Litigation takes too long, juries should be eliminated in all but important cases, and the cost of taking a case to court is far too high for most Americans, even those with good cases.
These were some of the insights famed trial attorney F. Lee Bailey offered the 300 accountants, estate planning attorneys, and insurance and financial service professionals who attended the Rhode Island Society of Financial Service Professionals meeting at the Rhode Island Convention Center in Providence May 11.
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Bailey, a Waltham, Mass. native whose legal career has been marked by such high-profile clients as Patricia Hearst and O.J. Simpson, said the United States suffers from its inability to expedite the litigation process, driving up costs for the parties involved.
“The country is very badly beset with its inability to crawl over the morass of its own litigation,” Bailey said. “We have not speeded up the process of litigation, indeed.”
Arbitration should replace litigation in many civil cases, Bailey argued. He added that the United States should follow the lead of countries such as England, which do not allow jury trials except in criminal cases, libel cases, and cases in which a judge deems to be “extraordinary.”
“Things move much more swiftly when you don’t have the encumbrances of a jury trial,” he said.
Bailey made these statements in the context of a larger argument: that the legal profession, and the U.S. system of justice, must distance itself from outdated practices, old ways of thinking, and obsolete technologies.
For example, he criticized judges and lawyers who are still using DOS to run their computers, while praising alert and ambitious lawyers who are eager to take advantage of new technology.
He likewise questioned the system’s reliance on precedent, the ‘let the decision stand’ tradition, calling it “backward glance” and saying its role should slowly diminish.
Bailey buttressed his arguments by likening his business to the medical profession, saying that, just as researchers must strive to discover the newest and best treatments, the legal community is obliged to modernize itself for the sake of justice and service to its clients.
Such reforms are needed to make the cost of bringing a case affordable to more people, Bailey said.
But some area experts found fault with Bailey’s contentions. Litigation processes have sped up dramatically in federal courts in recent years, while alternative dispute remedies are available in Rhode Island Superior Court, which cuts the number of cases that come to trial, said John A. Tarantino, a lawyer for the Providence firm of Adler Pollock & Sheehan.
“If anything I would say the process has become much more efficient, much more streamlined,” Tarantino said, after Bailey’s remarks were described to him by phone. “What he’s describing has not been my experience.”
Bailey’s notion that jury trials should be prevented in all but important cases also met with opposition from Tarantino, who said it is important that the community get involved with the judicial process.
And various checks in the system protect against bad juries, he said. A judge may take a verdict away or order a new trial. Decisions may also be overturned on appeal.
“Obviously, there are travesties; there are bad, bad decisions made by juries,” Tarantino said. But he added that that is not a reason to abolish them. “I would not agree that you simply do away with jury trials; we want more than simply a judge sometimes to decide a case.”
Mark S. Mandell, a Providence lawyer who is also president of the Association of Trial Lawyers of America, dismissed Bailey’s argument that England is evidence that the scaled-back jury trial system works. Aside from voting, juries are the only way for average citizens to participate in their democracy, he said. Eliminating that right would diminish the people’s stake in the process, he indicated.
“I certainly disagree that there’s a class of cases in which people are entitled to less justice,” Mandell said, noting that the seventh amendment to the U.S. Constitution guarantees a right to a jury trial. “I think it would be a tragic mistake to eliminate juries.”
Indeed, arbitration and other alternative dispute methods work best when both sides want to use them, said Anthony F. De Marco, a lawyer for the Providence firm of Boyer Reynolds & De Marco, who is involved with both litigation and arbitration.
“I have a lot of confidence in alternative dispute resolution, (but) I’m also a great believer in jury trials,” De Marco said.
De Marco and others noted that some cases are so complex that they need more time to handle properly. And any such case is going to be expensive. They also noted that procedural changes in courts have sped things up in recent years. And De Marco said delays between the filing of an argument and the opening of trials are sometimes good because the parties use the time to reach an agreement beforehand.
“When you have a very fast calendar between filings and trial, you have no settlements, I think statistics will bear that out,” he said. “(Delays) are not counterproductive all the time.”
John M. Harpootian, a Providence lawyer who handles estate planning and who was present to hear Bailey’s remarks, said would liked to have heard Bailey cite his experience from the O.J. Simpson trial to make a point: that quality representation is worth the money.
Harpootian said Bailey made some good points about the paralysis in the judicial system, but he added that: “I’m not (sure) F. Lee is the right person to be making those kinds of (complaints); he’s a lawyer for hire, he’s part of the paralysis.”
Though most of the people who attended the society’s meeting appear in court only rarely, organizers believed Bailey was the type of speaker who could appeal to the various financial interests and professions the society represents. Past speakers at society meetings have included Boston Celtics President and Coach Rick Pitino.
“The idea was to get someone who will tie us together,” said G. David Parent, past president of the society. “This room was full.”
