The Gazette 1982

GAZETTE

JULY/AUGUS T 1982

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."

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, 50 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

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