Speeches by Chesterfield - Vol. XV, 202-210. 1978-1979

VOLUME XV

SPEECH NUMBER TITLE OR GROUP ADDRESSED

#202 "WHAT IS A LAWYER? WHAT
IS HIS FUTURE?"
BEFORE WAKE FOREST UNIVERSITY
LAWYER ALUMNI
Winston Salem, North Carolina
Friday, October 13, 1978

#203 REMARKS BY CHESTERFIELD SMITH
BEFORE WAKE FOREST LAW SCHOOL
ALUMNI, FACULTY, STUDENTS
WAKE FOREST UNIVERSITY
Winston Salem, North Carolina
Saturday, October 14, 1978

#204 REMARKS BY CHESTERFIELD SMITH
BEFORE CONFERENCE ON INVEST-
MENTS IN BRAZIL SPONSORED BY
EXCHANGE NATIONAL BANK OF
TAMPA AND HOLLAND & KNIGHT
Tuesday, October 24, 1978

#205 "WHAT IS AN ADVOCATE?" WHAT
IS HIS COLORATION?"
BEFORE INTERNATIONAL ACADEMY
OF TRIAL LAWYERS
Tampa Regional Meeting
Saturday, October 28, 1978

#206 REMARKS. OF CHESTERFIELD SMITH
BEFORE MID-WINTER MEETING OF
YOUNG LAWYER'S SECTION OF
AMERICAN BAR ASSOCIATION
"IMPERIAL JUDICIARY OR
IS IT A DEFAULTING EXECUTIVE
OR LEGISLATURE?"
Hyatt Regency Hotel
Atlanta, Georgia
Saturday, February 10, 1979

VOLUME XV

SPEECH NUMBER TITLE OR GROUP ADDRESSED

#207 "CREDIBILITY IN THE LEGAL
PROFESSION"
BEFORE 1979 P.R.S.A. SOUTHEAST
DISTRICT CONFERENCE "SEMINAR IN
THE SUN"
Holiday Inn Airport
Tampa, Florida

#208 IMPERIAL JUDICIARY OR IS IT A
DEFAULTING EXECUTIVE OR LEGISLATURE?"
BEFORE THE LAKELAND KIWANIS CLUB
RAMADA INN
LAKELAND, FLORIDA
FRIDAY, MAY 4, 1979

#209 Notes for Remarks
Before Polk County Historical Assn.
Bartow Civic Center
Thursday, June 21, 1979
"1968 Florida Constitution
Revision Commission"

#210 Notes for Remarks
Before Florida Women's Network
(Athena Society, Inc.)
Saturday, June 23, 1979
The Tower Club, Tampa, Florida

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 202

VOLUME XV

ADDRESS OF:

CHESTERFIELD SMITH
LAWYER
TAMPA, FLORIDA

BEFORE:

WAKE FOREST UNIVERSITY
LAWYER ALUMNI
WINSTON SALEM, NORTH CAROLINA

DATE:

FRIDAY, OCTOBER 13, 1978

TITLE:

"WHAT IS A LAWYER? WHAT IS
HIS FUTURE?"

TWENTY-FIVE MINUTES

'**:'. ':. "v

i

::

TIME:

QUITE OBVIOUSLY DURING THE LAST SEVERAL YEARS IT HAS BEEN

MY PRIVILEGE TO MEET QUITE OFTEN WITH LAWYERS FROM EVERYWHERE.

THUS FINALLY I CONCLUDED TO CONSOLIDATE THE IMPRESSIONS WHICH

I HAVE FORMULATED IN THAT PERIOD TO DEFINE --WHAT IS A LAWYER? --

WHAT IS HIS FUTURE?

ADMITTEDLY ONE LAWYER'S THOUGHTS ABOUT HIS PROFESSIONAL

COUNTERPARTS WILL NOT BE FULLY ACCEPTABLE TO MANY OF THE GOOD

LAWYERS WHO ARE PRESENT,

NEVERTHELESS AS A TRIAL LAWYER-

I FEAR NOT SO I SHALL CHARGE AHEAD WITH KNOWLEDGE THAT I SHALL

BE QUICKLY CORRECTED IF I DO ADVANCE SERIOUS MISCONCEPTIONS, I

SHALL WITH CONFIDENCE THEN (1) FATHOM THE UNFATHOMABLE (2) EXPLAIN

THE INEXPLICABLE (3) DISPUTE THE INDISPUTABLE (4) FORGET THE

UNFORGETTABLE AND (5) UNSC-REEIN THE INSCRUTABLE,

THE LAWYER HISTORICALLY HAS BEEN MALIGNED AND ABUSED.

ANY DEFENSE ON MY PART IS OBVIOUSLY SELF-SERVING-BUT I AM CONVINCED

THAT MOST OF THAT CRITICISM IS NOT WELL-FOUNDED.

POSITION WAS EXPRESSED BY THAT DISTINGUISHED LAWYER, HARRISON

TWEED WHEN HE SAID:

"I HAVE A HIGH OPINION OF LAWYERS, WITH

ALL THEIR FAULTS .... THEY ARE BETTER TO WORK WITH OR PLAY WITH -

OR FIGHT WITH OR DRINK WITH THAN ANY OTHER VARIETY OF MANKIND."

HIGHLIGHTS OF THAT AGE-OLD ABUSE BY THOSE WHO DELIGHT IN

JUMPING LAWYERS ARE:

IN UTOPIA THOMAS MORE SPECIFICALLY PROVIDED THAT THERE

WOULD BE NO LAWYERS.

GEORGE WASHINGTON'S WILL PROVIDED THAT

DISPUTES ARISING THEREUNDER WOULD BE RESOLVED BY THREE ARBITRATORS

"WHO WOULD NOT HEAR LAWYERS."

RHODE ISLAND WHILE A COLONY -

PROHIBITED LAWYERS FROM SERVING IN THIS LEGISLATURE,

THE

CONSTITUTION OF THE ILLINOIS GRANGE OF 1872 PROVIDED THAT ANYONE

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MY OWN

COULD BE A MEMBER IN THE ILLINOIS GRANGE EXCEPT ACTORS -

GAMBLERS AND LAWYERS.

PROBABLY THE BEST PUBLICIZED CRITICISM OF OUR PROFESSION

IS FOUND IN CARL SANDBURG'S POEM WHEREIN HE SAID:

"--WHEN THE LAWYERS ARE THROUGH
WHAT IS THERE LEFT, BOB?
CAN A MOUSE NIBBLE AT IT
AND FIND ENOUGH TO FASTEN A TOOTH IN?

"WHY IS THERE ALWAYS A SECRET SINGING
WHEN A LAWYER CASHES IN?

"WHY DOES A HEARSE HORSE SNICKER
HAULING A LAWYER AWAY?

"THE WORK OF A BRICKLAYER GOES TO THE BLUE.
THE KNACK OF A MASON OUTLASTS A MOON.
THE HANDS OF A PLASTER HOLD A ROOM
TOGETHER,
THE LAND OF A FARMER WISHES HIM BACK AGAIN.
SINGERS OF SONGS AND DREAMERS OF PLAYS
BUILD A HOUSE NO WIND BLOWS OVER.
THE LAWYERS TELL ME WHY A HEARSE HORSE
SNICKERS HAULING A LAWYER'S BONES."

-3-

HOW MUCH OF THE CRITICISM IS JUSTIFIED?

PERSON COULD DENY THAT ON OCCASION CERTAIN INDIVIDUAL LAWYERS

FAIL TO MEASURE UP TO RECOGNIZED PROFESSIONAL STANDARDS, IF

THIS WERE NOT THE FACT THE ORGANIZED BAR WOULD NOT SPEND MANY

HUNDRED OF THOUSANDS OF DOLLARS AND MILLIONS OF LAWYER HOURS EACH YEAR

IN DISCIPLINARY PROGRAMS.

IN FACT HOWEVER DISCIPLINARY

PROBLEMS ARE OCCASIONED BY A VERY SMALL PERCENTAGE OF THE TOTAL

LAWYER POPULATION.

BUT WHEN REACTING TO CURRENT CRITICISM LAWYERS SEVERALLY

AND COLLECTIVELY MUST REMEMBER THAT IT WAS CHIEF JUSTICE WARREN

BURGER WHO LATELY SAID THAT ALMOST 50 PERCENT OF THE UNITED STATES

TRIAL BAR MAY NOT BE ABLE TO TRY A CASE COMPETENTLY.

FOR

HYPERBOLIC EFFECT THE CHIEF JUSTICE ON AN EARLIER OCCASION HAD

-4-

NO CANDID

USED THE METAPHOR OF A "SWARM OF LOCUSTS" TO CHARACTERIZE THE

PROLIFERATION OF LAWYERS -LAW AND LITIGATION,

ALSO CONCERNED

WITH OVER-LAWYERING PRESIDENT JIMMY CARTER RECENTLY CALLED

UPON THE PROFESSION "TO MAKE THE ADVERSARY SYSTEM LESS NECESSARY

FOR THE DAILY LIVES OF MOST AMERICANS -- AND MORE EFFICIENT WHEN

IT MUST BE USED."

THE PRESIDENT ADDED MORE POINTEDLY: "BY

RESORTING TO LITIGATION AT THE DROP OF A HAT BY REGARDING THE

ADVERSARY SYSTEM AS AN END IN ITSELF WE HAVE MADE JUSTICE MORE

CUMBERSOME MORE EXPENSIVE AND LESS EQUAL THAN IT OUGHT TO BE."

THE CRITICISM TO WHICH I HAVE REFERRED BOTH ANCIENT AND

MODERN INDEED ANY SPECIFIC CRITICISM ABOUT ALL LAWYERS IS NOT

NECESSARILY CORRECT.

CERTAINLY MUCH OF IT IS NOT; JUST AS

MUCH CRITICISM OF POLITICIANS AND BUREAUCRATS IS NOT CORRECT.

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BUT

WE MUST LISTEN TO OUR CRITICS AND RESPOND SYMPATHETICALLY AND

CONSTRUCTIVELY TO THEIR CRITICISM AFTER WE HAVE REFLECTED UPON

IT. ILL-CONCEIVED EFFORTS TO DENY OR DEFLECT CRITICISM OFTEN

SUCCEED ONLY IN SUBSTANTIATING IT AND IN ERECTING BARRIERS TO

NEEDED ACCOMMODATIONS.

WHEN WE LOOK AT THE MORE REPRESENTATIVE SIDE OF THE LEGAL

PROFESSION IT IS AN INDISPUTABLE FACT THAT NO PROFESSION

APPROACHES IN NUMBERS OR PERCENTAGE THE PARTICIPATION BY LAWYERS

IN COMMUNITY AND GOVERNMENTAL AFFAIRS.

OUR STATE GOVERNMENTS ARE HIGHLY POPULATED.WITH LAWYERS,

OVER ONE-HALF OF THE GOVERNORS WHO HAVE SERVED IN THE LAST 100

YEARS IN THE VARIOUS STATES HAVE BEEN LAWYERS,

PROBABLY TO A GREATER EXTENT OUR FEDERAL GOVERNMENT IS

MANNED BY LAWYERS IN THE HIGHEST OFFICES AVAILABLE TO OUR CITIZENS,

TWENTY-FIVE OUT OF THE THIRTY-NINE PRESIDENTS OF THE UNITED STATES

HAVE BEEN LAWYERS,

SIXTY PERCENT OF THE UNITED STATES SENATE

AND CONGRESS ARE REGULARLY MADE UP OF LAWYERS,

IT IS CRYSTAL

CLEAR THAT THE LEGAL PROFESSION NEED NOT APOLOGIZE TO ANYONE

WHEN IT COMES TO PUBLIC SERVICE,

IN ADDITION TO THE PUBLIC SERVICE ASPECTS THERE IS

NOT ANOTHER PROFESSION WHERE THE FINEST OF ITS MEMBERS SPEND AS

MUCH TIME EDUCATING THEIR COMPETITION.

I HAVE NOTED THAT IN

NORTH CAROLINA AS IN OTHER STATES THE MOST PRODUCTIVE LAWYERS

ARE CONTINUALLY CALLED UPON TO WRITE AND TO LECTURE IN CLE PROGRAMS,

THOSE LAWYERS SPEND VALUABLE HOURS THAT OTHERWISE WOULD BE CHARGEABLE

TO CLIENTS FOR THE BENEFIT OF OTHER LAWYERS WHO SEEK TO ENLARGE AND

-7-

IMPROVE THEIR OWN LEGAL ABILITIES,

WHEN WE EXAMINE INTO THAT IMPROVEMENT OF LEGAL ABILITY -

WE MUST ASK -- THE ABILITY TO DO WHAT?

WHAT DOES A LAWYER DO?

TWO NOTED MEMBERS OF THE PROFESSION HAVE COMMENTED:

ELIHU ROOT SAID ABOUT ONE-HALF OF THE PRACTICE OF A

DECENT LAWYER CONSISTS OF TELLING WOULD-BE CLIENTS THAT THEY ARE

DAMN FOOLS AND SHOULD STOP,

MR. JUSTICE LOUIS BRANDEIS BEING SOMEWHAT MORE

JUDICIOUS AND TEMPERATE IN HIS COMMENT SAID THE SAME THING -

AS FOLLOWS: "A LAWYER IS A COUNSELLOR AND ADVISER,

HE ISN'T

JUST A HIRED MAN TO DO THE BIDDING OF HIS CLIENTS BUT HE MUST

EXERT THE INDEPENDENCE OF HIS MIND AND UNDERSTANDING UPON THE

CONDUCT OF HIS CLIENT'S BUSINESS."

