Sunday, June 28, 2015

Witnessing Inspiration and Bankruptcy in the Breach

Heaven knows there is plenty in the world in which we live to sap our energy as lawyers, spiritually, professionally, and personally.Yet, this was an important week. A week in which two opinions handed down on successive days from the Supreme Court of the United States (SCOTUS) on same sex marriage and health care legislation will be labeled, for better or worse, with the all-too-often-used moniker "landmark decisions."

Likewise, on Friday, The President of the United States (POTUS) delivered the eulogy for Pastor Clementa Pinckney that James Fallows at The Atlantic called POTUS's "[m]ost fully successful performance as an orator." Given some of his past oratory (his star marking turn at the Democratic National Convention in 2004, for example) this is quite a declaration.

Instead however, it is a speech by a person I had never heard of, and delivered almost two months ago, that gave the dash of inspiration I occasionally find to help me gather up the amour to again go into the breach.

Senior United States District Judge John L. Kane delivered the keynote speech to the Colorado Trial Lawyers Association on May 7, 2015. I found the speech reading a blog post by Scott Greenfield at Simple Justice. Judge Kane gave the speech as the keynote at the CTLA annual Spring Dinner, and entitled it "Swan Song'. It can be read here.

Judge Kane spoke easily of the ways the practice becomes an almost insurmountable burden on those who participate in the trenches:
As lawyers, you seldom see people at their best. You frequently witness injury, oppression and injustice, and you are expected, even demanded, to take action against it. The one thing you cannot do, and still succeed as a lawyer, is to be indifferent to oppression and injustice. To succeed in this profession, to have a sense of well-being, to revel in it, you must have a fire in the belly. Performing legal services in a mechanistic way, measuring success by the billable hour or the size of the fee with no keener value, and ignoring or denying the moral and intellectual justifications for what one does, will turn even the most lucrative law practice into a humorless and moribund job.
Of course he is right. Fire in the belly is as necessary to a trial lawyer as creative tension is to an artist. If you have lost it, guile learned of experience may allow some continued short term success. Guile and single malt scotch whiskey, however, will only carry you so far before the costs of indifference, not to mention the single malt whiskey, will cause a deeper bankruptcy.

It is, however, not just the actual practices of trial law, but the institution itself that Judge Kane sees in decline:
Just think what plea bargaining and guideline sentencing have done to the practice of criminal law, or the shift from its investigative basis to one dependent on the prevalence of informants, or what arbitration, mediation and confidential settlements have done to the once vigorous adversarial presentation of civil controversies to juries in full public view, reported by an active and knowledgeable press. How can a society govern itself and respond to the dehumanization of values when its controversies and issues are lost in a vortex of sealed documents and depositions? Have we placed too much emphasis on the closing of the law’s work to public view and judgment? We do know that justice is something most people cannot afford and even fewer have experienced.
                                                                     *    *    *
[The] decline of jury trials to near extinction is a product of the law itself. Each of you knows more than I do about caps on damages and the devastating effects they have on people who are injured. It is simply not possible to put their lives back into balance when the gates of justice are only half open.
Judge Kane then rolls this loss of jury trials to the diminished lawyer in our communities, but with a twist. Those of you working in the courtroom trenches must realize, or be reminded, it is not just what you are building, brick by brick, that is important. It is who you are building it for. Those who will come after.
Whether trials continue to exist or, perish the thought, the legal system becomes yet another bureaucracy, the value of being a lawyer and the advocate’s sense of well-being will not change. When you provide order to families living in chaos, when you afford dignity to those who have been degraded, when you eloquently express the highest aspirations of our culture where otherwise there is greed and corruption, when you take upon yourself the awesome task of ending a person’s despair, in sum, when you become another’s champion, you succeed.
Judge Kane then speaks in his self described swan song of passing the torch and of the future. This is what really rocked my socks.
We haven’t reached bottom yet, but history teaches us that revolutionary ideas fail when there is no revolutionary class to support them.
Profound words. So off to the barricades I go, again, no matter how much those ramparts may be sieged.

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