Ladies and gentelmen, you have just heard that I am an appellate judge from maine. What you haven’t heard is that when I can, I read science fiction. For those of you who read science fiction, I'm sure you can appreciate that an offer to come to Roswell for any reason was an opportunity not to be missed.
In the spirit of science fiction and especially Roswell, I'm going to ask you to suspend your disbelief and travel with me in time 300 years into the future. You are still in Roswell and still at a conference, but your luncheon speaker is a legal historian who has spent the last few years studying the evolution of civil justice in the southern part of North America, especially in the country that was then known as the United States of America.
The historian really loves his subject and has been speaking for about an hour not appreciating that a luncheon speaker should never talk more than fifteen or twenty minutes. He belatedly realizes that his audience is starting to doze off and he says:
“People, people—wake up—I'm getting to the best part, but let’s quickly review:
The colonists came. The first few were mostly farmers and soldiers. No lawyers, no barristers, and no judges. In England, from whence many of the early colonists came, since 1495 or for 125 years, every person who couldn’t afford a lawyer in court was provided one free of charge. In North America in the 1600s there were nowhere near enough lawyers to go around. Looking back 700 years to that time, it is hard to imagine this land without the millions of lawyers and judges we have today. How did they survive?
Since the colonists couldn’t replicate the civil society in England, they did the best they could.
As you know for the first 250 years after the mayflower landed if a poor person was dragged into court, he (and it was almost always a he in those days) had to fend for himself.
Starting in the late 1800s, legal aid societies were formed in large cities usually to assist immigrants of a particular nationality. Many private lawyers recognized their responsibility to devote some of their time to pro bono service, but the vast majority of the poor were treated quite poorly in the courts of that day.
In the last third of the twentieth century the united states experimented with federal funding of legal aid. However, starting in 1980 the federal government’s priorities started to shift away from civil justice.
Beginning in the early part of the twenty-first century, almost 300 years ago, it began to dawn on state supreme courts and leaders of the organized bar in each state that if the poor and vulnerable citizens in their state were going to find justice in their court system they, and they alone, had to figure out a way to provide it.
As we look back at that period, it must have been exciting to have been a participant in what we now recognize as the birth of the truly just society we have today.
To give you a sense of how unjust it was in those days, I recently uncovered a report from that part of New York City formerly known as New Jersey. In the fiscal year ending in 2006 there were 165,943 tenant evictions. In 99% of those evictions the tenant was unrepresented. A supreme court justice from Maine studied his court system and discovered that 93% of the tenants in maine facing eviction in court did not have a lawyer. I know you find it almost unimaginable that the richest most powerful nation on the planet would treat its citizens in that fashion.
During the first few years of the twenty-first century in state after state the leadership of the bench and bar came together, rolled up their sleeves, and transformed the legal services delivery system in their state into a system that actually did fulfill the promise of “justice for all.” Not every state came up with the same solutions, but from our perspective 300 years hence we can now discern certain common approaches:
1. In virtually every state the private bar redoubled their charitable giving and their pro bono service and, working with the court, they maximized the interest flowing from their trust accounts into civil justice;
2. With that as a start the supreme court and the organized bar persuaded the state legislature to finally make “equal justice” a priority;
3. Most states recognized, through legislation or judicial interpretion of their constitution or their common law, that all citizens of their state unable to afford a lawyer were entitled to one, as a matter of right, at public expense in those categories of adversarial proceedings where basic human needs were at stake. The scope and breadth of that right varied from state to state but essentially included cases involving shelter, sustenance, safety, health, and child custody;
4. Where lawyers were not provided, the unauthorized practice of law rules were relaxed to permit lay advocates to assist the poor in court. Technology was employed to permit one lawyer sitting in her office to monitor and advise up to 100 lay advocates simultaneously;
5. And finally in most states common law judges were trained to become more like their civil law counterparts and to take a more active role in developing the facts before deciding the case.”
I hope you have enjoyed this brief trip into the future to see how history may judge your efforts today and tomorrow. If, on the other hand, you did not enjoy it, remember we are in Roswell and it’s only science fiction.