-8-

MARTIN MAYER A NON-LAWYER WROTE AN INTERESTING BOOK

OF FAIRLY RECENT PUBLICATION ENTITLED "THE LAWYERS."

HE BROKE

A LAWYER'S ACTIVITIES INTO FOUR CATEGORIES: (1) FIGHTING THE

TRIAL CONTESTING ADVERSARY PROCEEDINGS; (2) NEGOTIATING;

(3) SECURING THE WILL LEASE TRUST AGREEMENT BUY AND SELL

AGREEMENT; AND (4) COUNSELLING,

IT IS RATHER DIFFICULT TO

IMPROVE UPON THIS CATEGORIZATION,

THE COMPETENCE WITH WHICH THE LAWYER PERFORMS THESE

ACTIVITIES IS THE MEASURE OF HIS PROFESSIONAL ABILITY,

BUT PROFESSIONAL EXCELLENCE ALONE IS NOT ENOUGH FOR

THOSE LAWYERS WHO POSSESS THE GOALS TO WHICH ALL LAWYERS SHOULD

ASPIRE,

INVOLVEMENT IN BAR ACTIVITIES IMPROVEMENT IN THE

STRUCTURE OF THE LEGAL PROFESSION ENHANCEMENT OF JUDICIAL

ADMINISTRATION AND MODERNIZATION OF THE LAWS THAT GOVERN OUR STATE

AND COUNTRY ARE EQUALLY IMPORTANT.

ABOVE ALL LAWYERS MUST

TAKE ALL POSSIBLE MEANS TO ESTABLISH A RECOGNITION IN OUR CITIZENS

THAT THE RULE OF LAW IS NOT SYNONOMOUS WITH THE STATUS QUO. A

COMMITMENT BY CITIZENS TO OBEY LAW AND RESPECT ORDER WILL COME ONLY

WHEN OUR CITIZENS ARE CONVINCED THAT RESPONSIBLE OFFICERS ARE DOING

THEIR UTMOST TO REMOVE INEQUITIES AND INADEQUACIES IN THE LAW,

LAWYERS MUST DEVELOP AN UNRESTRICTED WILLINGNESS TO BECOME INVOLVED

IN THESE ENDEAVORS,

THAT IS THE CONSEQUENCE OF OUR INDIVIDUAL

ACCEPTANCE OF THE PRIVILEGE WHICH HAS BEEN GRANTED TO US TO PRACTICE

OUR CHOSEN PROFESSION,

LAST MAY DAY PRESIDENT CARTER BEFORE THE LOS ANGELES

COUNTY BAR ASSOCIATION COMPLAINED:

-10-

,... LAWYERS OF GREAT INFLUENCE AND PRESTIGE
LED THE FIGHT AGAINST CIVIL RIGHTS AND ECONOMIC
JUSTICE, THEY WERE PAID LAVISH FEES BY
THEIR STATES AND HEAPED WITH HONORS FOR THEIR
EFFORTS, THEY KNEW ALL THE MANEUVERS -
AND FOR TOO LONG THEY KEPT THE PROMISES OF THE
CONSTITUTION OF THE UNITED STATES FROM COMING
TRUE,

THE EXAMPLE OF COURSE WAS ILL CHOSEN FOR THE

PRESIDENT'S PURPOSE.

IN TRUTH IT WAS NOT THE EXECUTIVE NOR

THE LEGISLATIVE BRANCH OF OUR GOVERNMENT WHICH BROKE SEGREGATION

BUT LAWYERS WORKING IN THE ADVERSARY SYSTEM.

BUT MUCH MORE

PRENICIOUS THAN THE ILL CHOSEN EXAMPLE IS THE UNDERLYING PREMISE

THAT THE LAWYER IS TO BE IDENTIFIED WITH THE CAUSE:

GUILT BY

REPRESENTATION,

NOT TOO LONG AGO IN THIS COUNTRY PERSONS DECRIED THE

USE OF THE PRINCIPLE OF "GUILT BY ASSOCIATION" TO PILLORY PEOPLE IN
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AT LEAST "GUILT BY ASSOCIATION" HAS SOME JUSTIFICATION

IN HOMELY COMMON SENSE AS EVIDENCED BY THE TIME HONORED RUBRIC

"BIRDS OF A FEATHER FLOCK TOGETHER".

"GUILT BY REPRESENTATION" HAS NO SUCH JUSTIFICATION. IF

THERE IS ONE THING FUNDAMENTAL TO OUR SYSTEM IT IS RECOGNITION OF

THE PRINCIPLE THAT NO MATTER HOW UNPOPULAR THE CAUSE IT IS STILL

ENTITLED TO FULL FAIR LEGAL REPRESENTATION,

TO HOLD OTHERWISE

MEANS THAT EACH LAWYER BEFORE ACCEPTING A CASE MUST ACT AS

PHILOSOPHER/KING TO JUDGE THE RECTITUDE OR THE POPULARITY OF THE

CAUSE.

ON A LESS LOFTY NOTE EACH LAWYER MIGHT FIND IT PRUDENT

TO ASK HIMSELF OR HERSELF "WILL SOME POLITICIAN YEARS FROM NOW

USE MY REPRESENTATION OF THIS CAUSE AGAINST ME?"

IT IS NOT HARD TO SEE WHAT A CHILLING EFFECT THAT WILL

-12-

THE PRESS,

HAVE ON THE ABILITY OF THE UNPOPULAR CAUSE TO OBTAIN THE FULL -

FAIR LEGAL REPRESENTATION TO WHICH IT IS ENTITLED.

WHEN ONE

CONSIDERS THAT YESTERDAY'S RADICALISM IS OFTEN TOMORROW'S ORTHO-

DOXY ONE CAN APPRECIATE JUST HOW INIMICAL TO PROGRESS IT IS TO

IDENTIFY THE LAWYER WITH THE CASE.

ON FIRST CONSIDERATION IT IS APPALLING THAT THE CHIEF

EXECUTIVE OF THIS COUNTRY WOULD NOT BE AWARE OF THIS.

BUT PERHAPS

IT -IS NOT SO SURPRISING IN VIEW OF THE FACT THAT EVEN IN THE

PROFESSION ITSELF THE SAME DOCTRINE IS ESPOUSED.

THERE ARE

ADVOCATES IN THIS COUNTRY WHO PROUDLY PROCLAIM THAT THEY WILL NEVER

REPRESENT A CAUSE WITH WHICH THEY DO NOT AGREE A SINGULARLY

ILLIBERAL POSITION,

WHY DO WE HAVE ADVOCATES?

WHAT DO THEY DO?

WHAT ARE ADVOCATES AND

THE DERIVATION OF THE WORD ADVOCATE IS FROM THE

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LATIN -- ONE WHO SPEAKS TO AN ISSUE,

IN LOGIC IN THE TECHNICAL RULES AND THE HISTORICAL PRECEDENTS,

AN ADVOCATE USES THOSE TOOLS TO LOOK OBJECTIVELY AT A SET OF FACTS

AND FAIRLY AND ETHICALLY TO ORGANIZE AND PRESENT THOSE FACTS IN A

MANNER WHICH WILL BEST REPRESENT A PARTICULAR POSITION,

IT IS

AN HONORABLE CALLING,

WHEN ADVOCATES ON EACH SIDE ACT THUS -

HISTORY HAS DEMONSTRATED THAT THE CHANCES ARE MAXIMIZED THAT ALL

THE PERTINENT CONSIDERATIONS WILL BE PRESENTED TO THE FACT FINDER.

PERHAPS BECAUSE OF A LACK OF UNDERSTANDING OF THE THEORY

OR OF FEAR THAT ONE ADVOCATE WOULD BE MORE CLEVER THAN THE OTHER

AND CAUSE THE "WRONG SIDE" TO WIN PEOPLE HAVE DISTRUSTED THE METHOD

AND THE SKILL INVOLVED.

BUT IN MANY IF NOT MOST INSTANCES -

THERE IS AN IMPORTANT ADVANTAGE FOR ONE WHO HAS A DISPUTE WITH A

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AN ADVOCATE IS TRAINED

FELLOW CITIZEN OR WITH THE GOVERNMENT IN NOT SPEAKING FOR ONESELF,

THE LAWYER PERFORMS A VITAL FUNCTION IN VIEWING A CAUSE WITHOUT

THE PASSION OR EMOTION GENERATED BY THE PARTY'S IDENTIFICATION

WITH THAT CAUSE,

THE LAWYER SHOULD STRIVE TO INSULATE THE

LITIGATION FROM THE PASSIONS OF THE PARTIES.

FOR EVERY DIS-

REPUTABLE PRACTITIONER WHO PANDERS TO THE EMOTIONS OF HIS CLIENT -

THERE ARE THOUSANDS OF ETHICAL LAWYERS WHO BRING ABOUT A REASONABLE

SOLUTION OF A DISPUTE.

THE ADVERSARY SYSTEM WARTS AND ALL HAS FUNCTIONED TO

BRING REFORMS BEYOND THE APPARENT CAPABILITIES OF THE EXECUTIVE OR

THE LEGISLATURE: SEGREGATION IS A CASE IN POINT,

NEITHER HISTORY NOR PRESIDENT JIMMY CARTER HAS FOUND A

BETTER ALTERNATIVE.

TO BORROW FROM ONE DEFINITION OF DEMOCRACY -

-15-

THE ADVERSARY SYSTEM IS THE WORST POSSIBLE METHOD OF RESOLVING

DISPUTES EXCEPT FOR ANY OTHER EVERY DEVISED.

IT WILL NOT

LONG REMAIN SO IF THE PRESIDENT'S "QUILT BY REPRESENTATION"

DOCTRINE IS NOT EXPOSED AS INIMICAL TO LIBERTY,

TO WIND UP THE SUBJECT OF LAWYERS PERMIT ME TO POINT

OUT MY BELIEF THAT THE PUBLIC OF NORTH CAROLINA AND THE PUBLIC OF

THE UNITED STATES HAS THE UNFETTERED RIGHT TO DEMAND THAT THOSE

LAWYERS WHO WERE GRANTED THE SEMI-MONOPOLY AS ADVOCATES TO SERVE AS

THE MAJOR BULWARK BETWEEN OUR CITIZENS AND THEIR GOVERNMENT BE OF

THE HIGHEST POSSIBLE PROFESSIONAL QUALITY AND WORTHY OF THAT UNIQUE

TRUST PLACED WHEN THE PROFESSION OF LAWYER WAS CREATED.

THE

PROFESSIONAL STATUS AS A LAWYER MUST BE A STAMP OF INTEGRITY AND A

SIGNAL TO THE PUBLIC THAT THOSE MEN AND WOMEN WHO PURSUE THIS CALLING

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ARE PERSONS WHO ADHERE TO THE HIGHER PRINCIPLES TO THE HIGHER

STANDARDS,

I LIKE LAWYERS VERY MUCH I HOPE THAT YOU DO,

LAWYERS

COLLECTIVELY ARE JUST GREAT AND WITH VERY RARE EXCEPTIONS LAWYERS

INDIVIDUALLY ARE JUST GREAT TOO,

LAWYER IS A BEAUTIFUL WORD WHEN THE PERSON TO

WHOM IT IS APPLIED ACTS IN A BEAUTIFUL MANNER,

I VERY MUCH WANT ALL AMERICANS TO KNOW THAT LAWYERS

ARE UNIQUE IN THEIR OBLIGATION AND DEDICATION TO PUBLIC SERVICE,

I VERY MUCH WANT ALL AMERICANS TO ACCEPT THAT THE WORD LAWYER

IS SYNONYMOUS WITH "HONORABLE",

(THE END)

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SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 203

VOLUME XV

ADDRESS OF:

CHESTERFIELD SMITH
LAWYER
HOLLAND & KNIGHT
TAMPA, FLORIDA

BEFORE:

WAKE FOREST LAW SCHOOL
ALUMNI, FACULTY, STUDENTS
WAKE FOREST UNIVERSITY
WINSTON-SALEM, NORTH CAROLINA

DATE:

SATURDAY, OCTOBER 14, 1978
10:30 A.M.

TWENTY MINUTES

TIME:

LAWYERS HAVE LONG CLAIMED THAT OURS IS AN OPEN

PROFESSION WITH NO ARTIFICIAL BARRIERS OR QUOTAS TO

ADMISSION,

UNLIKE OTHER PROFESSIONS THIS POSITION ON

ADMISSIONS HAS BEEN GENERALLY ACCEPTED -AND THERE HAS BEEN

NO CONTINUING CHARGE THAT LAWYERS HAVE FOR ECONOMIC SELF-

INTEREST MAINTAINED NUMERICAL QUOTAS BY LIMITING THE NUMBER

WHO HAVE BEEN ALLOWED ADMISSION TO PROFESSIONAL TRAINING. A!

A PROFESSION WE CONTINUE TO SUBSCRIBE TO THE PHILOSOPHY

UNDERLYING THIS OPEN-DOOR POLICY;

THAT IS THAT ANY QUALIFIED

PERSON SHOULD BE ABLE TO SERVE AS COUNSELOR AND ADVOCATE IN

ANY STATE REGARDLESS OF THE EXISTING LAWYER POPULATION,

CERTAINLY NO STATE BY QUOTA OR POPULATION RATIO RESTRICTS THE

NUMBER OF LAWYERS WITHIN ITS JURISDICTION AND THEORETICALLY -

THE LEGAL PROFESSION CAN GROW FOR GOOD OR ILL TO MEET THE

-1-

INTEREST DEMANDS AND NEEDS OF OUR CITIZENS IN ALL STATES.

