To Tell the Truth

Why lawyers must change

By Nick Clifton

The biggest issue facing the justice system today is building and maintaining public trust. That is the considered opinion of Thomas A. Zlaket, chief justice of the Arizona Supreme Court. Zlaket maintains that the third branch of government, because it is nonpartisan, relies almost completely on public trust and confidence in order to survive and retain its authority.

Zlaket, described by the publication Court Review as 'one of the country's most influential jurists,' brings that topic to front and center as keynote speaker for the Oregon State Bar Convention on Sept. 21. His speech, 'Truth or Consequences: A Proposal for the Legal Profession,' is scheduled for 9:30-10:30 that morning in the Seaside Convention Center. The talk provides one ethics credit.

The chief justice, a frequent speaker before legal audiences, will address some of 'the core values of the legal profession,' he says, high among those being the need for 'truth telling. Telling the truth is at the center of our profession. It's the need to tell the truth, to tell the truth to everybody, all the time.'

A public decline in respect for lawyers in particular and the profession in general is undermining that trust, Zlaket says. A chief concern of his is the public view that attorneys do not always tell the truth.

Zlaket, a former president of the Arizona Bar Association, was a successful trial lawyer in Tucson before joining the state supreme court. According to Court Review, as a lawyer, Zlaket headed a commission to reform civil case discovery. That effort resulted in what are known in that state as the 'Zlaket Rules,' reforms instituted in 1992 that: placed limits on overall discovery; provided for required initial disclosures; limited most depositions to no more than four hours; increased judicial involvement in managing the discovery process; and encouraged alternative dispute resolution. He also has testified in support of those reforms in other states.

Zlaket began a five-year term as chief justice in 1997. In that role, he has continued to push for change in the culture of the courts to promote greater emphasis on 'customer service,' a characterization that has drawn bristles from some lawyers and judges but which he defends as a proper description of the justice system's role as a public service enterprise. He has encouraged several other reforms, including those to the attorney discipline system.

Zlaket says that lawyers think lawyers are indispensable, but the public doesn't. Quoted in The Montana Lawyer, Zlaket says the legal profession has given more to society than any other profession: democracy, equal rights and more. But, he adds, a proliferation of book titles is quite telling about where we are today: The Lost Lawyer. The Betrayed Profession. Why Lawyers Lie. The Moral Compass of the Lawyer. The Soul of the Law. Running from the Law. Overall, says Zlaket, there is a growing perception by the average citizen that greed, hostility and incompetence have pushed attorneys off the path ordinary citizens walk on.

He tells attorneys: 'Be intolerant of lawyers who drag us down. Don't use ethical constraints as something to hide behind. Stop leading an artificial existence and start getting some honest feedback. Get out of the office. Don't beat your breast and say, 'We are so misunderstood.' People have our number.'

Building public trust and confidence is an ongoing effort, Zlaket stresses. 'It is something that needs to be done perpetually by dedicated people who want to expose the public to the court system and who want the court system to be responsive to the public.' He told The Montana Lawyer, 'We are learning from citizen input that our justice system is too slow, too expensive, too complicated, too mean-spirited, not user-friendly and failing in its promise to provide equal justice to all.'

For Zlaket, the most pressing aspect is the status of pro se litigants and what to do with them. He expects to see 'a tidal wave of pro se litigants.' The statistics show an increase in self-represented litigants who either have chosen not to hire a lawyer or cannot afford one, and so they represent themselves. Courts are seeing these people in all kinds of civil cases, not just domestic-relations courts, he adds.

As long as we cannot solve the problem of providing lawyers to people because of the cost of lawyers' services to ordinary citizens - the average American - 'we are stuck with the problem of self-represented litigants at the door,' he says. 'They walk in the courthouse, they want justice, and they're entitled to it under the Constitution, just as much as the person who has a lawyer.'

