The Gazette 1982

GAZETTE

JULY/AUGUS

T 1982

even greater. For in these matters, the law office is

usually the public's only official resort for matters of

law. Here, an understanding of its functions and

purposes would include the number and kind of non-

adversarial matters. How many wills do we prepare?

How many and what kinds of transactions and con-

tracts is the law office called on to guide and

complete?

Though the customary analysis of dissatisfaction

with the administration of justice is confined to

disputes that enter the courts, in my opinion dissatis-

faction really starts earlier in the chain of human

events. It may start with the functions of the

gatekeeper— the lawyer who directs the route to the

court. But, though less announced, I sense that it

starts earlier. Pound is heard to say that there are

causes for dissatisfaction with any legal system.

Why? Because, in my opinion, there is dissatisfaction

that the court system needs to be used at all. The

greatest dissatisfaction is not that it — the court

system — is used but rather that it is used in

situations that might otherwise have been prevented.

I mean something more fundamental than other ways

to solve disputes. I mean that there is and ought to be

virtual resentment in those aggravating and costly

dispute situations in life that need never have

occurred.

I mean something more. The legal system exists

not only to resolve disputes, and lawyers in our midst

perform not only to minimize the risk of disputes, but

also to maximize legal opportunities. In the absence

of disputes, the court system is not to be blamed for

the failure of a person to obtain positive benefits, for

the court system is not concerned with them. If there

are people entitled to food stamps who do not have

them, the court system does not call that benefit to

their attention. If a business would be better

governed or more profitable as a corporation than as a

partnership, the court system does not inaugurate the

decision concerning the legal structure of the

business enterprise. If a person seeks to accomplish

the most favourable estate tax results, it is not to the

courts to which that person should turn for a

satisfactory solution.

James W. Hurst, the illustrious scholar of

American legal history, put the point forcefully:

"(The lawyer) has, in the bar, collectively constituted

one of the key institutions of social order in our

history . . . the lawyer as a member of the bar, (is) a

part of the totality of lawyers constituting an

important agency of social organization. It is too

narrow a view to define the instruments of govern-

ment as the executive, legislative, and judicial

branches. Realism requires that we recognize that

lawyers in their collective impact, as the bar, con-

stitute in effect a fourth arm of government." Hurst,

Marquette La%v Review

594, 598 (1967).

We often credit courts with reaching out into the

development of law. Law professors are fond of

pointing out to embryonic lawyers the creativity of

appellate courts in advancing or developing legal

theories, many of which have large societal effects.

We should also point out that, while the appellate

court made the pronouncement, that pronouncement

may have been derived from the presentation to the

court made by a lawyer.

We need to make studies of the influence of

lawyers' briefs on the decisions, reasoning, and

language of our appellate courts. My professor

friends whose field of research and teaching is the

appellate court are unable to direct me to scholarly

accounts of that influence. And, on a different level, I

point out that it was not the court that started the

process that enabled it to have the issue before it, or

even the lawyers who helped frame the legal issue,

but rather the client, as litigant, that enabled the

process to get started and keep moving. We could

learn a great deal about the administration of justice

by in-depth investigation of the motives, factors,

influences, desires, and costs of the clients.

My point though is that the law office has made

and continues to make an imprint on society that,

although seemingly idden from view, has had

enormous effects and

sotto voce

gives rise to great

satisfactions in the total legal order. I illustrate with

both old and new examples — examples that derive

from explorations into the preventive law practices of

lawyers.

The lender of money, if curious, may ask about the

origin of the provisions found in negotiable

promissory notes — the provision, for example, of

attorney's fees when enforcement of a note becomes

necessary. Think about the origin of that provision.

Certainly the clause must have been an invention not

of the courts but rather of a lawyer collaborating with

a client. The earliest installment obligation provided

for periodic payments. Later that provision was made

— not by a court, but by a lawyer — for acceleration

on default of an installment. The entire creation of

trusts is traceable to lawyers. The spendthrift trust

must have arisen in a law office long before any court

ever saw it. Similarly the pour-over trust. The birth

of the convertible security took place in a law office.

These inventions are examples. They happened

quietly. Somehow they spread into the fabric of

society and became part of the total legal and

operating system in our society. The institution in

which they were created is the law office. The story of

the inventions that have taken place in that

institution has yet to be told.

Our leaders in jurisprudential thinking have not

given an adequate account, they have written about,

analyzed, and theorized about the decisions of the

courts. They have not regarded decisions made by

lawyers as worthy of decisional theory. Roscoe Pound

hardly mentions these sort of phenomena in his five

volumes of jurisprudence. Julius Stone in his

extensive three volumes does have one on lawyers'

reasoning, but that volume and that reasoning

concern appellate court reasoning, not law office

nonadversarial thinking and reasoning. Nonadver-

sarial decision processes must include the client as

part of the conceptualizations. Pound never mentions

the client in his five volumes. Stone is able to write

three extensive volumes without mentioning the

concept of the client. Benjamin Cardozo wrote "The

Nature of the Judicial Process," which may not be a

definitive account of that process, but neither he nor

anyone else has done an equivalent treatment of "The

Nature of the Lawyering Process."

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