UNTIL RECENT YEARS THE MOST FORMIDABLE OBSTACLE

IN THE PATH OF THE ASPIRING LAWYER WAS STATE CERTIFICATION

TESTS AND PROCEDURES OR AS IT IS FAMILIARLY KNOWN THE BAR

EXAM.

OF COURSE THESE PROCEDURES USUALLY INVOLVING

BOTH PROFICIENCY TESTING AND BACKGROUND INVESTIGATIONS STILL

REMAIN AS SIGNIFICANT BARRIERS TO ENTRY INTO THE PROFESSION,

BUT IT IS NO LONGER A TRUISM TO STATE THAT IN MOST CASES ANY

QUALIFIED AND FINANCIALLY ABLE PERSON CAN WITH STUDY AND WORK

SECURE BAR ADMITTANCE.

WHILE THEORETICALLY THE DOOR IS

STILL OPEN AT THE BAR ADMISSION LEVEL IT HAS FOR PRACTICAL

PURPOSES BEEN EFFECTIVELY SLAMMED SHUT TO MANY HERETOFORE

QUALIFIED BY THE REALITIES OF ADMISSION TO THE LAW SCHOOLS,

ALMOST ALL STATES NOW REQUIRE SUCCESSFUL COMPLETION

-2-

OF LAW SCHOOL STUDY USUALLY FROM A SCHOOL ACCREDITED BY THE

AMERICAN BAR ASSOCIATION BEFORE A PERSON MAY APPLY FOR BAR

ADMISSION.

SINCE THE POSSIBLE NUMBER OF NEW LAWYERS IS

LIMITED EACH YEAR TO THOSE ABLE TO SUCCESSFULLY COMPLETE THAT

LAW SCHOOL STUDY THE LEGAL PROFESSION BECAUSE OF SPACE

LIMITATIONS IN THE LAW SCHOOLS IS NOW TURNING AWAY THOUSANDS

OF PREVIOUSLY QUALIFIED APPLICANTS.

WHILE I COULD CATALOG

FOR YOU THE STAGGERING GROWTH IN LAW SCHOOL POPULATIONS OF THE

PAST FEW YEARS IT IS SUFFICE TO SAY THAT ,OUR LAW SCHOOLS

HAVE EXPERIENCED A PERIOD OF UNPRECEDENTED G-ROWTH; EVERY SEAT

IS FILLED.

THE DEMAND FOR ADMISSION TO LAW SCHOOL HAS

SIMPLY OUTSTRIPPED THE ABILITY OF THE LAW SCHOOLS TO ACCOMMODATE,

THE EXTRAORDINARY SURGE OF INTEREST MIRRORED IN

-3-

THE UNPRECEDENTED AVALANCHE OF LAW SCHOOL APPLICATIONS -

CERTAINLY HAS HAD MULTIPLE CAUSES.

ARE OBVIOUS,

SOME OF THESE CAUSES

LAW HAS BECOME MORE FINANCIALLY ATTRACTIVE -

PARTLY RESULTING FROM AN ACTUAL LAWYER SHORTAGE OF THE PAST

FEW DECADES,

THE LAW HAS BECOME IDEALISTICALLY ATTRACTIVE

AS THE CUTTING EDGE OF SOCIAL MOVEMENTS AND SOCIETAL CHANGE -

MANY LOOK TO THE LAW AS "WHERE THE ACTION IS" THE DROP IN

THE PH.D. MARKET THAT OCCURRED TOWARD THE END OF THE SIXTIES

ASLO CONTRIBUTED TO THE CURRENT POPULARITY OF THE LAW,

BUT

THERE ARE OTHER NOT SO OBVIOUS FACTORS PERHAPS FACTORS OF

WHICH WE ARE BOTH UNAWARE WHICH MAY CONTRIBUTE TO THOSE

CONDITIONS EVEN IN GREATER DEGREE THAN THOSE I HAVE MENTIONED.

HOPEFULLY THAT CONFLUENCE OF CIRCUMSTANCES WILL NOT CONTINUE

-4-

INDEFINITELY BUT IN THE MEANTIME THE REALITY IS THAT TODAY

LAW SCHOOL ADMISSION POLICIES RATHER THAN BAR EXAMINERS -

ARE IN LARGE MEASURE PICKING OUR FUTURE LAWYERS,

THAT BEING

SO IT SEEMS TO ME TO FOLLOW THAT THE LEGAL PROFESSION AS

AN ENTITY MUST DEVOTE SOME HARD THINKING TO LAW SCHOOL

ADMISSIONS POLICIES AND FURTHER TO WHAT THE LAW SCHOOLS

ARE DOING IN LEGAL EDUCATION TODAY.

AS A COUNTY-SEAT TRIAL

LAWYER I FIRMLY BELIEVE THAT ADMISSION TO LAW SCHOOL IS TOO

IMPORTANT TO BE LEFT TO THE ACADEMIC COMMUNITY ALONE IT MUST

CONCERN ALL OF US WHO ARE IN THE JUSTICE BUSINESS,

TODAY EVEN OUR NEWER LAW SCHOOLS ARE FACED WITH

THE HAPPY OR UNHAPPY TASK OF PICKING AND CHOOSING AMONG

A LARGE AND OUTSTANDING GROUP OF APPLICANTS.

ADMISSIONS

-5-

DECISIONS HAVE ALWAYS BEEN KNOTTY PROBLEMS FOR OUR LARGER -

MORE PRESTIGIOUS LAW SCHOOLS BUT TODAY ALL LAW SCHOOLS

ARE FACING AN ADMISSIONS CRISIS WHICH IS EQUAL OR IN EXCESS

OF THAT FACED BY ANY LAW SCHOOL TEN OR TWENTY YEARS AGO.

THE PRESSURES ON LAW SCHOOL ADMISSION BOARDS OFFICERS AND

COMMITTEES HAS INCREASED GEOMETRICALLY WITH THE INCREASE IN

APPLICANTS.

THE FACT THAT MOST OF EACH YEAR'S APPLICANTS

ARE SOPHISTICATED EDUCATED AND POSSESS RAW ABILITY FAR

SURPASSING THAT OF EVEN LAST YEAR'S CLASS IS SOBERING AND

TO MOST THOUGHTFUL LAWYERS FRIGHTENING,

IT HAS BECOME

COMMONPLACE FOR THE LAW SCHOOLS TO POINT TO THE ESCALATING

GRADE POINT AND LAW ADMISSION TEST AVERAGES OF EACH NEW

CLASS,

I AM ADVISED THAT THE MAJORITY OF LAW SCHOOLS HAVE

-6-

MET AND COPED WITH THE SURGE OF APPLICANTS BY MERELY RAISING

THE OBJECTIVE CRITERIA FOR ADMISSION.

YET ALL OF US KNOW

THAT THIS MAY NOT BE THE BEST OR EVEN A GOOD WAY TO CHOOSE

OUR FUTURE LAWYERS,

STRONG ARGUMENTS HAVE BEEN MADE THAT SUCH POLICIES

NEGLECT THE NEEDS OF THE PUBLIC AND THE PROFESSION AND

PROPERLY SO.

MANY FEAR A SO-CALLED ELITIST SYNDROME WHERE

THE LAW WILL BECOME ONLY A HAVEN FOR EGG-HEADS AND INTELLECTUALS,

.OTHERS POINT TO THE STRIKING INEQUITY TO LARGE SEGMENTS OF

OUR SOCIETY OF USING GRADE POINT AVERAGES AND ADMISSION TEST

SCORES AS THE SOLE-BASIS FOR ADMISSION,

MANY VIGOROUSLY

ASSERT THAT GRADE POINT AVERAGES SHOULD NO LONGER CARRY THE

WEIGHT THEY ONCE DID BECAUSE MANY IF NOT MOST UNDERGRADUATE

-7-

SCHOOLS HAVE SHIFTED FROM TRADITIONAL GRADE SYSTEMS FOR

MEASURING ABILITY AND ACHIEVEMENT,

SCHOOLS NOW OFFER

PASS FAIL COURSES ALLOW GRADE ERASURES AND IN MANY

INSTANCES CONDONE MASSIVE COURSE WITHDRAWAL.

TRANSCRIPTS

OFTEN ARE VIEWED BY BOTH APPLICANTS AND ADMISSIONS OFFICERS

AS SUBVERSIVE DOCUMENTS.

CERTAINLY THERE IS STRONG

REASON TO DOUBT THE RELIABILITY OF THE LAW SCHOOL ADMISSION

TEST AS A PREDICTOR OF FUTURE LAW SUCCESS AND I DO NOT BELIEVE

THAT ANY RESPONSIBLE AUTHORITY SUGGESTS TO THE CONTRARY. IT

JUST STRIKES AGAINST THE GRAIN OF REASON TO PREDICATE A LIFE'S

WORK ON PERFORMANCE ON A FIVE-HOUR EXAM.

WHILE WE ALL ADMIT THAT THE SO-CALLED "PREDICTORS"

ARE SOMETIMES DEFICIENT IN FORECASTING ACADEMIC SUCCESS -

-8-

I BELIEVE THAT WE ALL SUSPECT THAT THEY ARE EVEN LESS RELIABLE

IN PREDICTING SUCCESS IN ACTUAL LAW PRACTICE,

WE DO KNOW

THAT THEY FAIL TO TELL US ABOUT SUCH CRITICAL FACTORS AS

MOTIVATION MATURITY ENERGY CLIENT RELATIONS BUSINESS

SENSE AND THE LIKE.

BUT THERE ARE OTHER PROBLEMS WE NOW FACE IN

ADMISSIONS EVEN IF WE DID BECOME BETTER AT GAUGING POTENTIAL

SUCCESS AS ELUSIVE AS IT MIGHT BE THERE IS LEFT THE MORE

VEXING QUESTION OF OUR OBLIGATION TO RESPOND TO PERCEIVED

SOCIETAL NEEDS FOR LAWYERS WHO WILL REPRESENT MINORITIES -

WHO WILL PRACTICE IN RURAL AREAS WHO WILL SERVE THE POOR -

WHO WILL CHALLENGE THE PROBLEMS OF THOSE WHO NOW NEED LEGAL

SERVICES BUT WHO ARE UNABLE TO EMPLOY A LAWYER WHO WILL

-9-

THINK LESS ABOUT FINANCIAL REWARD AND MORE ABOUT THE NEEDS

OF BOTH SOCIETY AND THE LEGAL PROFESSION.

IT IS FOR THOSE REASONS THAT I.HAVE ASSERTED THAT

LAW SCHOOL ADMISSIONS MUST BECOME THE BUSINESS OF THE BAR

AS WELL AS THAT OF THE LAW SCHOOLS.

THE BAR OWES A DUTY

TO THE PUBLIC TO PROVIDE THE BEST LEGAL SERVICE POSSIBLE -

AND THE DISCHARGE OF THAT OBLIGATION IN LARGE MEASURE DEPENDS

UPON THE TYPE AND CALIBRE OF THE LAWYER AND NOW MORE THAN

EVER THE CALIBRE OF THE FUTURE LAWYER.

BAR ADMISSION SHOULD

HENCEFORTH BE VIEWED AS A CONTINUOUS PROCESS BEGINNING WITH

LAW SCHOOL ADMISSION,

BECAUSE REALISTICALLY THIS NOT

BAR EXAMS IS NOW THE METHOD WE UTILIZE TO SELECT FUTURE

MEMBERS OF THE LEGAL COMMUNITY.

ALTHOUGH I LIKE MOST OTHERS PERSONALLY HAVE SERIOUS

-10-

DOUBTS ABOUT THE RELIABILITY OR FAIRNESS OF BASING LAW SCHOOL

ADMITTANCE SOLELY ON OBJECTIVE CRITERIA I LIKE MOST OTHERS

AM AT A LOSS FOR SUPPLYING ADEQUATE ALTERNATIVES,

WHILE I

DO BELIEVE THAT WE SHOULD CONTINUALLY SEARCH FOR AND STUDY

OTHER METHODS I AM ALSO MOST SKEPTICAL OF THE EGALITARIAN

THEORIES PRESENTLY ADVANCED BY MANY,

SUBJECTIVE EVALUATION

RUNS MANY RISKS AND MAY IN THE FINAL ANALYSIS BE FAR

MORE UNFAIR THAN OBJECTIVE CRITERIA.

IT SEEMS TO ME THAT

SOCIAL MOTIVATION AND INCENTIVE FOR SUCCESS ARE JUST AS OFTEN

FOUND IN THE VERY SMART AS IN THE NOT SO SMART,

IN FACT -

I AM SURE THAT INTELLIGENCE WILL ALWAYS BE THE PRIME VIRTUE

OF A LAWYER.

THUS ON BALANCE IT SEEMS TO ME THAT ALL LAW

-11-

SCHOOLS SHOULD STRIVE TO PUT TOGETHER AS INTELLIGENT A GROUP

OF STUDENTS AS POSSIBLE,

I HAVE FAITH THAT BRAINS MAKE

A DIFFERENCE IN SOLVING LEGAL PROBLEMS LIKE ALL OTHER

PROBLEMS,

EVEN AMONG THE VINTAGE CROP OF TODAY'S STUDENTS -

MARKED GRADATIONS IN ABILITY PROBABLY DO EXIST,

LAW MAY

NOT REMAIN FOREVER THE MAGNET IT NOW IS FOR SO MANY OF OUR

BRIGHTEST PEOPLE.

