that, if we recognize that belligerence, greed, envy, criminality, is still part of the human condition, and that the law doesn’t suddenly rise above all that, then we will fact is with a pragmatic, realistic sense, hoping always to improve it as we do, but never expecting it to be so perfect that if you find a frailty, you say the system is defunct.

HEFFNER: Of course, we do, I think, so many of us expect that lawyers, as doctors, will rise above the usual frailties of mankind. And I was quite interested when recently in The New York Times, there was a report about the former Watergate special prosecutor, Leon Jaworski, who was at the mid-winter business meeting of the American Bar Association and talked about the large segments of your profession. And he accused them of nonchalance and indifference towards maintaining law as a profession of honor. He said, “What constitutes my overriding concern is the attitude of indifference exhibited to the preservation of the profession as one of trust and honor, not only by lawyers who have practiced at the bar for decades, but as well by those who are entering the profession in current times”. And I wonder what your comment would be on that.

NIZER: I’m glad it was said, because the more such severe criticisms are made, the more sensitive and conscious the lawyer becomes of his need to go farther in that progress of perfection. But if I were to evaluate it as a truthful picture, I can tall you that having met lawyers, including Leon Jaworski, with whom I tried cases, in many states of this country, I have never found a lawyer of standing who didn’t have high character, and who wasn’t sensitive to the rights of the community. Indeed, I think that the two are incompatible. If he hasn’t got high character, he may win a case, but when that client has his will to be drawn and has to entrust his property, he’ll go to another lawyer.

HEFFNER: You talk about character. Is he a man of high character when his essential concern is not for the well being of society, but for the way in which his client is served? When he’s not serving society, but his client?

NIZER: You’ve posed a paradox. The best way to serve society is to protect the individual in the society in his rights. A lawyer doesn’t represent the community unless he happens to be representing a cause in which there are a large number of people involved. But by protecting the individual, those precious rights, he serves society best. Now that, of course, means that he must protect them honorably and properly. And there it is true that sometimes the temptation to protect the individual gets in the way of the ethical concepts, as they do in every profession. But that’s rare. I wonder if people really know what rare a bird the unethical practitioner is. I can tell you from direct contact that that’s a great rarity. I find that lawyers are so zealous for the rights of their clients, that they are completely dedicated. I wish other professions were as dedicated. But sometimes it drives them over the line to some extent. And we must correct and stop.

HEFFNER: Mr. Nizer, you talk about the right of the client. And I wasn’t so much talking about the rights of a client or of an individual, as I was talking about the interest or interests of a client. Protect the rights of the client; yes. I think there would be general agreement on that matter. But when the interests, the immediate interests of the client, not to serve a jail sentence, not to be convicted, is perceived by his attorney as entering into conflict, perhaps, isn’t that where we run into the trouble we’re talking about?

NIZER: Yes, but I wonder if it is understood – of course, if he violates any ethical rules, he must be punished and disbarred – but I wonder if it is understood that our system of balance is that the defense attorney, for example, says everything that can be said for his client because the balance will be that the prosecutor will say everything that can be said against him? For example, people misunderstand when you select a jury. No lawyer worth his salt tires to pick a neutral jury. He tries to pick a jury that will be sensitive to his client’s cause, will lean towards him. But so does the other fellow try to do the same thing for his client. And that is our theor4y upon which we get somewhat of a balance in the jury. And that’s the reason why we have 12 jurors, and not one. Because we wipe out some of the prejudices by the clashes within the jury. We find that there’s a sort of cleansing process. One man has a prejudice one way, and the other has another, and they’re both a little ashamed of each other’s prejudices. That is why the jury system works well. And, incidentally, that’s why democracy works well. The jury system is the microcosm of democracy. And there’s a scientific principle that I thin has gone unobserved about the democratic process. We wave the American flag for democracy, but there’s a scientific principle to it. And that is that you multiply judgments, you reduce the incident of error. As you multiply judgments, you reduce the incident of error. That’s why democracy works. That’s why juries work. Two heads are better than one, to put it simply. A hundred are better than ten. And I would rather trust 200 million Americans for a question of right or wrong – not on science or mathematics; I want one mathematician – but on right or wrong, I would rather test and rely upon 200 million Americans than the ten most brilliant professors in the world.

HEFFNER: Even when the decision of those 200 million Americans will be made on the basis of an adversary proceeding which…

NIZER: Yes. Because – not even – but because it will be made on an adversary basis. Each side will be harangued by the opposing side. And that refined selectivity which is the scales of justice within us, we each carry those scales. The art of the lawyer, or the art of the political leader, is to touch those scales so that they weigh in favor of justice and moral values, and we each have them within ourselves. We’re not conscious of that process. But when you hear two people argue, you say, “That fellow seems right to me”. What has happened is that, without the refined scientific evaluation which a lawyer or a judge will go into, you formed judgment by even looking at that man, trusting him. That is why incidentally, there is a principle in law that an upper court will never reverse a jury on a fact question, only on law. The reason for that is that the jury has observed the witness, and they have evaluated his honesty by observation, not only by the words coming out of his mouth. Whereas the upper court sees only the cold, printed record. They haven’t seen the witness. Now that quality of evaluation we do every day in our lives. You don’t have to be a lawyer. You go to a dinner party, and you come home and you say to your wife, “That fellow next to me, I wouldn’t trust him any farther than I’d throw a piano”. Now, what caused you to say that? If I had a tape recording of everything that ws said at that dinner table, it wouldn’t justify your conclusion. But you watched his eyes. You didn’t like the tone of his voice. You didn’t like the way he was affectedly flirting with the woman next to him. You didn’t like his raucous laughter when the joke wasn’t so funny. You formed a thousand almost unconscious judgments which affected those inner scales. That’s what democracy does. That’s what a jury does.

