The Catholic Lawyer Volume 16 Number 3 Volume 16, Summer 1970, Number 3 Article 4 The Partnership of Bench and Bar Edward D. Re Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl Part of the Judges Commons, and the Legal Ethics and Professional Responsibility Commons This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. THE PARTNERSHIP OF BENCH AND BAR' EDWARD D. RE* Y OUR GRACIOUS INVITATION to deliver the Mr. Justice Robert H. Jackson Lecture does me great honor. It is an honor, however, which gives pause for a variety of reasons. Not only do I succeed a formi- dable array of outstanding scholars and jurists, as prior speakers, but I also address a distinguished assemblage of state trial judges each of whom, I am sure, is master within his field of the law. These facts constitute a mandate to strive to bring you a message both significant and timely. The administration of justice is the cause that brings us together. Our common bond is the love of the law, respect for the courts, and an understanding of the legal profession. Nothing less than the doing of justice is our common mission. Each of us here is privileged to par- ticipate in an ageless process designed to achieve justice here on earth. Also we share common goals and ideals, and reverence for the law as an instrument of justice. "Justice," said Daniel Webster, in his eulogy of Mr. Justice Joseph Story, "is the great interest of man on earth." In that sense we may properly be regarded as "ministers of justice." Yet we cannot lose sight of the reminder of Charles Evans Hughes, in his Presidential address to the American Bar Association, "that the justice to be administered is justiceaccording to law."' I am confident that all of you must share my deep concern and regret that so many topics could be chosen that reflect the crises in which the administration of justice finds itself today. A sense of history will t The Mr. Justice Robert H. Jackson Lecture, National College of State Trial Judges, Reno, Nevada, Aug. 18, 1970. * Judge, United States Customs Court. B.S., St. John's University, 1941; LL.B., St. John's University, 1943; J.S.D., New York University, 1950; Ped. D., Aquila, Italy, 1960; LL.D., St. John's University, 1968; LL.D., St. Mary's College of Notre Dame, Indiana, 1968; LL.D. Maryville College, St. Louis, Missouri, 1969. 1 Hughes, Liberty and Law, 11 A.B.A.J. 563 (1925). THE PARTNERSHIP OF BENCH AND BAR show that within our society and our pro- "the spark that kindled the white flame of 3 fession there are seeds that permit both progress." self-evaluation and self-improvement. So I Writing in 1937, Dean Wigmore stated speak not as an alarmist, nor even as a that "the great result [of Dean Pound's ad- reformer, but rather as one who has not dress] was that the soul of the profession only conviction in our profession, but also had been touched."'4 There can be no doubt confidence in its ability to continue to per- that, for more than a generation, that ad- form the lofty mission of doing justice ac- dress had a profound influence on the im- cording to law. provement of the administration of justice Surely there is no thought of shirking in America. responsibility, or neglecting problems re- Dean Pound observed that "[d]issatis- quiring solution. There is, however, an faction with the administration of justice is awareness that the problems are not really 5 as old as law." He then set forth the new. Preceding generations also have been causes of dissatisfaction under four broad faced with the responsibility of adjusting categories: and improving in order to meet the needs of a developing and evolving society. (1) Causes for dissatisfaction with any legal system, (2) causes lying in the pecu- This awareness seems indispensable in liarities of our Anglo-American legal our democratic society whose ideals and system, (3) causes lying in our American lofty goals, as expressed by our founding judicial organization and procedure, and fathers, were admittedly only aspirational. (4) causes lying in the environment of Such a society, it must be remembered, is our judicial administration.6 not a fully developed society, but rather one that is, in a sense, unfinished, still develop- There is so much in Dean Pound's ing and evolving. memorable address, that is so valuable and so pertinent today, that one is tempted, Anyone concerned with the administra- almost beyond endurance, to treat and tion of justice would profit greatly by read- comment upon all of the points that he so ing Dean Roscoe Pound's notable address wisely and eloquently raised. I have re- entitled: The Causes of Popular Dissatis- strained myself, however, and have chosen of Justice.2 faction with the Administration to discuss only one small phase of his Delivered as far back as 1906, at the 29th critique. That phase pertains to what is annual meeting of the American Bar Asso- commonly called the adversary system. ciation in St. Paul, Dean Pound's address has been described by Dean Wigmore as The adversary system has been described 3 Wigmore, Roscoe Pound's St. Paul Address of 1906, 20 J. AM. JUD. Soc'Y 176 (1937). 