I THINK FOR THE BENEFIT OF THE PUBLIC

AND THE PROFESSION WE OUGHT TO SEIZE THE PRESENT OPPORTUNITY

PRIMARILY TO ADMIT THE FINEST AMONG OUR LAW SCHOOL APPLICANTS.

PERHAPS IN THAT WAY WE WILL HELP TO RESHAPE AND ADVANCE OUR

PROFESSION AND SOCIETY BOTH NOW HAVE MAGNIFICENT SHORTCOMINGS,

SO I SUGGEST THAT YOU SHOULD NOT READILY GIVE UP

THE STRUGGLE TO SORT OUT THE VERY BEST OF THE APPLICANTS FOR

-12-

LOWERING STANDARDS BY A LAW SCHOOL SUCH AS

ITS STUDENT-TEACHER RATIOS TO MEET THE APPLICATION ONSLAUGHT -

IS SHORTSIGHTED,

INDEED THE LEGAL PROFESSION SHOULD AND

MUST RESIST A PROLIFERATION OF NEW LAW SCHOOLS ALMOST

NECESSARILY OF LOWER QUALITY THAN THOSE WE NOW HAVE SIMPLY

TO FURNISH SEATS FOR THOSE WHO ARE SEEKING A LEGAL EDUCATION

NOT READILY AVAILABLE,

SHOULD ALWAYS BE OUR GOAL,

QUALITY NOT QUANTITY I FEEL

I RESIST BLANKET RANDOM SELECTION OR

LOTTERY PROCEDURES FOR LAW SCHOOL ADMISSION BECAUSE IT WOULD

DENY THE PUBLIC THE BEST POSSIBLE LAWYER IN THE FUTURE, IN

SHORT WE SHOULD OPT FOR EXCELLENCE RATHER THAN A PIECEMEAL -

LOW QUALITY REACTION TO EXISTING ENROLLMENT PRESSURES,

YET AT THE SAME TIME I AM SUFFICIENTLY SKEPTICAL

-13-

ADMISSION,

OF THE VALIDITY OF EVALUATIVE FORMULAS NOW EMPLOYED BY MANY

SCHOOLS THAT I SUGGEST THAT ALL LAW SCHOOLS SHOULD SERIOUSLY

CONSIDER RESERVING AT LEAST FOR A WHILE A CERTAIN NUMBER

OF SEATS IN EACH BEGINNING CLASS FOR RANDOM SUBJECTIVE -

OR OTHER NON-QUANTITATIVE SELECTION PROCESSES,

THERE

ARE NEGLECTED INTERESTS IN SOCIETY THAT SHOULD AND MUST -

RECEIVE SPECIAL CONSIDERATION IN THE ADMISSIONS PROCESS,

WE MUST CONTINUE TO SEEK A GEOGRAPHICAL MIX NOT JUST AMONG

THE SEVERAL STATES AS MANY LAW SCHOOLS DO BUT WITHIN THE

STATES THEMSELVES SO THAT OUTLYING RURAL AREAS OF THE COUNTRY -

NOT JUST THE METROPOLITAN CENTERS ARE BROADLY REPRESENTED.

WE SHOULD IN SHORT SEEK TO CREATE IN EACH LAW SCHOOL A

STUDENT BODY WITH AS BROAD A CULTURAL AND SOCIO-ECONOMIC MIX

-14-

OF OUR SOCIETY AS A WHOLE AS POSSIBLE WITHOUT SIGNIFICANTLY

LOWERING OUR TARGET OF TRAINING THE BEST QUALIFIED LAWYERS

POSSIBLE.

I RECOGNIZE THAT THE WHOLE DISCUSSION OF LAW SCHOOL

ADMISSIONS MUST NOT BE VIEWED WITH COMPARTMENTALIZED VISION

AND THAT I AS A PRACTICING LAWYER DO NOT SEE ALL OF THE

PROBLEMS OF PRESENT-DAY LAW SCHOOL ADMINISTRATORS,

I DO

ACKNOWLEDGE THAT ADMISSION POLICIES MUST NECESSARILY CORRELATE WITH

LEGAL EDUCATION AND THAT A CHANGE IN LEGAL EDUCATION WILL EFFECT

ADMISSIONS CRITERIA AND PROCEDURES AND THAT LEGAL EDUCATION

IS UNDERGOING BOTH REANALYSES AND CHANGE.

CERTAINLY SERIOUS AND REPEATED DOUBTS HAVE BEEN

RAISED BY MANY LAWYERS AND LAW PROFESSORS AS TO THE EFFECTIVE-

NESS AND DESIRABILITY OF OUR PRESENT SYSTEM OF LEGAL EDUCATION.

-15-

THE FAMILIAR DEBATE OVER WHETHER LAW SCHOOLS SHOULD BE MORE

TRADE SCHOOL ORIENTED IS BEING ARGUED WITH EVEN GREATER

INTENSITY,

CLINICAL PROGRAMS PROPERLY ARE BEING IMPLEMENTED

AND CONSIDERED ALL OVER THE COUNTRY AND I HOPE THAT THE

TREND BOTH MAGNIFIES AND BECOMES MORE SOPHISTICATED,

MANI-

FESTATIONS OF CHANGE IN LAW SCHOOL EDUCATION ARE ALL AROUND US -

MANY PROPOSALS TO SHORTEN OR LEGTHEN LAW SCHOOL EDUCATION

HAVE BEEN ADVANCED.

THE WISDOM OF REQUIRING DEGREES FROM

FOUR YEAR COLLEGES BEFORE LAW SCHOOL ADMISSION IS LEGITIMATELY

BEING QUESTIONED.

I SHARE WITH MANY OTHER LAWYERS AN UNEASY

FEELING ABOUT WHETHER THE PRESENT SYSTEM OF LEGAL EDUCATION

MEETS THE NEEDS OF OUR SOCIETY AND THE ONGOING LEGAL PROFESSION,

WHAT IS THE BEST DIRECTION FOR LEGAL EDUCATION TO

-16-

TAKE IN LIGHT OF FUTURE DEMANDS AND LIKELY DEVELOPMENTS IN

THE LAW?

WHAT EFFECT SHOULD OR WILL NO FAULT AUTOMOBILE

INSURANCE NO FAULT DIVORCE SPECIALIZATION PARAPROFESSIONALS -

AND PREPAID LEGAL INSURANCE HAVE ON LEGAL EDUCATION?

SHOULD

ALL LAWYERS BE TRAINED ALIKE?

GENERALLY SOUGHT BY PRACTITIONERS'?

SHOULD A LEGAL PH.D. BE

OR SHOULD WE IN THE LAW

REQUIRE AN INTERNSHIP AS DO OTHER PROFESSIONALS?

SHOULD

THERE BE AN EVEN MORE EXTENSIVE CLINICAL APPROACH TO LAW

SCHOOL EDUCATION?

YEARS?

SHOULD LAW EDUCATION BE SHORTENED TO TWO

OR LENGTHENED TO FOUR?

INTERDISCIPLINARY TRAINING?

PEOPLE?

SHOULD THERE BE MORE

WHAT DOES A LAW SCHOOL DO TO

DOES IT CHANGE A STUDENT'S THOUGHT PROCESSES?

WHAT SHOULD BE THE ROLE OF THE LAW SCHOOL IN THE COMMUNITY?

-17-

SHOULD WE TRAIN PRACTITIONERS OR LEGAL SCHOLARS?

ABOUT COURSE CONTENT?

THE ANSWERS TO THESE QUESTIONS OF COURSE DO

ULTIMATELY BEAR DIRECTLY UPON ADMISSIONS POLICIES.

ADMIS-

SIONS DO ULTIMATELY DEPEND ON THE TYPE OF EDUCATION OFFERED -

AND I KNOW THAT AND I KNOW THAT BOTH EDUCATIONAL POLICIES AND

ADMISSIONS POLICIES ARE COMPLEX AND THAT THE FACTORS FACING

THOSE WHO MUST DECIDE ARE NEVER UNIFORM,

BUT IF IT WAS NOT

DIFFICULT IT WOULD NOT BE THE MAJOR PROBLEM THAT IT IS,

WE DO KNOW THAT OUR RESPECTIVE STATES HAVE TRADITIONALLY REGULATED

THE PRACTICE OF LAW WITHIN THEIR BORDERS TO ASSURE FIRST -

THAT THE PRACTITIONER HAS THE REQUISITE SKILLS OF A LAWYER

WITH THE KNOWLEDGE OF THE LAWS OF THE PARTICULAR STATE;

AND

-18-

WHAT

SECOND THAT HE IS SUBJECT TO ETHICAL CONTROLS WITHIN THE

STATE,

BUT OVER THE YEARS THERE HAS BEEN A GRADUAL

EROSION OF THAT RULE,

RULINGS BY THE SUPREME COURT OF

THE UNITED STATES IN RECENT YEARS HAVE MARKEDLY INCREASED

THE PRESSURE ON STATE REGULATION OF PRACTICE,

CHANGE IN

THE EVERY-DAY REGULATION OF THE PRACTICE OF LAW IS WITH US

AND EVEN MORE CHANGE IS COMING AND WE WHO ARE INTERESTED IN

LAW PRACTICE AND LEGAL EDUCATION AND JUSTICE MUST BE READY,

IN OUR LIFETIMES MIGRATORY PRACTICE THROUGHOUT

THE UNITED STATES WILL ACHIEVE A SOUND LEGAL BASE,

AS A

MATTER OF FACT WE ALREADY HAVE DE FACTO NATIONAL MIGRATORY

PRACTICE.

LARGE LAW FIRMS ARE REGULARLY SENDING LAWYERS ALL

OVER THE UNITED STATES TO HANDLE DEPOSITIONS TO NEGOTIATE

-19-

FOR PURCHASE OF LAND OR COMPANIES TO NEGOTIATE LABOR

CONTRACTS OR TO HANDLE PRACTICALLY ANYTHING IN THE WHOLE

SPECTRUM OF THE PRACTICE OF LAW.

WE ONLY HEAR ABOUT THESE

ACTIVITIES IN THE COURTS WHEN BY SOME ACCIDENT A FEE FOR

THOSE LEGAL SERVICES IS DISPUTED,

ALTHOUGH WE STILL ADHERE

TO THE RULE THAT A LAWYER IS A LAWYER ONLY IN HIS NATIVE STATE -

AND IS A LAYMAN AS SOON AS HE CROSSES THE BORDER OF HIS HOME

STATE THIS RULE IS ALSO FADING AWAY AND I BELIEVE THAT IT

PROPERLY SHOULD,

IN EVERY AREA OF THE PRACTICE OF LAW THERE IS AN

INCREASING POTENTIAL FOR THE BROADENING OF THE RIGHT OF INTER-

STATE PRACTICE.

THE VARIOUS CASES WHICH HAVE ARISEN TO

DATE HAVE BEEN WORKED OUT DELICATELY.

BUT AN EXPLOSIVE -

-20-

UNRESOLVABLE ISSUE PERTAINING TO THE RIGHTS OF THE STATES TO

REGULATE THE PRACTICE OF LAW MAY YET ARISE WHICH CAN ONLY BE

RESOLVED BY THE SUPREME COURT OF THE UNITED STATES. IN

THAT EVENT THE SUPREME COURT MAY OR MAY NOT CONTINUE TO HOLD

THAT THE STATES HAVE A LEGITIMATE INTEREST TO PROTECT IN THE

ADMISSION AND DISCIPLINE OF LAWYERS,.

MY OWN CONCLUSION IS THAT WE HAVE INTERSTATE

PRACTICE OF LAW NOW AND THAT RECOGNIZED OR UNRECOGNIZED -

IT IS GOING TO CONTINUE TO GROW IN .OUR COUNTRY.

FOR THAT

REASON I THINK THAT IT IS ESSENTIAL THAT LAWYERS EVERYWHERE

BE INTERESTED IN LAW SCHOOLS EVERYWHERE,

MUCH MORE MUST BE DONE IF WE ARE TO MAKE OUR LAW

EDUCATIONAL INSTITUTIONS FULLY RESPONSIVE TO THE NEEDS OF OUR

-21-

ONLY WITH FINE LAWYERS AS ADVOCATES CAN OUR

SYSTEM OF JUSTICE FUNCTION TO THE BENEFIT OF ALL OUR CITIZENS -

AND PICKING AND EDUCATING THE FINEST LAW STUDENTS IN A FINE

AND FINANCIALLY SECURE LAW SCHOOL IS THE ONLY FEASIBLE FIRST

STEP IN THAT DIRECTION,

-22-

PEOPLE,

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 204

VOLUME XV

nQa It

REMARKS OF:

BEFORE:

CHESTERFIELD SMITH
LAWYER
TAMPA, FLORIDA

CONFERENCE ON INVESTMENTS IN BRAZIL
SPONSORED BY EXCHANGE NATIONAL BANK
OF TAMPA AND HOLLAND & KNIGHT

DATE OF DELIVERY:

TUESDAY, OCTOBER 24, 1978
LUNCHEON
12:00 NOON

TEN MINUTES

TIME:

BOTH DEVELOPED AND DEVELOPING NATIONS TODAY BY

NECESSITY HAVE BECOME ECONOMICALLY INTERDEPENDENT.

