I'm going to talk today about history, on the theory that those who do not understand it are condemned to repeat it. This is not a novel idea. I say every year that those who do not understand civil procedure are condemned to repeat it.
In celebration of Monroe Freedman, I'm glad that this conference is called "Access to Justice." You know, Monroe's favorite phrase about lawyers is "The duty of the advocate is to represent the client with warm zeal." When I look around at what's happening to public defenders and legal services, I wonder what's happened to the warm zeal. I think the warm zeals are being clubbed to death. They're out on the ice to make coats for rich people, and that's why we have to save the zeals. That's my pitch today.
I'm not going to pretend that what I say is objective. William James said that a great many people think they are thinking when they are merely rearranging their prejudices. For the next few minutes, I am going to rearrange my prejudices, and talk about the legal system. I have received support for my view from what some might regard as unexpected quarters. After Walter Smith was appointed as a Republican United States District Judge in Waco, at his very first judicial conference he came upon the Chief Judge, Lucius Bunton, whom many of you know at least by reputation. Judge Bunton was sitting at breakfast in the Hyatt Hotel in Austin, and he called out, "Walter! Come over here! What the hell is the matter with you? I understand that you just took five days to try a half a day case!" And Judge Smith replied calmly, "Well, Lucius, if it's the one I'm thinking of, the Fifth Circuit sent it back after you tried it the first time. I think the other four and a half days is what they call due process."
Tigar, Michael E.
"Rationing Justice - What Thomas More Would Say,"
Journal of the Institute for the Study of Legal Ethics: Vol. 2
, Article 18.
Available at: http://scholarlycommons.law.hofstra.edu/jisle/vol2/iss1/18