Remarks of Chief Justice Herbert P. Wilkins to Students at New England School of Law on March 27, 1997

Honorable Chief Justice Herbert P. Wilkins ^(*)

I. Introduction

I want to talk to you today about two general areas of change: change in the profession and change in some areas of substantive law.

Before I do that, however, I shall give you some advice on the problems of being a Chief Justice, so that when you become Chief Justice you will have some advance warning. For example, people tend to tell me what they think I would like to hear and not what the problem is. I appreciate the few people who are willing to say, "look, it is not going too well here," or "you need a little help there." Of course, I am responsible for everything--at least when it goes wrong. When something turns out right, the people who believe that they had a hand in it will be right up front telling everybody that they are the ones who did it.

The chief justiceship is a peculiar position because I really do not have any direct authority. There is no constitutional authority attributable to the Chief Justice; I share it with my six colleagues. There is no statutory authority in my job authorizing me to direct the running of the courts of the Commonwealth. The trial courts are under an independent Chief Justice, who, I might say, has a very difficult job. We try to coordinate, but we have a lot of court divisions and many people have their own ideas.

I have been Chief Justice for almost six months. There has been a great deal of cooperation. The system works pretty well in spite of what I have said about it. We have a very good Bar in the Commonwealth of Massachusetts and a very good Judiciary. The important point for me is whether we have a Legislature, which I grant you is fully supportive at the moment, that will finance programs that the Judiciary really needs. I am optimistic, but it is a tough problem when competing with various other financial needs.

I want to talk about changes that I have seen in the law and in the courts and add a bit about where we may be going, as best as I can predict, in the next twenty years. If you see as much change in the law and in the practice of law as I have in my eighteen years as a practicing lawyer and twenty-four years as a judge, you will see major changes--some that you cannot even guess at. When I started off (even on the court, much less practicing law), we had none of the communication materials that you rather easily use and rely on. We had minimum technology. We did not have any satellites. We did not have computers for research. We did not have word processors. The court had recently purchased a duplicating machine, which was very helpful because I was told that the junior Justice used to get the eighth carbon copy of a draft opinion. I am not even sure that some of you know what carbon paper is. Even if the opinion was very crisply written, by the time one got the eighth carbon copy of it, it would have to be pretty vague stuff.

II. Change in the Profession

One major point about change in the profession, that is surprising but seems unending, is the number of people who each year take the bar examination in the Commonwealth. In the last ten years, and probably longer, we have averaged each year more than 2,000 people taking the examination and being admitted to the bar. I often wonder what they all do. I suppose some of you do too, for that matter. One can take the view, and I think it is right, that legal training is, all by itself, an asset. The capacity for versatility in dealing with a problem and to take learning from one experience and apply it to a new one is a facility acquired as a law student and retained as a lawyer.

I will mention one negative change and two positive changes that I have noticed over the years. There is less courtesy at the bar today among counsel. There is a temptation to insult the other lawyer rather than solely to deal with the legal problem. There is a temptation to be uncooperative, to give the other side a hard time. What that is all about, I am not sure. It is an aggressive style. Some people may do it to please clients. I have some problem understanding that, but maybe there are clients who like it. Usually, it delays the disposition of the matter. When I see it as a judge, I find it discouraging. We are seeing more and more of that kind of ad hominem attack in briefs: insulting the intellectual capacity of the author of the opposing brief rather than asserting the weakness of the brief's argument. I first saw it in briefs coming from out-of-state counsel, with a local lawyer perhaps putting a name on it. I thought it was the culture in New York or Washington or from wherever it came. More recently, I have had some difficulty with that position because I am seeing it in briefs that are clearly of local origin. I hope we can do something about this. It may be the product of what I mentioned earlier--there are so many lawyers now that one does not plan to be collegial because the lawyer does not expect to deal with the same person again.

Bar associations are becoming more concerned about this problem and are working hard at turning this attitude around. We can do something about it in the courts, but not as easily if a matter does not get into court. If there is a lack of cooperation in court proceedings, we can impose sanctions. Indeed, we have been asked to adopt rules to toughen up deposition procedures where, if a lawyer wants to mess up the other person's deposition, he or she just tells the witness not to answer. The person on the other side has to go see a judge to get an order. That does not really help the cause or the cost of litigation.