THE

PROLIFERATION DURING RECENT YEARS OF MULTI-NATIONAL CORPORATIONS -

TRANSNATIONAL INVESTMENTS AND GLOBAL TRADE AGREEMENTS

DRAMATICALLY INDICATES THE INCREASING INTERNATIONAL ORIENTATION

OF BUSINESS IN ALL COUNTRIES REGARDLESS OF THAT COUNTRY'S

ECONOMIC DEVELOPMENT,

INVESTORS AND BUSINESSMEN THE WORLD

OVER ARE TODAY LOOKING BEYOND TRADITIONAL BORDERS FOR NEW

MARKETS AND INVESTMENT OPPORTUNITIES.

THE ENTIRE WORLD TRULY

HAS BECOME THE MARKETPLACE OF ALL NATIONS,

SINCE BANKERS ACCOUNTANTS AND LAWYERS MUST KEEP

PACE WITH THE NEEDS OF THEIR CLIENTS THESE ECONOMIC DEVELOPMENTS

HAVE HAD A DISTINCT IMPACT UPON THE SERVICE PROFESSIONS -

-1-

AND PERHAPS SIGNIFICANTLY SO IN FLORIDA,

THE NEEDS OF BUSINESSMEN IN FLORIDA ARE TRANSCENDING OUR

NATIONAL BOUNDARIES AND MORE AND MORE THERE HAS THUS BEEN

AN ESCALATION OF INDIVIDUAL INTEREST AND PARTICIPATION BY

FLORIDA PROFESSIONALS IN INTERNATIONAL ACTIVITIES,

IN FACT -

THE BUSINESS OF BANKERS ACCOUNTANTS AND LAWYERS THROUGHOUT

OUR NATION INCLUDING THOSE FAR REMOVED FROM THE LARGE

METROPOLITAN AREAS HAS IN RECENT YEARS TAKEN ON AN INTERNATIONAL

FLAVOR.

IN ORDER TO HELP THOSE PEOPLE MEET THE CHALLENGES

POSED BY THAT WORLDWIDE TRADE INVESTMENT AND BUSINESS

INVOLVEMENT GREATER EMPHASIS AND PROFESSIONAL ACTIVITY HAS

THUS BEEN FOCUSED ON INTERNATIONAL LAW AND ACTIVITIES BY ALMOST

ALL LARGE BANKS ACCOUNTANTS AND LAW FIRMS AND BY MANY

-2-

MORE AND MORE

SMALLER FIRMS AND INSTITUTIONS THROUGHOUT OUR STATE,

BUT I BELIEVE THAT THOSE ACTIVITIES ARE ONLY

HARBINGERS OF EVEN MORE EXCITING THINGS TO COME.

IT SEEMS

TO ME THAT WE ARE ON THE THRESHOLD OF A NEW WORLD-WIDE BUSINESS

COMMUNITY.

INDEED AS A LAWYER I FORESEE THAT INTERNATIONAL

LEGAL COMMUNITY AS MORE AND MORE TRADE AND INVESTMENT BARRIERS

FALL AS MEN OF ALL NATIONS INEXORABLY BECOME MORE CLOSELY

BOUND BY ECONOMIC TIES,

FLORIDA BANKERS ACCOUNTANTS AND

LAWYERS WILL AND SHOULD FOLLOW FLORIDA BUSINESSMEN AS THEY

MOVE OUTWARD BEYOND NATIONAL BOUNDARIES,

THE SUCCESS OF

THE EUROPEAN ECONOMIC COMMUNITY THE RECENT EAST-WEST TRADE

AGREEMENTS THE WORLD-WIDE EXPANSION OF FOREIGN INVESTMENTS -

AND THE INTERNATIONAL ECONOMIC DEVELOPMENT OF COUNTRIES SUCH

-3-

AS JAPAN WEST GERMANY AND BRAZIL ALL PORTEND IN THAT

DIRECTION,

CERTAINLY THE EXPERIENCE OF OUR OWN COUNTRY

SEEMS TO BEAR OUT THIS PREDICTION.

IN THE LAST TWENTY

YEARS THE BOOK VALUE OF U. S. FOREIGN INVESTMENT HAS GROWN

FROM UNDER 15 BILLION TO WELL OVER 100 BILLION DOLLARS,

THE ANNUAL SALES REVENUE OF AMERICAN SUBSIDIARIES AND

AFFILIATES ABROAD HAS GROWN TO OVER AN ESTIMATED 300 BILLION

DOLLARS A VALUE MUCH MUCH GREATER THAN THAT OF ALL OUR EXPORTS,

YET I FORESEE GEOMETRIC INCREASES IN THIS TYPE OF EXPANSION.

WE NOW HAVE SATELLITES AND SKYLABS FROM WHICH HUNDREDS OF

MILES ABOVE THE EARTH WE TRACE SCHOOLS OF FISH LOCATE OIL -

COAL AND GAS DEPOSITS MEASURE URBAN GROWTH AND PREDICT

PRECISE WEATHER PATTERNS,

IT IS OBVIOUS TO ME THAT WE HAVE

-4-

JUST BARELY OPENED THE DOOR TO INTERNATIONAL ECONOMIC POSSIBILITIES.

THE FUTURE IS INDEED BRIGHT FOR THOSE FLORIDA BUSINESSMEN WITH

AN EYE TO INTERNATIONAL EXPANSION AND I AM CONFIDENT THAT THE

FLORIDA PROFESSIONAL WILL GO RIGHT ALONG THE SAME PATH.

MY OPTIMISM HOWEVER DOES NOT DISREGARD THE VERY

REAL PROBLEMS IN THE WORLD TODAY WHICH MITIGATE AGAINST THE

NEW WORLD ORDER THAT I ENVISION.

CERTAINLY ONE CANNOT PRAGMATICALLY AVOID THE VERY

REAL OBSTACLES IN THE PATH TO A WORLD-WIDE ECONOMIC COMMUNITY

POSED BY THE EXISTING POLITICAL SOCIAL AND CULTURAL

DIFFERENCES BETWEEN THE PEOPLES OF OUR WORLD.

NATIONAL SELF-

INTEREST NATIONAL HATE AND NATIONAL PREJUDICE DIVIDE MANY

PEOPLES.

CHAUVINISM REMAINS THE ORDER OF THE DAY,

-5-

COMPETITION FOR THE NATURAL RESOURCES WHICH WE SO LONG ASSUMED

TO BE AVAILABLE IN BOUNTIFUL SUPPLY HAS FOSTERED MORE AND

MORE DIFFICULTIES BETWEEN NATIONS,

THE NOT YET EXPLOITED

OCEAN BOTTOMS AND THE RICHES OF THE SEA ARE BEING FOUGHT OVER

WITH INCREASING FEROCITY,

TERRITORIAL JURISDICTION RESOURCE

JURISDICTION IS MORE AND MORE AN AREA FOR INTERNATIONAL

CONTENTION,

MANY PEOPLES OF THE WORLD LIVE IN A CONSTANT

STATE OF HUNGER AND FACE STARVATION EVERY DAY,

WE AS A

RACE HAVE BEEN LIVING FOR A GENERATION OR MORE UNDER THE

CONSTANT THREAT OF ANNIHILATION BY WHAT THE CYNICS FIGURE IS

AN INEVITABLE NUCLEAR WAR,

COUNTRIES CONTINUE JEALOUSLY

TO RING THEMSELVES WITH RADE BARRIERS EXPORT- IMPORT QUOTAS -

AND TARIFFS,

POSSIBILITIES OF PRIVATE INVESTMENTS ABROAD

-6-

ARE CONTINUALLY CLOUDED BY POLITICAL ISSUES AND ARE OFTEN

MIRED IN SOMEWHAT IRRELEVANT DEBATES INVOLVING ECONOMIC SELF

DETERMINATION OR SOVEREIGNTY OVER NATURAL WEALTH AND RESOURCES -

OR ON THE RIGHT TO EFFECTIVE AND ADEQUATE COMPENSATION IN CASE

OF NATIONALIZATION OR ON OTHER ISSUES WHICH MEN OF REASON

AND GOOD WILL SHOULD BE ABLE TO RESOLVE,

IN FACT I

SUGGEST THAT A STRANGER WHO SAT IN ON ALL OR MOST OF SUCH

NEGOTIATIONS WITHOUT UNDERSTANDING HISTORY CERTAINLY WOULD

GET A DIM VIEW OF THE PROSPECTS OF WORLD ORDER AND ECONOMIC

INTER-DEPENDENCE.

NEVERTHELESS I SUGGEST THAT THE GROWTH OF MULTI-

NATION BUSINESSES AND TRANS-NATIONAL INVESTMENTS HAS PLACED

APPROPRIATE EMPHASIS UPON PROBABLY THE ONLY LASTING HOPE OF

-7-

MANKIND FOR TRANQUILITY THAT IS THAT ALL HUMANS BECOME

SO ECONOMICALLY RELATED THAT THEY MUST OF NECESSITY AVOID THE

WHOLESALE DESTRUCTION OF WAR AND SEEK PEACEFUL LEGAL SOLUTIONS

TO THEIR DISPUTES,

PERHAPS ECONOMIC TIES CAN FOSTER AN ERA OF COOPERATION -

PERHAPS ECONOMIC TIES NECESSARILY WILL REQUIRE HUMAN BEINGS TO

GET ALONG WITH EACH OTHER IN ORDER TO DO BUSINESS WITH EACH

OTHER,

CERTAINLY IT IS CLEAR TO ME AS A LAWYER THAT TO

INSURE THAT SUCH ECONOMIC PRACTICES WILL BE BENEFICIAL TO ALL

PARTIES AN ENHANCED RELIANCE UPON INTERNATIONAL LAW MUST BE

FOSTERED,

REASON DICTATES THAT THE OBVIOUS NEED FOR METHODS

TO RESOLVE BUSINESS DIFFERENCES ARISING OUT OF OUR BURGEONING

INTERNATIONAL ECONOMIC EXPANSION PUT AN EMPHASIS AND URGENCY

-8-

UPON DEVELOPING AN APPROPRIATE INTERNATIONAL LEGAL APPARATUS

TO WHICH THE INTERNATIONAL BUSINESSMAN CAN TURN WITH CONFIDENCE

FOR RESOLUTION OF DISPUTES WITH EQUITY AND FAIRNESS,

PRIVATE INVESTMENTS ABROAD BY ALL NATIONS IS

OBVIOUSLY A WORTHY PRACTICE TO BE PROTECTED AND PROMOTED BY

ALL NATIONS.

EVEN THOUGH IT IS OBVIOUS WE STILL MUST

HOPE THAT SUCH A POLICY WILL BE ADOPTED BY ALL NATIONS WE

MUST SO HOPE BECAUSE LOGIC PROCLAIMS THAT THE ADOPTION OF

SUCH A POLICY WILL ENCOURAGE PERMANENT PEACE,

AS PEOPLE

TRADE AND WORK TOGETHER THEY WILL LEARN TO UNDERSTAND AND

RESPECT EACH OTHER, THE RELIANCE ON LAW BY NATIONS CAN

ONLY LEAD TO A WORLD-WIDE COMMITMENT TO AMITY AND CONCORD

FOR IT WOULD NOT BE IN THE INTEREST OF NATIONS TO FIGHT WITH

-9-

THEIR ECONOMIC BROTHERS, ECONOMIC TIES ARE HEALTHY TIES.

NATIONS WHICH TRADE TOGETHER MAY MORE EFFECTIVELY LIVE TOGETHER -

WITHOUT HOSTILITIES,

I FORESEE THE GROWTH OF AN INTERNATIONALLY ADMINISTERED

JUSTICE WHEREBY MEN AND WOMEN EVERYWHERE WILL SEEK PEACEFUL

RESOLUTIONS OF DISPUTES THROUGH ESTABLISHED INTERNATIONAL

TRIBUNALS RATHER THAN RESORT TO ARMED CONFLICT, I SUBMIT

THAT WHEN THE RULE OF LAW IS ACCEPTED AS THE GUARDIAN OF

PRIVATE INVESTMENTS ABROAD IT ALSO AND INEVITABLY WILL COME

TO BE ACCEPTED AS THE ALTERNATIVE TO ARMED CONFLICT AND WORLD

PEACE WILL HAVE ARRIVED.

IT IS IN THIS DIRECTION THAT MY OWN LAW FIRM FORESEES

THE AMERICAN LAWYERS BECOMING INCREASINGLY MORE INVOLVED WITH

-10-

ATTORNEYS FROM THROUGHOUT THE WORLD JOINING IN SEEKING

TOGETHER ALWAYS TO PROMOTE LAW AS A TOOL OF SOLVING INTERNATIONAL

PROBLEMS.

THE GROWTH OF AN INTERNATIONAL LEGAL ORDER WILL DEMAND

THE CONCERTED ATTENTION OF ALL SERVICE PROFESSIONALS,

IT IS -

I BELIEVE THE UNIQUE TASK OF BOTH THE BRAZILIAN AND AMERICAN

BUSINESS SERVICE PROFESSIONALS TO PROMOTE THIS NEW ORDER ON

BOTH THE NATIONAL AND THE INTERNATIONAL LEVEL,

I AM CONFIDENT

THAT FLORIDA LAWYERS ARE READY TO DO THEIR PART.