HEFFNER: Does that mean that you would oppose the more impersonal approach to the testimony of a witness that has been suggested recently by television, for instance, that former President Nixon would testify on videotape?

NIZER: Exactly right. I think the most important thing for a juror – and I have, by personal experience, observed this – is how the witness behaves, not merely what he says. How he says it. For example, on cross-examination, a lawyer develops antennae to these things. A witness who is answering with great felicity, and then suddenly, at some innocuous question, stops, looks up at the ceiling as if seeking the help of the Almighty for this answer. Looks at him. He gets no suggestion there. So, uncomfortably and with a slight stammer, he says, “I don’t remember”. Now, if you just read that in cold type, there’s nothing wrong with that answer. After all, you’ve asked him something that happened two years ago. But the jury that has watched the process has a perfect right to conclude that he remembers all right. He’s evading the cross-examiner. That sense of observation is what we depend upon for credibility. And that is the essence of the judicial system, really.

HEFFNER: Talk about that sense of observation, in terms of your own observations of the legal profession, the legal system over the years, and the way you protect it into the future. What changes do you see coming about, in the law and generally in our society, as those changes might effect?

NIZER: Well, I could put you through a very imaginative exercise, but I believe most of these will happen. I’ll reel off a few that will happen in the next 75 years, as I see it, purely in imagination. I think that we’ll increase the span of life to 150 years. I think that we will be seven feet tall on average. I think we will have learned through a laser attachment to our belts to send brain waves and messages to people, at least short distances. I think we will wear disks on our wrists which will record in a central medical laboratory all of our bodily functions 24 hours a day, and in the morning, when you get up there will be flashed on your white, circular room the information as to what’s wrong and what you should do, as well as the other information, including entertainment from satellites. I think that there will be a world government of probably 150 to 160 nations. That the voting power in the world government will be based on four factors: size, population, educational, and cultural standards, and productivity. I think, therefore, there will be no war, and there’ll be no war, and there’ll be a centralized government. Probably with the anthem, instead of the Star Spangled Banner, we’ll be singing the world anthem, One United World Among the Planets. I think that in matters of health, we will have achieved miracles of wiping out certain diseases. As to energy, I think we will look back and laugh at our present problem. I think we will learn how to create fusion instead of fission; imitate the processes in the sun and have free energy, as free as air, without pollution. That same will be true of food. I think that we will create food from hydrogen and other elements. I think we will have nuclear submarines, huge ships that will go to the bottom of the ocean and excavate the bottom of the ocean and find treasures undreamed of. And much, much more. Now, will human nature have kept pace? No. I think we’ll need another century at least. Darwin was much more skeptical. He said, “There are wild animals and tame animals. And man is a wild animal. And it will take five million years of evolution to tame him”. Well, I think we’ll cut down the five million years, but I do not think that humanism will have closed the gap with science.

HEFFNER: If that’s the case, and if you prophesy as you do, a world of science such as you see, an engineered world, what will happen to that nice criminal justice system based upon instinct, based upon the feeling of a juror, of 12 jurors, for that man in front of him and what he’s like? Doesn’t that mean that our judicial system too will have to experience a tremendous change?

NIZER: Yes. I think there’ll be great improvement in it. Just as, for example, there will be biological engineering to change the human being. That’s a dangerous process, but it’s coming. You know, I don’t know whether you know of experiments being conducted today in which a ground worm is fed to another worm, and the second worm acquires whatever little knowledge the first worm had. And with rats that go through a maze and find it very difficult until they learn. You take the piece of tissue from the brain of that rat and give it to another rat, and it goes through the maze much more quickly. We may ingest education. We may particularly be able to give electronic waves to the brain to get instant education, so that universities will be obsolete except for discussion.

HEFFNER: Won’t courtrooms also be obsolete?

NIZER: No, not obsolete, but quite different in technique. It has been suggested, you know, Richard, that if we gave truth serums to witnesses, that we would be much closer to the truth. The reason I’ve opposed this is that it interferes, intrudes upon civil rights today. But if we ever go to the perfected state whereby you could do this without dulling the man and instead of taking an oath he stands there with a white role, the courtroom becomes a medical department; it might be that we will do it. Certainly we will be able to televise proceedings and have the upper court see the witness, and thus improve the apparent procedure. The reason I’m against it today is it makes the witness too self-conscious, and that’s a great problem as it is. But someday we’ll be able to do it without difficulty.

HEFFNER: Are our legal institutions, particularly our schools, preparing the young people who are entering your profession for the future day, that truth serum day?

NIZER: I don’t think so. No, I don’t think so. I think our legal educational system needs many, many improvements, as everything else. But particularly there. I think that some of the training of the young lawyers is defective, because for example, there is no real course in trial tactics. The student learns about everything except for the practical experience of a trial. There’s an attempt recently to substitute for that. I was once, I undertook to give such a course at Yale, but found that you can’t practice law and teach at the same time, and gave it up. But we need that. We need…And that will happen when we have these new televised programs in the home, teaching processes.

HEFFNER: Mr. Nizer, you make the future and the law and the legal profession sound even more entrancing and enthralling. And I do want to thank you for joining me to day on THE OPEN MIND. And I want to thank, too, our guests in the audience. Those of you who join us each month. I hope you’ll join us again on THE OPEN MIND. Meanwhile, as a very good and old friend used to say, “Good night, and good luck”.