The Litigation Section was created on August 7, 1973, after the ABA Young Lawyers Division played a key role in the ABA House of Delegates advocating for the creation of a section focused on trial lawyers. This publication and its Opening Statement column followed in relatively short order. The first Opening Statement, by William Emerson Wright, was set against the stage of “‘l’affaire Watergate,’ where the landscape of political scandal was peopled everywhere with lawyers.” 1 Litigation, no. 1, page 1 (Winter 1975). Chair Wright urged his readers to focus on the way the system worked in that time of national crisis: “What seems so terribly important is that the entire process was—and is being—confined, developed, controlled and brought to some sort of resolution within the tradition of the adversary system, made to work (or not work) at each step by trial lawyers plying their craft.”
Fifty years later, those words still ring true as it remains pressing to preserve the “tradition of the adversary system” as the means of resolving conflict. Indeed, it is an apt time to reflect at this anniversary on how the Section has served this tradition and to call us to action moving forward.
Creative initiatives, countless volunteer hours, and careful thought have contributed to the Section’s role in training, upholding, and advocating for a functioning adversary system. For example, the Section took seriously Supreme Court Chief Justice Warren Burger’s challenge in 1974 “that perhaps only half of us are competent at our trade.” A failure on the part of lawyers to “ply our craft” skillfully and ethically risks lack of trust in the system and its rules. It always has been my experience that litigating against a smart, ethical advocate is preferred to litigating against a sloppy one. Our clients and the system are better served by knowledge and respect of the rules and law. Importantly, public faith in the system also is strengthened by observing skilled lawyers work within the system. It is no surprise, therefore, that advocacy training has been a hallmark of the Section’s work, along with improving the Model Rules of Professional Conduct and the Federal Rules of Civil Procedure and Federal Rules of Evidence. As new rules of significance were announced, the Section took the lead in bringing those rules to local communities of lawyers whose practices would be affected and whose understanding and skilled implementation of those rules would be part of plying their craft.
Reflecting our belief that our legal adversary system could be used to forge change peacefully, the Section even participated in international training, including training Black lawyers in South Africa in 1987 as they fought against apartheid, in 2007–2008 in Darfur, and in 2011 in Haiti. Back at home, training lawyers through trial skills demonstrations, participatory workshops, and our annual Legal Services Advocacy Training for pro bono attorneys has remained some of the Section’s best work. We are better as lawyers when we are exposed to the best our profession has to offer as it inspires us to do our best work. The adversary system is better when our best work is on display, strengthening the perception of the profession to those who are affected by the legal outcomes.
Focusing on the fundamental integrity of the system, the Section repeatedly has advocated for increases in federal judicial pay and against movements to eliminate the jury system. When the professionalism of lawyers came under attack nationally, the Section’s Council met with then Vice President Dan Quayle in 1991 to discuss limiting the federalization of traditional state law areas; implementing meaningful discovery reform; updating Rule 11; and promoting competency, skill, and civility in the profession. Contributing to the public’s respect for the legal system has taken many forms, including developing recommendations about discovery proportionality adopted as part of the 1980 amendments to the Federal Rules and working with Congress on proposed legislation relating to tort and securities reform in the 1990s.
The Section has recognized that respect for the system requires ensuring that it is a system accessible to all. Many Section members have contributed financial and volunteer resources to pro bono efforts, including today’s Children’s Rights Litigation Committee and various committees and task forces that have served pro bono clients. When the Legal Services Corporation faced potential elimination, the Section advocated in Congress to maintain its role in providing civil legal assistance to low-income Americans.
Equally important to the Section has been its commitment to developing lawyers who reflect the populations they represent. The Judicial Intern Opportunity Program (JIOP) is one shining example of building a more inclusive profession by training law students from backgrounds traditionally underrepresented in the profession. Belief in the adversary system is strengthened when the advocates and decision-makers reflect the diversity of our American population. It is hard to believe in a system’s power to work when those making the decisions do not look like the population the system exists to serve. JIOP contributes in a meaningful way toward that goal and has now produced over 3,000 advocates more reflective of the communities in which they practice, some of whom have become judges themselves.
More recently, the Section absorbed the former ABA Standing Committee on the American Judicial System with the three-part mission of protecting judicial independence and the rule of law, preserving fair and impartial courts, and responding to unjust criticism of the judiciary and media. These goals fold neatly within the Section’s historical purpose, mission, and initiatives.
Why reflect upon this history? The challenge before us now—as it was 50 years ago—is whether we, as lawyers, can do what is needed, as Wright said, to ensure the “trial lawyers ke[ep] the matter within our system.” The role of trial lawyers may be even more important today in a world where information and misinformation spread without regard to experience or expertise. Such can sow distrust of a system that has served us well. It may fall on trial lawyers not only to work within the system but also to remind our neighbors that we cannot take our adversary system for granted.
Critically, certain aspects of the system must remain inviolate. Threatened violence against participants cannot be countenanced for many reasons, not the least of which is that our system depends on voluntary participation by citizens in roles as varied as juror, bailiff, judge, and advocate. If trial lawyers tolerate resorting to threats or extralegal means, how can we expect the system to survive?
The system is, of course, only a legal construct. We must come together with the resolve that started the Section 50 years ago to be sure not only that we ply our craft in a way that keeps the system strong but also that we lead the way nationally to keep the adversary system as the manner in which conflict is resolved.