THERE IS A LONG ROAD TO TRAVEL TO ACHIEVE A LASTING

ACCORD AMONG THE CONFLICTING HUMAN WILLS INTERESTS AND

FORCES OF THIS WORLD,

PEOPLE WHO CARE EVERYWHERE MUST BE

ACTIVELY CONCERNED IN DEMONSTRATING THAT THE LAW THROUGH TRADE

-11-

AND BUSINESS CAN BECOME THE TRUE UNIFYING FORCE WE HAVE SO LONG

SOUGHT AMONG THE PEOPLE OF THE EARTH.

NATIONS WHO TRADE

TOGETHER STAY TOGETHER.

THANK YOU,

-12-

REMARKS OF:

CHESTERFIELD SMITH
LAWYER
TAMPA, FLORIDA

BEFORE:

CONFERENCE ON INVESTMENTS IN BRAZIL
SPONSORED BY EXCHANGE NATIONAL BANK
OF TAMPA AND HOLLAND & KNIGHT

DATE OF DELIVERY:

TUESDAY, OCTOBER 24, 1978
LUNCHEON
12:00 NOON

TEN MINUTES

TIME:

BOTH DEVELOPED AND DEVELOPING NATIONS TODAY BY

NECESSITY HAVE BECOME ECONOMICALLY INTERDEPENDENT.

THE

PROLIFERATION DURING RECENT YEARS OF MULTI-NATIONAL CORPORATIONS -

TRANSNATIONAL INVESTMENTS AND GLOBAL TRADE AGREEMENTS

DRAMATICALLY INDICATES THE INCREASING INTERNATIONAL ORIENTATION

OF BUSINESS IN ALL COUNTRIES REGARDLESS OF THAT COUNTRY'S

ECONOMIC DEVELOPMENT,

INVESTORS AND BUSINESSMEN THE WORLD

OVER ARE TODAY LOOKING BEYOND TRADITIONAL BORDERS FOR NEW

MARKETS AND INVESTMENT OPPORTUNITIES.

THE ENTIRE WORLD TRULY

HAS BECOME THE MARKETPLACE OF ALL NATIONS,

SINCE LAWYERS MUST KEEP PACE WITH THE NEEDS OF THEIR

CLIENTS THESE ECONOMIC DEVELOPMENTS HAVE HAD A DISTINCT IMPACT

UPON THE LEGAL PROFESSION AND PERHAPS SIGNIFICANTLY SO IN

FLORIDA.

MORE AND MORE THE LEGAL NEEDS OF BUSINESSMEN IN

-1-

FLORIDA ARE TRANSCENDING OUR NATIONAL BOUNDARIES AND MORE

AND MORE THERE HAS THUS BEEN AN ESCALATION OF INDIVIDUAL

LAWYER INTEREST AND PARTICIPATION BY FLORIDA LAWYERS IN

INTERNATIONAL LAW,

IN FACT THE BUSINESS OF LAWYERS

THROUGHOUT OUR NATION INCLUDING THOSE FAR REMOVED FROM THE

LARGE METROPOLITAN AREAS HAS IN RECENT YEARS TAKEN ON AN

INTERNATIONAL FLAVOR.

IN ORDER TO HELP THOSE LAWYERS MEET

THE LEGAL CHALLENGES POSED BY THAT WORLDWIDE TRADE INVESTMENT -

AND BUSINESS INVOLVEMENT GREATER EMPHASIS AND PROFESSIONAL

ACTIVITY HAS THUS BEEN FOCUSED ON INTERNATIONAL LAW BY ALMOST

ALL LARGE LAW FIRMS AND BY MANY SMALLER LAW FIRMS AND

INDIVIDUAL PRACTITIONERS THROUGHOUT OUR STATE,

BUT I BELIEVE THAT THOSE ACTIVITIES ARE ONLY

HARBINGERS OF EVEN MORE EXCITING THINGS TO COME,

IT SEEMS

-2-

TO ME THAT WE ARE ON THE THRESHOLD OF A NEW WORLD-WIDE

LEGAL COMMUNITY,

'I FORESEE THAT INTERNATIONAL LEGAL

COMMUNITY AS MORE AND MORE TRADE AND INVESTMENT BARRIERS FALL -

AS MEN OF ALL NATIONS INEXORABLY BECOME MORE CLOSELY BOUND BY

ECONOMIC TIES.

FLORIDA LAWYERS WILL AND SHOULD FOLLOW

FLORIDA BUSINESSMEN AS THEY MOVE OUTWARD BEYOND NATIONAL

BOUNDARIES.

THE SUCCESS OF THE EUROPEAN ECONOMIC COMMUNITY -

THE RECENT EAST-WEST TRADE AGREEMENTS THE WORLD-WIDE

EXPANSION OF FOREIGN INVESTMENTS AND THE INTERNATIONAL

ECONOMIC DEVELOPMENT OF COUNTRIES SUCH AS JAPAN WEST GERMANY -

AND BRAZIL ALL PORTEND IN THAT DIRECTION,

CERTAINLY -

THE EXPERIENCE OF OUR OWN COUNTRY SEEMS TO BEAR OUT THIS

PREDICTION,

IN THE LAST TWENTY YEARS THE BOOK VALUE OF

U. S. FOREIGN INVESTMENT HAS GROWN FROM UNDER 15 BILLION TO

-3-

WELL OVER 100 BILLION DOLLARS.

OF AMERICAN SUBSIDIARIES AND AFFILIATES ABROAD HAS GROWN TO

OVER AN ESTIMATED 300 BILLION DOLLARS A VALUE MUCH MUCH

GREATER THAN THAT OF ALL OUR EXPORTS.

YET I FORESEE

GEOMETRIC INCREASES IN THIS TYPE OF EXPANSION,

WE NOW

HAVE SATELLITES AND SKYLABS FROM WHICH HUNDREDS OF MILES

ABOVE THE EARTH WE TRACE SCHOOLS OF FISH LOCATE OIL COAL

AND GAS DEPOSITS MEASURE URBAN GROWTH AND PREDICT PRECISE

WEATHER PATTERNS,

IT IS OBVIOUS TO ME THAT WE HAVE JUST

BARELY OPENED THE DOOR TO INTERNATIONAL ECONOMIC POSSIBILITIES,

THE FUTURE IS INDEED BRIGHT FOR THOSE FLORIDA BUSINESSMEN WITH

AN EYE TO INTERNATIONAL EXPANSION AND I AM CONFIDENT THAT THE

FLORIDA LAWYER WHO PRACTICES INTERNATIONAL LAW WILL GO RIGHT

ALONG THE SAME PATH.

-I4-

THE ANNUAL SALES REVENUE

MY OPTIMISM HOWEVER DOES NOT DISREGARD THE VERY

REAL PROBLEMS IN THE WORLD TODAY WHICH MITIGATE AGAINST THE

WORLD LEGAL ORDER THAT I ENVISION,

CERTAINLY ONE CANNOT PRAGMATICALLY AVOID THE VERY

REAL OBSTACLES IN THE PATH TO A WORLD-WIDE ECONOMIC COMMUNITY

POSED BY THE EXISTING POLITICAL SOCIAL AND CULTURAL

DIFFERENCES BETWEEN THE PEOPLES OF OUR WORLD.

NATIONAL SELF-

INTEREST NATIONAL HATE AND NATIONAL PREJUDICE DIVIDE MANY

PEOPLES,

CHAUVINISM REMAINS THE ORDER OF THE DAY.

TUITION FOR THE NATURAL RESOURCES WHICH WE SO LONG ASSUMED TO

BE AVAILABLE IN BOUNTIFUL SUPPLY HAS FOSTERED MORE AND MORE

DIFFICULTIES BETWEEN NATIONS.

THE NOT YET EXPLOITED OCEAN

BOTTOMS AND THE RICHES OF THE SEA ARE BEING FOUGHT OVER WITH

INCREASING FEROCITY,

TERRITORIAL JURISDICTION RESOURCE

-5-

COMPE-

JURISDICTION IS MORE AND MORE AN AREA FOR INTERNATIONAL

CONTENTION.

MANY PEOPLES OF THE WORLD LIVE IN A CONSTANT

STATE OF HUNGER AND FACE STARVATION EVERY DAY.

WE AS A

RACE HAVE BEEN LIVING FOR A GENERATION OR MORE UNDER THE

CONSTANT THREAT OF ANNIHILATION BY WHAT THE CYNICS FIGURE IS

AN INEVITABLE NUCLEAR WAR,

COUNTRIES CONTINUE JEALOUSLY

TO RING THEMSELVES WITH TRADE BARRIERS EXPORT-IMPORT QUOTAS -

AND TARIFFS.

POSSIBILITIES OF PRIVATE INVESTMENTS ABROAD

ARE CONTINUALLY CLOUDED BY POLITICAL ISSUES AND ARE OFTEN

MIRED IN SOMEWHAT IRRELEVANT DEBATES INVOLVING ECONOMIC SELF

DETERMINATION OR SOVEREIGNTY OVER NATURAL WEALTH AND RESOURCES -

OR ON THE RIGHT TO EFFECTIVE AND ADEQUATE COMPENSATION IN CASE

OF NATIONALIZATION OR ON OTHER ISSUES WHICH MEN OF REASON

AND GOOD WILL SHOULD BE ABLE TO RESOLVE,

IN FACT I

-6-

SUGGEST THAT A STRANGER WHO SAT IN ON ALL OR MOST OF SUCH

NEGOTIATIONS WITHOUT'UNDERSTANDING HISTORY CERTAINLY WOULD

GET A DIM VIEW OF THE PROSPECTS OF WORLD ORDER AND ECONOMIC

INTER-DEPENDENCE,

NEVERTHELESS I SUGGEST THAT THE GROWTH OF MULTI-

NATION BUSINESSES AND TRANS-NATIONAL INVESTMENTS HAS PLACED

APPROPRIATE EMPHASIS UPON PROBABLY THE ONLY LASTING HOPE OF

MANKIND FOR TRANQUILLITY THAT IS THAT ALL HUMANS BECOME

SO ECONOMICALLY RELATED THAT THEY MUST OF NECESSITY AVOID THE

WHOLESALE DESTRUCTION OF WAR AND SEEK PEACEFUL LEGAL SOLUTIONS

TO THEIR DISPUTES.

PERHAPS ECONOMIC TIES CAN FOSTER AN ERA OF COOPERATION -

PERHAPS ECONOMIC TIES NECESSARILY WILL REQUIRE HUMAN BEINGS TO

GET ALONG WITH EACH OTHER IN ORDER TO DO BUSINESS WITH EACH

-7-

CERTAINLY IT IS CLEAR TO ME THAT TO INSURE THAT

SUCH ECONOMIC PRACTICES WILL BE BENEFICIAL TO ALL PARTIES -

AN ENHANCED RELIANCE UPON INTERNATIONAL LAW MUST BE FOSTERED.

REASON DICTATES THAT THE OBVIOUS NEED FOR METHODS TO RESOLVE

BUSINESS DIFFERENCES ARISING OUT OF OUR BURGEONING INTERNATIONAL

ECONOMIC EXPANSION PUT AN EMPHASIS AND URGENCY UPON DEVELOPING

AN APPROPRIATE INTERNATIONAL LEGAL APPARATUS TO WHICH THE

INTERNATIONAL BUSINESSMAN CAN TURN WITH CONFIDENCE FOR RESOLUTION

OF DISPUTES WITH EQUITY AND FAIRNESS,

WHILE MORE INTER-

NATIONAL AND TRANSNATIONAL LAW HAS BEEN COMPILED EXPANDED

AND ACCEPTED IN THE LAST THIRTY YEARS THAN IN THE WHOLE OF

RECORDED HISTORY THIS INCREASE MUST AND INEVITABLY WILL

CONTINUE IN EVEN LARGER MEASURE WITHIN THE NEXT THIRTY YEARS.

PRIVATE INVESTMENTS ABROAD BY ALL NATIONS IS

-8-

OTHER,

OBVIOUSLY A WORTHY PRACTICE TO BE PROTECTED AND PROMOTED BY

ALL NATIONS,

EVEN THOUGH IT IS OBVIOUS WE STILL MUST

HOPE THAT SUCH A POLICY WILL BE ADOPTED BY ALL NATIONS WE

MUST SO HOPE BECAUSE LOGIC PROCLAIMS THAT THE ADOPTION OF

SUCH A POLICY WILL ENCOURAGE PERMANENT PEACE,

AS PEOPLE

TRADE AND WORK TOGETHER THEY WILL LEARN TO UNDERSTAND AND

RESPECT EACH OTHER,

THE RELIANCE ON LAW BY NATIONS CAN

ONLY LEAD TO A WORLD-WIDE COMMITMENT TO AMITY AND CONCORD

FOR IT WOULD NOT BE IN THE INTEREST OF NATIONS TO FIGHT WITH

THEIR ECONOMIC BROTHERS,

ECONOMIC TIES ARE HEALTHY TIES.

NATIONS WHICH TRADE TOGETHER MAY MORE EFFECTIVELY LIVE TOGETHER -

WITHOUT HOSTILITIES.

I FORESEE THE GROWTH OF AN INTERNATIONALLY ADMINISTERED

JUSTICE WHEREBY MEN AND WOMEN EVERYWHERE WILL SEEK PEACEFUL

-9-

RESOLUTIONS OF DISPUTES THROUGH ESTABLISHED INTERNATIONAL

TRIBUNALS RATHER THAN RESORT TO ARMED CONFLICT.

