By Michael Dorf
In a post last week, I noted how the end-of-year report by Chief Justice Roberts characterized what were largely minor wording changes in the Federal Rules of Civil Procedure as authorizing federal district judges to play a more aggressive role in supervising--and importantly, in limiting--discovery in civil cases. Here I want to focus on the tone of the Chief's report and what it says about his conception of the legal profession.
In the report, the Chief is, as always, a powerful polemicist, especially because he seems so reasonable that it is easy to miss just how polemical he is being. If Justice Scalia is the Donald Trump of the Court's right wing (always in your face), Chief Justice Roberts is its Ben Carson (lulling you to sleep).
The Chief begins his report by condemning dueling. Why? It appears that dueling is used to show the importance of an effective system of civil justice so that people do not resort to violence to resolve their grievances. But this cannot possibly be the Chief Justice's real point. Whatever the problems of abusive discovery--the Chief's target--there is no risk that substantial numbers of people who would litigate in federal court if the procedures were just right will, instead, resort to anything like dueling because of suboptimal procedural rules. Moreover, as CJ Roberts notes, before dueling died out, it was a means of avenging petty insults of the sort that would not have given rise to legal causes of action at all. Dueling was part of an honor culture apart from the legal system, not a crude form of alternative dispute resolution.
Hence, the Chief's apparent purpose in invoking dueling is as a simile for abusive discovery and abusive resistance to discovery. Lawyers engaged in petty squabbles--requesting mountains of data or burying relevant information responsive to discovery requests in mountains of irrelevant documents--are like those proud-but-foolish men of the past, fighting for the sake of fighting. The Chief's report is a plea for cooperation among counsel for adverse parties.
Who could be against cooperation? Certainly not this blog. After all, regular contributor Professor Colb is a certified mediator who, even when she was training, extolled the virtues of cooperative resolution of differences. Nonetheless, the Chief's conception of cooperation is problematic.
Mediation as a cooperative search for a mutually acceptable resolution of differences is a process that involves the parties themselves. Yet the Chief is calling for cooperation between attorneys for represented parties who, one can see from the fact that they ended up in court in litigation, were unable to reach a mutually acceptable resolution. To be sure, the Chief would no doubt say that even within the adversary system, lawyers oughtn't to go to war over everything, and he would be right. The difficulty, however, is that in pushing for rules that limit discovery, the Chief pushes for rules that don't simply limit abusive discovery but that also limit potentially necessary discovery. And given the asymmetry between plaintiffs and defendants, that will typically favor defendants.
Meanwhile, there is something nostalgic about the Chief's plea for a more cooperative, more civilized federal bar. In important respects, it calls to mind a book published two decades ago that was similarly nostalgic.
In his 1993 book The Lost Lawyer, Anthony Kronman--who was then about to become the Dean of Yale Law School--argued for the reinvigoration of a "lost" ideal of the legal profession. Instead of pursuing their clients' interests at all costs and, equally importantly, instead of seeking to maximize the amount of money they can extract from their practice, Kronman argued that lawyers should occupy the role of statesmen. Kronman conceived the chief virtue of lawyers as their ability to feel the force of opposing arguments. A good lawyer stands somewhat apart from his client. Yet that noble conception of the lawyer as impartial advisor had faded, Kronman lamented.
Seen from one perspective, Kronman's book was an intervention in a debate about professional ethics. As against the view that a lawyer ought to be simply a hired gun who zealously advocates for his client of the moment, Kronman was emphasizing the notion that a lawyer remains an "officer of the court" with duties to justice as well as his client. Although they disagree among themselves on a great many particulars, writers in legal ethics like Charles Fried, David Luban, my former colleague Bill Simon, and my current colleague Brad Wendel have all made arguments in this vein.
Yet Kronman's book went beyond what these other scholars have said about the limitations of zealous advocacy. The Lost Lawyer was nostalgic in a way that Kronman himself recognized as uncomfortable. The earlier period of legal practice that was "lost"--the one that Kronman sought to retrieve--was steeped in discrimination. Women, Jews, Catholics, African Americans, uncloseted sexual minorities, and even low-born straight male WASPs were often excluded from the upper (and often the middle) echelons of legal practice. Arguably, what allowed lawyers in the "good" old days to look past the narrow interests of their clients and serve the system as a whole was a tight and exclusionary social network: Having gone to the same elite schools and meeting for drinks after work at the same clubs, the lawyers had at least as much in common with one another as they had with their clients.
Kronman was aware of this criticism and took pains to argue that he did not wish to revive the bygone era of exclusion. Readers will have to judge for themselves whether CJ Roberts is equally concerned about making the legal profession welcoming to people from all walks of life. Certainly there are no indications that he is in any way bigoted in his personal or professional relations, but one could be forgiven for drawing the conclusion from his opinions in cases involving race that he thinks that America's racial problems are behind us, as he denominates efforts to address our racial divisions to be the more serious problem.
Meanwhile, Kronman did not really have an answer to his own principal complaint--that conditions in large law firms serving corporate clients have made it virtually impossible to practice as a lawyer-statesman. He focused on two developments: the growth of large firms and the increasing focus by clients on the bottom line that made firms competitive with one another. Seeing these trends as irreversible, Kronman advised young lawyers to avoid large-firm practice altogether and instead go to work at "a general-practice law firm in a small town or city outside the country's metropolitan centers"--advice that no doubt contradicted the career plans of nearly all of the students who passed through Yale during his ensuing deanship.
By contrast, CJ Roberts--who was a happy, successful big-firm lawyer between his time as a government lawyer and his time on the bench--seems to have absorbed the lessons of a very different book published only two years after Kronman's Lost Lawyer: Judge Richard Posner's Overcoming Law. Celebrating the very developments that Kronman lamented, Posner complained that traditional legal practice operated much like a medieval guild--for the benefit of the guild members rather than its customers. Posner acknowledged that life for competitors in a competitive market is not very pleasant but, still in the market-uber-alles phase of his career, he thought that it would be best for the economy overall if lawyers' interests were more closely aligned with those of their clients.
Without acknowledging any of this, CJ Roberts seems to agree. The text of his year-end report tells lawyers that it is demeaning for them to fight over discovery, but the sub-text is "stop wasting your clients' money."
That's not bad advice, of course, but it's noteworthy that it is advice that, more than anything, serves the interests of the corporate clients of large law firms. Individual plaintiffs' attorneys are typically paid contingent fees, so they have no incentive to run their own clocks. Attorneys for corporate defendants (and usually for corporate plaintiffs too) are paid by the hour, and thus it is the corporations' money that will be wasted, not the plaintiffs'.
I do not want to say that the Chief's plea for litigation restraint and civility are simply a mask for protecting corporate America. Restraint and civility are genuine virtues--and abusive discovery and abusive resistance to discovery are genuine problems. Still, it is difficult to read the Chief's year-end report against the background of the last 25 years of changes in the legal profession and his own extremely pro-business record without sensing that his deeper commitment is to the corporate clients of large law firms.