2 Pound, The Causes of Popular Dissatisfaction 4 Id. at 178. with the Administration of Justice, 29 A.B.A. 5 Pound, supra note 2. REP. 395 (1906). 6 Id. at 397. 16 CATHOLIC LAWYER, SUMMER 1970 as that competitive system for the adminis- of course that a judge should be a mere tration of justice that prevails in our umpire, to pass upon objections and hold country under which "the judge is relatively counsel to the rules of the game, and that the parties should fight out their own game passive, listening, moderating, and passing ' in their own way without judicial inter- on what is offered to him." I have chosen ference. We resent such interference as to discuss the adversary system because its unfair, even when in the interests of justice. misunderstanding and abuse have seriously The idea that procedure must of necessity affected, if not distorted, the proper role of be wholly contentious disfigures our judicial the lawyer in the American system of the administration at every point. It leads the administration of justice. Hence I have most conscientious judge to feel that he is merely to decide the contest, as counsel chosen to speak of the role of the lawyer in present it, according to the rules of the the decision-making process. Since I deem game, not to search independently for the role of the lawyer to be crucial in the truth and justice. It leads counsel to forget judicial process, I have labeled my re- that they are officers of the court and to marks: The Partnership of Bench and Bar. deal with the rules of law and procedure exactly as the professional football coach Under the second "main head" entitled: with the rules of the sport. It leads to ''causes lying in the peculiarities of our exertion to "get error into the record" Anglo-American legal system," Dean Pound rather than to dispose of the controversy discussed "the common law doctrine of finally and upon its merits. It turns witnes- contentious procedure which turns litigation ses, and especially expert witnesses, into into a game." He observed that a "no less partisans pure and simple. It leads to sensational cross-examinations "to affect potent source of irritation lies in our Ameri- credit," which have made the witness stand can exaggerations of the common law con- "the slaughter house of reputations." It tentious procedure." prevents the trial court from restraining the bullying of witnesses and creates a Noting that it is probably only a survival general dislike, if not fear, of the witness of the days when a lawsuit was a fight be- function which impairs the administration tween two clans, and that it is peculiar to of justice. The inquiry is not, What Anglo-American law, Dean Pound declared do substantive law and justice require? that "it has been strongly curbed in modern Instead, the inquiry is, Have the rules of English practice."" After observing that the game been carried out strictly?10 "with us, it is not merely in full accep- tance," but that "its collateral possibilities Dean Pound's indictment and bill of par- have been cultivated to the furthest extent," ticulars were devastating when first uttered. Dean Pound stated: I have eliminated several counts that are no longer true today, and that have been Hence in America we take it as a matter cured by modern codes of practice and pro- cedure. Enough, however, remains of the contentious spirit to continue to give life 7 Cheatham, The Lawyer's Role and Surround- ings, 25 ROCKY MT. L. REV. 405, 409 (1953). 8 Pound, supra note 2, at 404. 9 Id. at 405. 10 Id. at 405-06. THE PARTNERSHIP OF BENCH AND BAR to the charges pronounced in 1906. This, of ance from the sporting theory of justice," course, means that much more remains to and a "near future when our courts will be done in rekindling the spirit of profes- be swift and certain agents of justice, whose sional responsibility in bench and bar so decisions will be acquiesced in and re- that each may appreciate the proper role spected by all."' 15 that it must perform in our system for the All of us share that profound hope, and administration of justice.