Judges, he insists, have an obligation to take care of those who are self-represented. Every time he discusses this issue with a group of judges, there are some who say: 'You know what? I don't want to make it easier for pro se litigants to come in the courthouse doors. I don't want to hear about your self-service center in Phoenix where you help these people fill out forms and file their own cases. That and all the rest complicate our lives as judges, because it's harder to manage a case with self-represented litigants.'

And Zlaket responds: 'You're supposed to be judges. This justice system doesn't exist just for people with lawyers. How can we really justify that kind of an approach? We need to find solutions for unrepresented litigants to make it easier, not harder, for them. Otherwise, we're going to turn away a lot of people who need justice and who can't get through the door.'

According to Zlaket, we've designed our present system with the idea that most people would have attorneys. 'So we put in all these rules, evidence, procedures that are designed really for lawyers to understand and apply. We have a lawyer-designed system made for lawyers.' Zlaket adds that if a judge tells someone who is not represented, 'You are at a distinct disadvantage in this courtroom,' then 'we're chasing people away from the very forum in which they're entitled to get some adjudication of their rights and obligations. I believe it's our obligation to reexamine the way we do business and to reexamine the rules that we follow.'

When he was president of the Arizona Bar Association more than a decade ago, 'we used to concentrate our efforts on how to get legal services to the poor,' he said. 'But the middle class in those days was able to afford a lawyer once in awhile.' Now the term 'the poor' is including more and more Americans 'when you refer to the ability to hire a lawyer.' Law firms are giving more and more pro bono hours every year, yet we keep falling behind in terms of the number of people who don't have attorneys, he says.

Nobody wants to go to court, he says, 'but I would like people to walk out saying, 'I think I got treated fairly.'' He stresses the need for judges to talk to the public on occasion, to 'come out and show their human side.' Otherwise, they're easier to characterize as 'aloof and arrogant. When the decisions then come out, it's as if they're handed down by some oracle coming from on high.'

Zlaket wants judges out 'talking about the justice system, talking about how good it is, about how careful we try to be, and how (we're) still human and we sometimes will make mistakes.' As lawyers and judges, 'we're not special; we're no different from anybody out there in the courtrooms. We live in the same neighborhoods ... we just have different jobs.'

When Arizona instituted jury reform, a lot of people thought we were 'a little wacky' he allows. But it worked well, and now others are starting to try a similar tack, he says. Zlaket says the judicial branch of government is the most tradition-bound of all. 'We are the slowest to change, the most reluctant to change. It may have something to do with the fact that we (lawyers) are trained to rely on precedent.'

When he entered government service, he was stunned at the number of times people would respond, when he asked why things are done a certain way, 'Because it's always been done that way.' No business surviving today does not periodically reevaluate itself and look at the way it does business, and try to improve to meet the changing society, Zlaket emphasizes.

Zlaket tells of attending a meeting not long ago where a number of chief justices were present. The talks were about making changes, how to make change happen in the system. After this went on for a good while, a man in the back of the room who was a guest at the meeting held up his hand.

He was chief counsel for a huge, multinational corporation, and he said: 'I've listened to you people talk. And I have to say, you just don't get it. We're in an age of instantaneous transactions. My company will do hundreds of millions of dollars' worth of business on the Internet with the push of a button. And I hear you talking about how you're going to make changes slowly. That's the reason why big business is looking for alternatives to civil dispute resolution. We're going to private judges, arbitrators and mediators.

'We can't wait three to five years for a decision from your court system. We've got to make important business decisions based on what you decide. Tell us whether we win or lose, but tell us quickly so we can make those decision and get on with it, because our economy is moving too fast, and you are moving too slow.'

'Then he sat down,' Zlaket says. 'You could have heard a pin drop in that room. The message was: We as a court system can't sit still. We constantly need to look at how we operate, how we move paper, how we move cases, how we process people through the system, how we file. Electronic filing is not going to be here in 20 years; it's going to be here in two years, or less. Technology is changing every six to eight months in a revolutionary way.' +

Portions of this article were adapted from Court Review, Fall 2000 issue, used by permission. +

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