Let us now talk about some positive items. The quality of the lawyering that I have seen before the Supreme Judicial Court has improved greatly in the past twenty-four years. It is most noticeable on the criminal side, partly because it was so bad when I first got there. When I first went on the court, I would often see how ineffective the defense lawyer had been at trial. Having lost the case, he or she would often disappear and not even consider handling the appeal. It is very difficult for a lay person to deal with the preparing of an appeal, and, if one is in prison, it is even harder.

We needed a more effective way of representing criminal defendants who were indigent. About fifteen years ago, the Legislature created the Committee for Public Counsel Services.⁽¹⁾ At public expense, the Committee is providing criminal defense work for indigent defendants in a very effective way. It became so good that it put pressure on the prosecution to do better. Each of them in turn has upgraded its performance. I am talking principally here about the heavy cases, but improvement has generally occurred also in the disposition of minor offenses. The Committee has established performance standards for defense lawyers. There are also some very able private counsel involved in criminal defense work. The people of the Commonwealth, at their expense entirely on the prosecution side and largely on the defense side, are now making possible appellate work as good in criminal appeals as we see in civil appeals. This has been a remarkable change.

The other positive change concerns professional ethics. By coincidence, in 1972, the year I went on the Supreme Judicial Court, we adopted the American Bar Association Code of Professional Responsibility, with some modifications.⁽²⁾ In 1974, we created the Board of Bar Overseers⁽³⁾ to supervise the discipline of lawyers and also created the Clients Security Board,⁽⁴⁾ which administers the process for reimbursing people whose former lawyers had taken their funds. That reimbursement is paid totally from funds contributed by Massachusetts lawyers in their annual dues, and indeed the entire Board of Bar Overseers is operated with funds generated solely from lawyers. We have a very good system dealing with lawyer discipline. Public funds are involved only when the serious cases come before the Supreme Judicial Court for the determination of the level of discipline to be imposed.

We have improved the discipline process from what we used to have. In the old days, it was done county by county. In some counties, people would say, "But for the grace of God, there go I. Don't to it again." That was a problem because, not only was there a lack of uniformity, but also, in many cases, serious discipline matters were ignored. The reputation of the Bar was, I am afraid appropriately, lowered in the minds of a lot of people. Under our present system, we are doing much better. I am not sure, however, we are tough enough. I suspect those of you who have taken courses in professional responsibility would be surprised at the modest level of discipline that is imposed for a lot of acts that are rather serious wrongs. This is my view, and I have been the heavy on the court in recent years on the level of discipline that should be imposed. I think, however, I have a relatively new colleague who is going to make me look like a middleweight. In any event, we are doing much better in the area of bar discipline.

For your information, and I am not even sure this is out yet, professional responsibility will be on the Massachusetts Bar examination after January 1 of next year. This will be in addition to the multi-state professional responsibility examination which, I am told, is a breeze. One reason that it is a breeze is that the multiple-choice answer must be correct under both the Code of Professional Conduct, which we have in Massachusetts, and the American Bar Association model rules.

For reasons that I have never been able to explain, my court has been unwilling to move to the model rules as rapidly as I think it should, but we are headed that way. Effective probably January 1, 1998, our Massachusetts modifications of the American Bar Association Model Rules of Professional Conduct will become effective. We will then have what I regard as considerably more helpful rules, although there are some parts of the ABA model rules that we are not entirely happy with. The court's special committee on the new rules felt considerable tension, as it worked through the model rules, between preserving uniformity (so that people in one State going to another State would have the same rule apply) and changing or rejecting rules that are not particularly good. We tried to hit a happy medium, but I am certain not everybody will be totally content.

III. Substantive Law Changes

Let us now talk about changes in the substantive law. We on the court do not really make them. What happens is that society changes. New problems come along that generate new issues in litigation and that often call for change in the substantive law.

A. Family Law

In the last ten or fifteen years, family law has become prominent. Twenty-four years ago, if we had what I call a family law case in my court, it happened no more than one case in perhaps fifty. The problems of the neglect of children have greatly increased, as have society's focus on them. The legal rights of children have become much more prominent. The criminal law, moreover, has intruded, for better or worse, in a forceful way into the treatment of certain serious wrongs committed by children.

Certainly, attention to the problem of domestic abuse has increased greatly. I am not sure whether it is because domestic abuse has increased in fact or whether it is because victims are more willing to come forward. I suspect that it is a bit of the latter, but that it is more of the former because of the breakdown of the family. On the other hand, I suspect years ago there were many spouses, all or almost all women, who suffered through rather unpleasant circumstances because it just was not socially correct to go down to the local court with a domestic abuse complaint. And, if the wife did go to court, when she got there, she did not necessarily get the relief she should have received.

