To Tell the Truth
Why lawyers must change
By Nick Clifton
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.
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.
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.'
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.
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.
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
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.
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
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.'
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.
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.'
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
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
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.'
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.
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.'
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
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.'
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.
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.
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.
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.'
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. +