Michael S. Greco
President, American Bar Association
Whither the Litigator?
Remarks at the CPR Institute Annual Meeting
New York, New York
January 19, 2006
I thank the CPR Institute for inviting me to participate in this 30th Anniversary
commemoration of the Pound Conference or, as it is known by its bulkier title, The
1976 National Conference on the Causes of Popular Dissatisfaction with the
Administration of Justice.
The American Bar Association, the Conference of Chief Justices, and the
Judicial Conference of the United States joined together in organizing the 1976 Pound
Conference under the leadership of Chief Justice Warren E. Burger, whose tireless
pursuit of improvements to our justice system left an enduring legacy that continues to
guide us 30 years later.
I commend the International Institute for Conflict Prevention and Resolution for
convening this commemoration of the Pound Conference and for carrying on the
important efforts to improve the ways in which we resolve disputes and enhance the
public s confidence in our legal system.
It is an honor to share this stage with my distinguished fellow speakers, Thomas
Burt, Professor Frank Sander, and Robert J. Grey, Jr. Professor Sander was a pivotal
figure in the 1976 Pound Conference and he remains on the cutting edge of research
on, and theories of, alternative dispute resolution.
I, like you, also very much look forward to hearing Justice Sandra Day
O Connor s keynote address during today s luncheon. Justice O Connor will leave a
legacy of unwavering commitment to justice for all that must shape our approach to the
law and legal process for years to come. She has given generously of her time and
expertise to support and advance a number of ABA programs and priorities, including
our Central European and Eurasian Rule of Law Initiative (CEELI) and currently as
Honorary Chair of the ABA Commission on Civic Education and the Separation of
Powers that I appointed six months ago.
All lawyers, indeed all Americans, owe Justice O Connor great thanks for the
remarkable talents and energy that she has brought to the pursuit of justice throughout
her distinguished career. Please join me in acknowledging Justice O Connor.
The title of my remarks, Whither the Litigator? , might give the misleading
impression that I, or the American Bar Association, see the archetypal litigator as a
vanishing breed.
I am not here to deliver that message.
Like many lawyers and judges throughout the United States, I am concerned
about the future of traditional litigation, for reasons that I will share with you in a
moment, but I do not believe that litigation should or will go the way of the dinosaur
anytime soon. The robust debate over the current state and future of what we
characterize as the trial highlights the difficulty of evaluating precisely where we are
and where we are heading in the world of litigation and alternative dispute resolution.
I usually try not to step in between law professors engaged in rhetorical battle,
but I will make an exception in this instance, in order to put my remarks in context.
Professor Marc Galanter of the University of Wisconsin Law School, who has
written extensively on The Vanishing Trial and has worked with the ABA Section of
Litigation, presents compelling data to show that civil trial rates have fallen dramatically
over the past 40 years, while the number of lawyers and cases filed during the same
time period have increased.
On the other hand, Professor John Lande of the University of Missouri-Columbia
School of Law, a member of the Council of the ABA Section of Dispute Resolution,
argues in an article in the CPR Institute s publication, Alternatives, that The Vanishing
Trial is a myth that does not take into account the shift to pre-trial work that has
characterized the past 40 years and which does not necessarily belong outside an
expanding but logical definition of litigation.
I mention this debate because I think it serves as a good example of the many
ambiguities and the wide latitude for interpretation in assessing phenomena in the realm
of law.
As President of the ABA I represent and speak for the interests of the entire
spectrum of the legal profession, including litigators and ADR proponents.
It is important to note that the ABA Section of Litigation remains a powerful force
in the profession, with a strong membership base and a diverse array of programs,
publications and services for litigators in our country and abroad.
The ABA Section of Dispute Resolution is also very healthy, and it continues to
grow and expand its reach, as does the CPR Institute and other organizations working
to promote the effective use of ADR.
I recognize that there are some tensions between litigation and ADR, and
between their strongest proponents, but I see more complements and opportunities for
blended approaches to dispute resolution than irreconcilable conflicts or differences
between the two.
While my own practice over the past 34 years has focused largely on business
litigation, during the past decade or so I have done a great deal of mediation and
arbitration work, both as counsel and as mediator or arbitrator. I respect, and enjoy
being in, the courtroom, and participating in the search for truth and justice that is the
hallmark of adversarial proceedings. I honed my trial and mediation/arbitration skills in
many court rooms as a young lawyer. And I have great confidence in the ability of the
primary actors in the trial setting judges, lawyers and jurors alike to separate chaff
from wheat to arrive at the essential facts and applicable law, and do justice, in a
dispute.