We have a recently expanded Juvenile Court in this State which is having growing pains. Its creation is reflective of the increase in family problems. I predict that we are going to continue to see more and more cases in this area.

There is tension in divorce cases, for lawyer and client. Although the grounds for divorce have been pretty well eliminated as an area for dispute, there are still serious problems with the distribution of assets, custody of children, and alimony. Here, I wish we would do better in defining guiding standards that would be sufficiently narrow so that lawyers would not spend a lot of time, and would not get fees for, arguing over alimony, custody, and the distribution of assets. If so, everyone would know the range within which a judge is going to make the decision and would be able to settle the cases quickly.

One special circumstance in the family law area, although it comes up in other areas, is the increase in pro se representation. From judges' points of view, it is a very difficult problem. We even see it in my court. Someone comes before us who does not know what he or she is doing, but feels seriously aggrieved, perhaps with good cause. Often that person presents us with an insufficient record. There are some people who have money, but do not like lawyers (or perhaps just do not like lawyers' fees) and, therefore, they try to represent themselves. There are many, of course, who cannot afford a lawyer. It is hard on a judge to have a lawyer on one side when the other side is representing him or herself, in a domestic relations matter particularly. If the judge appears to be trying to help the pro se litigant, it creates the impression of lack of fairness and a sense of unhappiness on the side that is represented. I hear from the Probate and Family Court judges that this is a serious and increasing problem. I am not sure of the solution. I hope a partial solution will come from the work of a pro bono committee that my court has appointed recently to study the way in which we can effectively attract lawyers for no compensation to take several cases for indigents each year, lawyers who really know something about the subject, and thus help dispose of cases and reduce problems presented by the pro se litigant.

B. Torts

Now, a bit about torts. The cases we get today are not the kind of cases we generally got twenty or twenty-five years ago, simple tort cases of intersection accidents, slip-and-fall claims, and the like. Almost all those cases get settled. If they do not and are tried and appealed, they usually end up in our Appeals Court, our intermediate appellate court. Today, there are broader problems, such as mass torts; asbestos is an example. Even an airplane crash is probably a simple mass tort compared to the problems caused by some defective product distributed throughout the entire country. These cases are hard to handle. We are going to see more of them because experts are becoming better able to identify the causes of accidents and of physical harm. In product liability, an interesting question, as we become increasingly international, will be the extent to which we will continue to impose high standards on our manufacturers when their competitors overseas need not meet the same strict standards and, most particularly, do not have their liability measured in damages at the same level that we do.

In a lot of these complicated tort cases, the means of identifying the cause of the harm resulting from an event is now available. Experts not only can say how an accident happened but are able to say how the pollution that hit the ground here ended up over there, causing harm to someone. These are going to be increasingly difficult cases.

I predict that there are certain kinds of tort claims that will leave the tort system in the next twenty-five or thirty years. For example, I think a very strong case can be made that we ought to have something like workmen's compensation for injuries caused in automobile accidents. It is not equitable to luck out and be hit by a rich person when your next door neighbor in the same kind of accident, with the same injuries, was hit by someone who did not have any assets or significant insurance. We ought to be using something that levels off the consequences so, although nobody recovers a great deal, everybody gets something.

I do not know how this compensation-based recovery system might go, but, if we do what I am describing, we will eliminate liability as an issue, to some degree we will eliminate damages as an issue, thereby reducing the lawyers' involvement. Not only will we reduce the fee for the plaintiff's lawyer, but we will also eliminate the big fees that are paid to defense lawyers. If we do, there will be more money available for the person who was injured.

As to medical malpractice, we ought to consider carefully whether the institution where the negligent act occurred should be the one held liable because it can police its own people and throw out the bad apples. Indeed, in the medical area, the figures seem to show that a lot of people do not sue, although they have been hurt and probably have a good claim.

C. Criminal Law

Lots of things are going to happen in criminal law. The appearance of DNA has been an impressive factor in dealing with serious crimes. An interesting aspect of what is not quite accurately called "DNA fingerprinting" is that not only is there the prospect of showing that the suspect has the same DNA as that of a DNA sample found at the crime scene, but the tests may show that the suspect does not. It is a two-way street.