I SUBMIT

THAT WHEN THE RULE OF LAW IS ACCEPTED AS THE GUARDIAN OF

PRIVATE INVESTMENTS ABROAD IT ALSO AND INEVITABLY WILL COME

TO BE ACCEPTED AS THE ALTERNATIVE TO ARMED CONFLICT AND WORLD

PEACE WILL HAVE ARRIVED.

IT IS IN THIS DIRECTION THAT I FORESEE THE AMERICAN

LAWYERS BECOMING INCREASINGLY MORE INVOLVED WITH ATTORNEYS

FROM THROUGHOUT THE WORLD JOINING IN SEEKING TOGETHER ALWAYS

TO PROMOTE LAW AS A TOOL OF SOLVING INTERNATIONAL PROBLEMS,

THE GROWTH OF AN INTERNATIONAL LEGAL ORDER WILL DEMAND

THE CONCERTED ATTENTION OF LAWYERS EVERYWHERE,

IT IS I

BELIEVE THE UNIQUE TASK OF BOTH THE BRAZILIAN AND AMERICAN

ATTORNEY TO PROMOTE LAW ON BOTH THE NATIONAL AND THE INTERNATIONAL

-10-

I AM CONFIDENT THAT FLORIDA LAWYERS ARE READY TO

DO THEIR PART,

THERE IS A LONG ROAD TO TRAVEL TO ACHIEVE A LASTING

ACCORD AMONG THE CONFLICTING HUMAN WILLS INTERESTS AND

FORCES OF THIS WORLD,

LAWYERS EVERYWHERE MUST BE ACTIVELY

CONCERNED IN DEMONSTRATING THAT THE LAW THROUGH TRADE AND

BUSINESS CAN BECOME THE TRUE UNIFYING FORCE WE HAVE SO LONG

SOUGHT AMONG THE PEOPLE OF THE EARTH.

NATIONS WHO TRADE

TOGETHER STAY TOGETHER,

THANK YOU,

-11-

LEVEL,

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 205

VOLUME XV

ADDRESS OF:

BEFORE:

DATE:

CHESTERFIELD SMITH
FELLOW, INTERNATIONAL
ACADEMY OF TRIAL LAWYERS
TAMPA, FLORIDA

INTERNATIONAL ACADEMY OF
TRIAL LAWYERS
TAMPA REGIONAL MEETING

SATURDAY, OCTOBER 28, 1978

"WHAT IS AN ADVOCATE? WHAT
IS HIS COLORATION?"

TITLE:

FIFTEEN MINUTES

-^r

TIME:

QUITE OBVIOUSLY DURING THE LAST SEVERAL YEARS IT HAS

BEEN MY PRIVILEGE TO MEET QUITE OFTEN WITH LAWYERS FROM EVERYWHERE.

TODAY I SHALL CONSOLIDATE THE IMPRESSIONS WHICH I HAVE PERSONALLY

FORMULATED IN THAT PERIOD TO DEFINE -- WHAT IS A LAWYER? -- WHAT

IS HIS FUTURE?

ADMITTEDLY ONE LAWYER'S THOUGHTS ABOUT HIS PROFESSIONAL

COUNTERPARTS WILL NOT BE FULLY ACCEPTABLE TO MANY OF THE GREAT TRIAL

LAWYERS WHO ARE PRESENT,

NEVERTHELESS AS A TRIAL LAWYER MYSELF -

I FEAR NOT SO I SHALL CHARGE AHEAD WITH KNOWLEDGE THAT I SHALL BE

QUICKLY CORRECTED WHEN I DO ADVANCE SERIOUS MISCONCEPTIONS. I

SHALL WITH UNBOUNDED CONFIDENCE THEN (1) FATHOM THE UNFATHOMABLE

(2) EXPLAIN THE INEXPLICABLE (3) DISPUTE THE INDISPUTABLE (4) FORGET

THE UNFORGETTABLE AND (5) UNSCREW THE INSCRUTABLE,

THE TRIAL LAWYER HISTORICALLY HAS BEEN MALIGNED AND ABUSED.

ANY DEFENSE ON MY PART IS OBVIOUSLY SELF-SERVING BUT I AM CONVINCED

THAT MOST OF THAT CRITICISM IS NOT WELL-FOUNDED,

MY OWN POSITION

WAS EXPRESSED BY THAT DISTINGUISHED LAWYER HARRISON TWEED WHEN

HE SAID: "I HAVE A HIGH OPINION OF LAWYERS. WITH ALL THEIR FAULTS ....

THEY ARE BETTER TO WORK WITH OR PLAY WITH OR FIGHT WITH OR

DRINK WITH THAN ANY OTHER VARIETY OF MANKIND."

HIGHLIGHTS OF THAT AGE-OLD ABUSE BY THOSE WHO DELIGHT IN

JUMPING LAWYERS ARE:

IN UTOPIA THOMAS MORE SPECIFICALLY PROVIDED THAT THERE

WOULD BE NO LAWYERS,

GEORGE WASHINGTON'S WILL PROVIDED THAT

DISPUTES ARISING THEREUNDER WOULD BE RESOLVED BY THREE ARBITRATORS

"WHO WOULD NOT HEAR LAWYERS."

RHODE ISLAND WHILE A COLONY -

PROHIBITED LAWYERS FROM SERVING IN THIS LEGISLATURE.

-2-

THE

CONSTITUTION OF THE ILLINOIS GRANGE OF 1872 PROVIDED THAT ANYONE

COULD BE A MEMBER IN THE LLINOIS GRANGE EXCEPT ACTORS GAMBLERS

AND LAWYERS,

PROBABLY THE BEST PUBLICIZED CRITICISM OF OUR PROFESSION

IS FOUND IN CARL SANDBURG'S POEM WHEREIN HE SAID:

"--WHEN THE LAWYERS ARE THROUGH
WHAT IS THERE LEFT, BOB?
CAN A MOUSE NIBBLE AT IT
AND FIND ENOUGH TO FASTEN A TOOTH IN?

"WHY IS THERE ALWAYS A SECRET SINGING
WHEN A LAWYER CASHES IN?

"WHY DOES A HEARSE HORSE SNICKER
HAULING A LAWYER AWAY?"

HOW MUCH OF THE CRITICISM IS JUSTIFIED?

NO CANDID

PERSON COULD DENY THAT ON OCCASION CERTAIN INDIVIDUAL TRIAL LAWYERS

FAIL TO MEASURE UP TO RECOGNIZED PROFESSIONAL STANDARDS. IF

-3-

THIS WERE NOT THE FACT THE ORGANIZED BAR WOULD NOT SPEND MANY

THOUSANDS OF LAWYER HOURS EACH YEAR IN DISCIPLINARY PROGRAMS, IN

FACT HOWEVER DISCIPLINARY PROBLEMS ARE OCCASIONED BY A VERY SMALL

PERCENTAGE OF THE TOTAL TRIAL LAWYER POPULATION,

BUT WHEN REACTING TO CURRENT CRITICISM TRIAL LAWYERS -

SEVERALLY AND COLLECTIVELY MUST REMEMBER THAT IT WAS CHIEF JUSTICE

WARREN BURGER WHO LATELY SAID THAT ALMOST 50 PERCENT OF THE UNITED

STATES TRIAL BAR MAY NOT BE ABLE TO TRY A CASE COMPETENTLY.

FOR

HYPERBOLIC EFFECT THE CHIEF JUSTICE ON AN EARLIER OCCASION HAD

USED THE METAPHOR OF A "SWARM OF LOCUSTS" TO CHARACTERIZE THE

PROLIFERATION OF TRIAL LAWYERS LAW AND LITIGATION,

ALSO

CONCERNED WITH OVER-LAWYERING PRESIDENT JIMMY CARTER RECENTLY

CALLED UPON THE PROFESSION "TO MAKE THE ADVERSARY SYSTEM LESS

NECESSARY FOR THE DAILY LIVES OF MOST AMERICANS -- AND MORE EFFICIENT

WHEN IT MUST BE USED."

THE PRESIDENT ADDED MORE POINTEDLY: "BY

RESORTING TO LITIGATION AT THE DROP OF A HAT BY REGARDING THE

ADVERSARY SYSTEM AS AN END IN ITSELF WE HAVE MADE JUSTICE MORE

CUMBERSOME MORE EXPENSIVE AND LESS EQUAL THAN IT OUGHT TO BE."

THE CRITICISM TO WHICH I HAVE REFERRED BOTH ANCIENT AND

MODERN INDEED ANY SPECIFIC CRITICISM ABOUT ALL TRIAL LAWYERS -

IS NOT NECESSARILY CORRECT.

CERTAINLY MUCH OF IT IS NOT; JUST

AS MUCH CRITICISM OF POLITICIANS AND BUREAUCRATS IS NOT CORRECT,

BUT WE MUST LISTEN TO OUR CRITICS AND RESPOND SYMPATHETICALLY AND

CONSTRUCTIVELY TO THEIR CRITICISM AFTER WE HAVE REFLECTED UPON IT,

ILL-CONCEIVED EFFORTS TO DENY OR DEFLECT CRITICISM OFTEN SUCCEED

ONLY IN SUBSTANTIATING IT AND IN ERECTING BARRIERS TO NEEDED

-5-

ACCOMMODATIONS,

WHEN WE LOOK AT THE MORE REPRESENTATIVE SIDE OF THE

TRIAL BAR IT IS AN INDISPUTABLE FACT THAT NO PROFESSION APPROACHES

IN NUMBERS OR PERCENTAGE THE PARTICIPATION BY TRIAL LAWYERS IN

COMMUNITY AND GOVERNMENTAL AFFAIRS,

OUR STATE GOVERNMENTS ARE HIGHLY POPULATED WITH TRIAL

LAWYERS,

INDEED OVER ONE-HALF OF THE GOVERNORS WHO HAVE

SERVED IN THE LAST 100 YEARS IN THE VARIOUS STATES HAVE BEEN LAWYERS -

ALTHOUGH NOT ALL OF THEM HAVE BEEN TRIAL LAWYERS,

PROBABLY TO A GREATER EXTENT OUR FEDERAL GOVERNMENT IS

MANNED BY LAWYERS IN THE HIGHEST OFFICES AVAILABLE TO OUR CITIZENS,

TWENTY-FIVE OUT OF THE THIRTY-NINE PRESIDENTS OF THE UNITED STATES

HAVE BEEN LAWYERS,

SIXTY PERCENT OF THE UNITED STATES SENATE

-6-

AND CONGRESS ARE REGULARLY MADE UP OF LAWYERS,

CLEAR THAT THE LEGAL PROFESSION NEED NOT APOLOGIZE TO ANYONE

WHEN IT COMES TO PUBLIC SERVICE,

IN ADDITION TO THE PUBLIC SERVICE ASPECTS THERE IS

NOT ANOTHER PROFESSION WHERE THE FINEST OF ITS MEMBERS SPEND AS

MUCH TIME EDUCATING THEIR COMPETITION,

IN FLORIDA AS IN OTHER

STATES THE MOST PRODUCTIVE TRIAL LAWYERS ARE CONTINUALLY CALLED

UPON TO WRITE AND TO LECTURE IN CLE PROGRAMS,

THOSE TRIAL

LAWYERS SPEND VALUABLE HOURS THAT OTHERWISE WOULD BE CHARGEABLE

TO CLIENTS FOR THE BENEFIT OF OTHER TRIAL LAWYERS WHO SEEK TO

ENLARGE AND IMPROVE THEIR OWN LEGAL ABILITIES,

BUT PROFESSIONAL EXCELLENCE ALONE IS NOT ENOUGH FOR

THOSE TRIAL LAWYERS WHO POSSESS THE GOALS TO WHICH ALL LAWYERS

-7-

IT IS CRYSTAL

INVOLVEMENT IN BAR ACTIVITIES IMPROVEMENT IN

THE STRUCTURE OF THE LEGAL PROFESSION ENHANCEMENT OF JUDICIAL

ADMINISTRATION AND MODERNIZATION OF THE LAWS THAT GOVERN OUR

STATE AND COUNTRY ARE EQUALLY IMPORTANT.

ABOVE ALL TRIAL

LAWYERS MUST TAKE ALL POSSIBLE MEANS TO ESTABLISH A RECOGNITION IN

OUR CITIZENS THAT THE RULE OF LAW IS NOT SYNONOMOUS WITH THE STATUS

QUO,

A COMMITMENT BY CITIZENS TO OBEY LAW AND RESPECT ORDER

WILL COME ONLY WHEN OUR CITIZENS ARE CONVINCED THAT RESPONSIBLE

OFFICERS ARE DOING THEIR UTMOST TO REMOVE INEQUITIES AND INADEQUACIES

IN THE LAW,

TRIAL LAYWERS MUST DEVELOP AN UNRESTRICTED WILLINGNESS

TO BECOME INVOLVED IN THESE ENDEAVORS.

THAT IS THE CONSEQUENCE OF

OUR INDIVIDUAL ACCEPTANCE OF THE PRIVILEGE WHICH HAS BEEN GRANTED TO

US TO PRACTICE OUR CHOSEN PROFESSION- TO BE THE ADVOCATE FOR A HUMAN

SHOULD ASPIRE.