But I also recognize the tremendous value of alternative dispute resolution
processes in achieving efficiencies in our justice system, and of more mutuallybeneficial outcomes for clients than are sometimes possible through the use of
traditional litigation.
My experience is probably not too different from that of many other lawyers in
America who think of themselves first and foremost as trial lawyers whether on the
defense or plaintiff side. Lawyers of my generation did not learn as much about
mediation or arbitration in law school or as young practitioners as have succeeding
generations of lawyers, but many of us have embraced ADR as it has become a truly
viable and proven alternative to litigation. Trial lawyers have learned, sometimes to
their surprise, that many of the skills learned in the courtroom are important in
mediation, arbitration, and settlement negotiations.
I have concern, however, that trial advocacy skills may wither, if succeeding
generations of law students and lawyers do not see their value in a legal landscape that
they perceive to be dominated by transactional law and negotiated settlements -- If they
do not hone their skills in traditional court room trials.
The skills of cross-examination, of meticulously marshalling and mastering the
evidentiary details, of the skilled presentation of the important evidence, of persuasive
oral advocacy based on a command of the facts and law, are important not just to
clients in a private dispute, but to addressing legal disputes outside the hearing room, in
countless venues in our communities and in society.
Even if a substantial proportion of lawyers rarely or never pursue cases all the
way to trial, the trial skills that students acquire in law school and that young lawyers
learn from experienced litigators help make them better advocates and counselors,
and problem solvers in society. Preparation for and anticipation of a trial, even if the
odds are remote that a trial will occur, can provide one of the strongest motivations for
lawyers to be zealous and thoroughly competent advocates for their clients, and for
societal causes.
If the trial lawyer s skill set is diminished, or marginalized, who will litigate those
cases in the future that are best resolved at trial? And who will zealously and
competently advocate for the public on societal issues that trial lawyers have addressed
since the beginning of our country? While it is certainly not necessary for every law
student to prepare for a career as a litigator, it would be a great disservice to the
profession, and to the American people, if litigation skills were to be disproportionately
de-emphasized in the education and training of lawyers.
I know that some of you are thinking that the trial skills that I am talking about
can be developed just as effectively in ADR proceedings. Having served as arbitrator
and mediator in scores of cases huge and small during the past decade, observing
numerous lawyers present their cases, I can tell you that the most effective arbitration
and mediation counsel I have observed have been those who developed their skills as
trial lawyers.
In these remarks I also want to underscore the value of public proceedings when
a public interest is at stake. We know that one of the great attractions of ADR to
disputants is the opportunity for them to keep confidential the resolution of their dispute.
In cases where substantial harm has been done to a significant number of
people, or where the public s health and safety are implicated by harm to one person,
the confidentiality of ADR processes may not advance the public s interest in ensuring
that those responsible for the harm are held accountable, and dissuaded from future
harmful acts, and the public s right to know what is going on in the marketplace of
business people and consumers and their behavior.
In a number of specific areas, the ABA has worked for many decades to
promote policies that ensure fairness in ADR processes while preserving the rights of
litigants to pursue resolution of disputes through the courts.
Since 1971, the American Bar Association has adopted nearly 40 policy
statements and recommendations relating to alternative dispute resolution, and those
are summarized in the course book for this conference. ABA policies on ADR include a
far-reaching resolution calling for the expansion of court-annexed ADR programs,
adopted in 1997, which enabled the ABA to work with the United States Judicial
Conference, the Department of Justice, and Congress to promote the enactment of the
Alternative Dispute Resolution Act of 1998.
The ABA has also taken an active role in promoting ADR at the international
level, through programs such as the effective and highly acclaimed Mediation in Mexico
project of our Latin America Law Rule of Law Initiative, to name just one example.
American and international lawyers working on the international stage have
understood for some time the great value of ADR in resolving disputes within and
across national borders. The fast-evolving global economy requires that we seek out
more ways to communicate and work more effectively with lawyers and clients around
the world to resolve cross-border disputes efficiently and effectively, and ADR holds
great promise to address this imperative.
My conclusion, perhaps not surprising to you, is that there must be a place in
our society for both litigation and ADR; that we need, and must ensure the continuation
of both highly skilled trial lawyers and ADR counsel.
Thank you for your kind attention, and I look forward to engaging in discussion
with you.