The drug problem is not going to go away soon. I am troubled with all the time spent by lawyers and judges dealing with search and seizure problems. In most drug cases, the prosecutor has the defendant dead to rights, if the evidence is admissible. Therefore, lawyers and judges focus their effort, not on whether the person is guilty, but on whether the evidence should be suppressed. I think we need an exclusionary rule, because I have not been able to think of an alternative. We can debate about where the line gets drawn on given cases. The fact is, unfortunately, that there is no other effective way to regulate police conduct.

In the criminal law area we have to do some rethinking about sentencing. It is very popular these days apparently to lock people up and put the key away for a long period of time. In the drug area, many people whom we pick up are really more ill than they are criminal, or they have been used by higher ups as minor participants, but are subject to big sentences. The Chief Justice of the Superior Court recently gave an example of a youngster who was offered $1,000 to transport drugs, perhaps a kilo of cocaine, and the youngster was caught. By sentencing mandate the young man is going to serve a long sentence in prison with no prospect of release in the interim. The person who was the principal proprietor often gets away.

Something else troubles me. We are getting more criminal appeals. In the monthly list of between twenty-five and thirty appeals, we used to hear five or six criminal cases. One month last year more than fifty percent of the appeals heard in my court were criminal cases. We have to take all the first degree murder appeals in my court. We have seven first degree murder cases, out of a total of twenty-five cases, on the April, 1997, list. Not all first degree murder appeals have red-hot issues in them. The fact we must take them is the product of the former existence of the death penalty. Attention to the development of the civil law is impeded by the growth of criminal appeals.

D. The State Constitution

When I joined the court in 1972, the State Constitution was a matter of minimal interest. Some States have paralleled our efforts in recent years and have looked carefully at their own State Constitutions to see what should be done. It is a limited opportunity because a State court must only deal in areas that the Supreme Court has left open. We have had a number of cases under the State Constitution that have produced different answers than have been given under the Federal Constitution. We have permitted people to solicit signatures in a shopping center for ballot access.⁽⁵⁾ The Supreme Court has said otherwise. If you have taken criminal procedure, you probably know that we have a different standard for the issuance of certain search warrants than that of the Supreme Court.⁽⁶⁾ We have had two such cases recently in which the answer under the State Constitution differs from the answer given under the Constitution of the United States. In the Amirault case, the provision in the Massachusetts Constitution concerning the right to confront witnesses face-to-face led us to repeat that the State Constitution imposes a higher standard than does the Federal Constitution on the right to confront witnesses.⁽⁷⁾ Then there is an opinion I wrote recently in which we said that, under the State Constitution (as is not true under United States Constitution), the requirement of two-parent consent to authorize a minor to obtain an abortion was unconstitutional, even if the minor had the option of obtaining judicially authorized approval of an abortion.⁽⁸⁾

Our Constitution is older than the Federal Constitution. Much of the Federal Bill of Rights is derived from concepts appearing in our Declaration of Rights. We need not move lock-step with Washington on every point. I think of the Supreme Court as describing a common base from which we can go up. We often agree with them. We are not trying to be contrary. We are, however, entitled to our own views, indeed constitutionally required to have them. There will likely be more to come in this area.

IV. Conclusion

On an overall assessment, comparing the present to twenty-five years ago, we have an abler bar, operating at a much higher ethical level, but less congenially than in the past. The bar today is dealing with increasingly more complicated subjects. In spite of all the problems I have described of size, attitude, and, I add, the increased commercialization of the practice of law, it is a great profession in which people can do a lot of good in making society work and in helping the unfortunate.

* A.B., LL.B. Harvard University; Chief Justice of the Massachusetts Supreme Judicial Court.

1. See MASS. GEN. LAWS ch. 211D (1997) (originally enacted by St. 1983, ch. 673, § 1).

2. See MASS. CODE OF PROFESSIONAL RESPONSIBILITY 3:07 (1972).

3. See MASS. RULES OF THE SUPREME JUDICIAL COURT, Rule 4:01 (1974).

4. See id. at Rule 4:04.

5. See Batchelder v. Allied Stores Int'l, 445 N.E.2d 590, 595 (Mass. 1983).

6. See Commonwealth v. Upton, 458 N.E.2d 717, 721-24 (Mass. 1985).

7. See Commonwealth v. Amirault, 677 N.E.2d 652, 660-62 (Mass. 1997).

8. See Planned Parenthood League v. Attorney Gen., 677 N.E.2d 100, 107 (Mass. 1997).