24 September 2009

 

Thank you. It is an honor to address the bar at its annual meeting.

The relationship between the bench and the bar in Missouri is of the greatest importance. This time we have together is precious, so I will get right to the point.

There are two distinct challenges that we need to address. These challenges confront both the bench and the bar. The first challenge, hopefully of short term, arises from our country’s financial troubles. The second, unfortunately of longer term, concerns the broad political landscape that surrounds us.   

Challenges are nothing new. The intensity of these challenges, however, is unmatched. It will take all of our collective skill and wisdom to overcome these challenges. And, we must do so in a manner that enhances the public’s trust and confidence in our system of justice.

It is obvious that Missouri is not immune from the financial collapse that has plagued our nation. Our businesses and our law firms have been affected as has our state government. I have been out of the practice of law a long time, but I speak to my old friends and I read the newspapers. Traditional areas of business have dried up. Other areas of work have become more risky and less profitable. Partners and associates have been terminated. New associates have had their starting dates postponed. Law firms have merged and law firms have split, mostly for economic reasons.

I remember well the pressures of profit per partner and recovery ratios. But we all must remember that the practice of law has a heart and a soul. It is not just a business. It is the pursuit of justice, and that is what separates us and calls us apart from mere occupations.

The economic downturn has had a drastic affect on Missouri state government. Revenue for 2009 fell by 6.9 percent, the worst decline in a generation. As of today, revenues still are falling.

The courts cannot escape this reality any more than anyone else. As usual, Missouri falls within the mid-range of states affected by the financial crisis. While very few states are unscathed, some are faring better, many are faring worse. It is particularly important to note that, across the nation, almost all states are attempting to shield their court systems from the full impact of the revenue shortfall – all recognizing the vital role the judiciary plays in our society.

During fiscal 2009 we released back to the state nearly $3 million of monies appropriated to us. Our present budget anticipates that we will release back to the state another $3 million. Although these cuts are unprecedented, we must bear our portion of the shortfall. There is no use in complaining.

Many of our counties also are suffering. They are cutting court budgets, from the other end. Their cuts are just as deep. The next year, or two, will be difficult and will require aggressive management decisions that we would otherwise not want to make.     

The good news is that we come to these hard times from a position of strength. Over the years, we have managed our resources and our efforts well. There are no significant backlogs of cases in Missouri. We have a first-class judicial education program and a statewide automation system. We have a juvenile justice program and a drug court program that are nationally recognized. We do not need to build new systems from scratch, but we do need to preserve as much as possible to avoid building them from scratch again.

The extent of the cuts that we are making will affect lawyers and judges, urban and rural areas, alike. It has been our goal in making these cuts to focus on meeting the legal needs of the citizens we serve as efficiently as possible with the resources available to us. We ask for your assistance and understanding as we work through these problems for the next few years.  

Life for the Missouri legal system is just as complicated on the political side of the fence. Again, nothing new, but we are facing increased intensity from a number of fronts.

I will not talk about the various proposals to change the Missouri merit selection plan. Nor should any inference be drawn from what I say today regarding any of those proposals. But we must talk about the general political landscape and why it threatens our legal system.

The overwhelming and common danger of the great depression and World War II pulled us together as a people. We focused, by necessity, on the common good. We were willing to make individual sacrifices and compromises for the good of all. Since then, for many reasons, our society has fractionalized. Groups and interests now identify themselves more with what separates than with what unites.

Each group develops a funding source, and within each group a spokesperson or executive director steps forward to maintain the intensity of the group’s particular message. Generally, these are good people with the best of intentions. But often they see no farther than their own interests. They are willing to sacrifice all other considerations, even when inevitable damage to the whole will occur.

Necessarily, these groups and interests become involved in the legal system. What they cannot obtain through the political process, they seek to obtain through the courts. What they obtain through the political process, they defend in the courts. It is not the facts or the law that they want to determine the litigation. They demand that the courts rule on the basis of their particular ideological views. For them, justice is determined by whether their special cause wins, regardless.

Our notions of justice are simply out of place and at risk in such a world.  We have been taught to honor a fair and impartial judiciary that carefully decides cases on their own facts and in accordance with the law. For us, a good judge is a judge who can set aside his or her personal philosophy and is fair to each side, regardless of the controversy. A good judge is a judge who makes his or her decisions based on an objective determination of the facts in accordance with time-honored principles of law.

But this is exactly what the interest groups do not want. Instead, they want a judicial system in which judges are “dependable” … where judges can be counted on to decide cases on an ideological basis, without regard to facts or law … where judges’ rulings can be predicted before any litigant enters the courtroom, before any evidence is introduced. Dedicated to their ideals, these groups forget that if courts favor any one litigant above the facts and the law, they necessarily must cheat the other.

Let me be clear: I do not think the majority of Missourians participate in or favor this factionalism. But those who do are vocal and committed and know no limits to the extent that they will fight or spend money to get their way. Unfortunately, they fail to see that they may destroy the legal system in the process.

Despite our many battles, this is the war that we cannot lose. The rule of law, not special interest, is what we must preserve. More than ten years ago The Missouri Bar came up with the phrase Justice First. I used that phrase as the theme of my first speech to the bar, and I use it again now. Our focus and our intensity must be on justice first and justice for all. We must fight for it just as hard as the special interest groups fight for their agendas. We must do so, both individually and as members of The Missouri Bar, at a level we have never dreamed of in the past.

Don’t fool yourselves. In the real world of Missouri politics, we are just surviving, we have not prevailed. Even in good times, our judges are underpaid; our budgets are underfunded, legal reform efforts too often are simply veiled attempts to gain advantage for one side or the other in the litigation process. This is in the face of almost all public opinion polls that show a greater degree of respect for the judicial branch of government than any other branch of government. This is in spite of the help of many elected officeholders who are just as shocked at the new complexion of the political world as we are.  

The reason we are losing ground is simple and obvious. We have been coming to the fight a day late and a dollar short. To be sure, former judges, bar leaders and civic leaders testify in committee hearings and say all of the right things at our annual meetings. This is not enough. For better or for worse, the political issues of today are shaped by aggressive public relations experts, financed by well-funded PACs.  If we continue to live in denial of the real world around us, the rule of law will erode into nothing more than a memory of a branch of government that wasn’t bought and sold by the political powerbrokers of the moment.

Albert Einstein questioned those who did the same thing over and over again and expected different results. Individually and as members of the organized bar, we need to do better. We need to get smart. We need to get organized. We need to get intense. We must use the same sophisticated techniques of shaping public opinion as those who want to capture us for their particular cause.

Not just for this year, not just for next year, but for the foreseeable future, we need to focus the attention of the people of Missouri on the fact that, when they need a lawyer or when they must appear before a judge, the courtroom should not already be tilted against them by some special interest, no matter how rich, no matter how powerful. We need to focus the attention of the people of Missouri on the fact that whatever others may be fighting for, we fight for justice first and justice for all.