BEING IN A DISPUTE WITH OTHERS OR WITH GOVERNMENT,

LAST MAY DAY PRESIDENT CARTER-BEFORE THE LOS ANGELES

COUNTY BAR ASSOCIATION COMPLAINED:

..LAWYERS OF GREAT INFLUENCE AND PRESTIGE
LED THE FIGHT AGAINST CIVIL RIGHTS AND ECONOMIC
JUSTICE, THEY WERE PAID LAVISH FEES BY
THEIR STATES AND HEAPED WITH HONORS FOR THEIR
EFFORTS. THEY KNEW ALL THE MANEUVERS -
AND FOR TOO LONG THEY KEPT THE PROMISES OF THE
CONSTITUTION OF THE UNITED STATES FROM COMING
TRUE,

THE EXAMPLE OF COURSE WAS ILL CHOSEN FOR THE

PRESIDENT'S PURPOSE,

IN TRUTH IT WAS NOT THE EXECUTIVE NOR

THE LEGISLATIVE BRANCH OF OUR GOVERNMENT WHICH BROKE SEGREGATION -

BUT TRIAL LAWYERS WORKING IN THE ADVERSARY SYSTEM.

BUT MUCH MORE

PERNICIOUS THAN THE ILL CHOSEN EXAMPLE IS THE UNDERLYING PREMISE

THAT THE TRIAL LAWYER IS TO BE IDENTIFIED WITH THE CAUSE:

GUILT BY

-9-

REPRESENTATION.

NOT TOO LONG AGO IN THIS COUNTRY PERSONS DECRIED THE

USE OF THE PRINCIPLE OF "GUILT BY ASSOCIATION" TO PILLORY PEOPLE IN

THE PRESS.

AT LEAST "GUILT BY ASSOCIATION" HAS SOME JUSTIFICATION

IN HOMELY COMMON SENSE AS EVIDENCED BY THE TIME HONORED RUBRIC

"BIRDS OF A FEATHER FLOCK TOGETHER".

HAS NO SUCH JUSTIFICATION. IF THE

BUT "GUILT BY REPRESENTATION"

RE IS ONE THING FUNDAMENTAL TO

OUR SYSTEM IT IS RECOGNITION OF THE PRINCIPLE THAT NO MATTER HOW

UNPOPULAR THE CAUSE THAT CAUSE IS STILL ENTITLED TO FULL FAIR

LEGAL REPRESENTATION,

TO HOLD OTHERWISE MEANS THAT EACH TRIAL

LAWYER BEFORE ACCEPTING A CASE MUST ACT AS PHILOSOPHER/KING

TO JUDGE THE RECTITUDE OR THE POPULARITY OF THE CAUSE,

ON A LESS

LOFTY NOTE EACH TRIAL LAWYER MIGHT FIND IT PRUDENT TO ASK HIMSELF

-10-

OR HERSELF "WILL SOME POLITICIAN YEARS FROM NOW USE MY REPRESENTA-

TION OF THIS CAUSE AGAINST ME?"

IT IS NOT HARD TO SEE WHAT A CHILLING EFFECT THAT WILL

HAVE ON THE ABILITY OF THE UNPOPULAR CAUSE TO OBTAIN THE FULL -

FAIR LEGAL REPRESENTATION TO WHICH IT IS ENTITLED,

WHEN ONE

CONSIDERS THAT YESTERDAY'S RADICALISM IS OFTEN TOMORROW'S ORTHO-

DOXY ONE CAN APPRECIATE JUST HOW INIMICAL TO PROGRESS IT IS TO

IDENTIFY THE TRIAL LAWYER WITH THE CASE.

ON FIRST CONSIDERATION IT IS APPALLING THAT THE CHIEF

EXECUTIVE OF THIS COUNTRY WOULD NOT BE AWARE OF THIS,

BUT PERHAPS

IT IS NOT SO SURPRISING IN VIEW OF THE FACT THAT EVEN IN THE

LEGAL PROFESSION ITSELF THE SAME DOCTRINE IS ESPOUSED.

THERE

ARE ADVOCATES IN THIS COUNTRY WHO PROUDLY PROCLAIM THAT THEY WILL

-11-

NEVER REPRESENT A CAUSE WITH WHICH THEY DO NOT AGREE A SINGULARLY

ILLIBERAL POSITION,

WHY DO WE HAVE ADVOCATES?

WHAT DO THEY DO?

WHAT ARE ADVOCATES AND

THE DERIVATION OF THE WORD ADVOCATE IS FROM THE

LATIN -- ONE WHO SPEAKS TO AN ISSUE,

AN ADVOCATE IS TRAINED

IN LOGIC IN THE TECHNICAL RULES AND THE HISTORICAL PRECEDENTS,

AN ADVOCATE USES THOSE TOOLS TO LOOK OBJECTIVELY AT A SET OF FACTS

AND FAIRLY AND ETHICALLY TO ORGANIZE AND PRESENT THOSE FACTS IN A

MANNER WHICH WILL BEST REPRESENT A PARTICULAR POSITION,

IT IS

AN HONORABLE CALLING,

WHEN ADVOCATES ON EACH SIDE ACT THUS -

HISTORY HAS DEMONSTRATED THAT THE CHANCES ARE MAXIMIZED THAT ALL

THE PERTINENT CONSIDERATIONS WILL BE PRESENTED TO THE FACT FINDER,

PERHAPS BECAUSE OF A LACK OF UNDERSTANDING OF THE THEORY

-12-

OR OF FEAR THAT ONE ADVOCATE WOULD BE MORE CLEVER THAN THE OTHER

AND CAUSE THE "WRONG SIDE" TO WIN PEOPLE HAVE DISTRUSTED THE

METHOD AND THE SKILL INVOLVED.

BUT IN MANY IF NOT MOST INSTANCES -

THERE IS AN IMPORTANT ADVANTAGE FOR ONE WHO HAS A DISPUTE WITH A

FELLOW CITIZEN OR WITH THE GOVERNMENT IN NOT SPEAKING FOR ONESELF.

THE TRIAL LAWYER PERFORMS A VITAL FUNCTION IN VIEWING A CAUSE WITHOUT

THE PASSION OR EMOTION GENERATED BY THE PARTY'S IDENTIFICATION WITH

THAT CAUSE.

THE TRIAL LAWYER SHOULD AND MUST STRIVE TO INSULATE

THE LITIGATION FROM THE PASSIONS OF THE PARTIES.

FOR EVERY DIS-

REPUTABLE PRACTITIONER WHO PANDERS TO THE EMOTIONS OF HIS CLIENT -

THERE ARE THOUSANDS OF ETHICAL TRIAL LAWYERS WHO BRING ABOUT A

REASONABLE SOLUTION OF A DISPUTE.

THE ADVERSARY SYSTEM WARTS AND ALL HAS FUNCTIONED TO

-13-

BRING REFORMS BEYOND THE APPARENT CAPABILITIES OF THE EXECUTIVE OR

THE LEGISLATURE: SEGREGATION IS A CASE IN POINT,

NEITHER

HISTORY NOR PRESIDENT JIMMY CARTER HAS FOUND A BETTER ALTERNATIVE,

TO BORROW FROM ONE DEFINITION OF DEMOCRACY THE ADVERSARY SYSTEM IS

THE WORST POSSIBLE METHOD OF RESOLVING DISPUTES EXCEPT FOR ANY

OTHER EVER DEVISED,

IT WILL NOT LONG REMAIN SO IF PRESIDENT

JIMMY CARTER'S "QUILT BY REPRESENTATION" DOCTRINE IS NOT EXPOSED

BY TRIAL LAWYERS EVERYWHERE AS INIMICAL TO LIBERTY.

TO WIND UP THE SUBJECT OF TRIAL LAWYERS PERMIT ME TO

POINT OUT MY BELIEF THAT THE PUBLIC OF FLORIDA AND THE PUBLIC OF

THE UNITED STATES HAS THE UNFETTERED RIGHT TO DEMAND THAT THOSE

TRIAL LAWYERS WHO WERE GRANTED THE SEMI-MONOPOLY AS ADVOCATES TO

SERVE AS THE MAJOR BULWARK BETWEEN OUR CITIZENS AND THEIR GOVERNMENT

-14-

BE OF THE HIGHEST POSSIBLE PROFESSIONAL QUALITY AND WORTHY OF THAT

UNIQUE TRUST PLACED WHEN THE PROFESSION OF TRIAL LAWYER WAS DEVELOPED.

THE PROFESSIONAL STATUS AS A TRIAL LAWYER MUST BE A STAMP OF INTEGRITY

AND A SIGNAL TO THE PUBLIC THAT THOSE MEN AND WOMEN WHO PURSUE THIS

CALLING ARE PERSONS WHO ADHERE TO THE HIGHER PRINCIPLES TO THE

HIGHER STANDARDS,

LAWYER IS A BEAUTIFUL WORD WHEN THE PERSON TO WHOM IT

IS APPLIED ACTS IN A BEAUTIFUL MANNER,

I VERY MUCH WANT ALL AMERICANS TO KNOW THAT TRIAL LAWYERS

ARE UNIQUE IN THEIR OBLIGATION AND DEDICATION TO PUBLIC SERVICE AND

TO THEIR NOBLE CALLING.

I VERY MUCH WANT ALL AMERICANS TO ACCEPT

THAT TO BE A "TRIAL LAWYER" IS TO BE "HONORABLE",

(END)

-15-

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 206

VOLUME XV

REMARKS OF:

CHESTERFIELD SMITH
LAWYER
TAMPA, FLORIDA

BEFORE:

MID-WINTER MEETING OF
YOUNG LAWYER'S SECTION OF
AMERICAN BAR ASSOCIATION

PLACE:

HYATT REGENCY HOTEL
ATLANTA, GEORGIA

DATE:

SATURDAY, FEBRUARY 10, 1979
12:00 NOON

IMPERIAL JUDICIARY OR IS
IT A DEFAULTING EXECUTIVE
OR LEGISLATURE?

TITLE:

TIME:

FIFTEEN MINUTES

,'b i .
-" ,,-. 1

PRESIDENT JIMMY CARTER RECENTLY CALLED UPON THE

LEGAL PROFESSION TO "MAKE THE ADVERSARY SYSTEM LESS

NECESSARY FOR THE DAILY LIVES OF MOST AMERICANS -- AND

MORE EFFICIENT WHEN IT MUST BE USED."

ADDED MORE POINTEDLY:

THE PRESIDENT

"BY RESORTING TO LITIGATION AT

THE DROP OF A HAT BY REGARDING THE ADVERSARY SYSTEM AS

AN END IN ITSELF WE HAVE MADE JUSTICE MORE CUMBERSOME -

MORE EXPENSIVE AND LESS EQUAL THAN IT OUGHT TO BE."

TO AN EXTENT THAT CRITICISM OF THE EVER-

EXPANDING ROLE THAT THE JUDICIAL SYSTEM PLAYS IN AMERICAN

SOCIETY IS PERHAPS MERITED,

MANY COMPLAIN REPEATEDLY

THAT THE COURTS HAVE ARROGATED TO THEMSELVES MATTERS

-1-

BEYOND THEIR COMPETENCE SATISFACTORILY TO HANDLE IN

OTHER WORDS THAT THE COURTS BY THEIR OWN MANDATE HAVE

GROWN TOO BIG FOR THEIR SYSTEMIC BRITCHES.

THEY ASSERT

THAT MANY JUDGES BOTH STATE AND FEDERAL VIEW THEMSELVES

AS SOCIETY'S WILD CARD THE ULTIMATE PROBLEM SOLVER WHO

MUST ALWAYS ACT WHEN OTHER GOVERNMENT INSTITUTIONS DO NOT.

WHILE I PERSONALLY DO NOT AGREE WITH THAT CRITICISM -

CERTAINLY IT IS TRUE THAT SOME JUDGES IN RECENT YEARS HAVE

BEEN ROVING ALL OVER THE LOT.

IN BAR ROOM DISCUSSION GROUPS NON-LAWYER

CITIZENS GRIPE THAT THE COURTS OF TODAY ARE WITHOUT

PORTFOLIO OR AUTHORITY ATTEMPTING OFTEN UNSUCCESSFULLY -

TO RUN SCHOOLS AND PRISON SYSTEMS AND TO REGULATE ALMOST

-2-

EVERYTHING THAT THEY KNOW LITTLE ABOUT.

THAT LAY VERSION OF WHAT COURTS ARE DOING CONCEALS MORE

THAN IT REVEALS.

IN VIRTUALLY ALL OF THE CASES IN

WHICH JUDGES HAVE ENTERED REMEDIAL AREAS THAT MORE

PROPERLY AND MORE EFFECTIVELY SHOULD BE DEALT WITH BY

THE OTHER BRANCHES OF GOVERNMENT THE COURTS HAVE DONE

SO BY REASON OF THE DEFAULT OF THE LEGISLATIVE AND

EXECUTIVE BRANCHES OF OUR GOVERNMENT.

INDEED, THE

COURTS BY THE OVERWHELMING CHOICE OF THE PEOPLE SEEMINGLY

HAVE BECOME THE FORUM FOR REDRESS OF ALL THINGS UNFAIR IN

LIFE,

YET SOLVING THE PROBLEM OF WHAT A JUDGE SHOULD

DO WHEN THOSE PROBLEMS IGNORED BY OTHERS COME INTO THE

-3-

BUT OF COURSE

COURTS PROBABLY IS THE MOST DIFFICULT SINGLE TASK FACED

BY THOSE WHO WISH TO INSURE THE CONTINUING VIABILITY OF

COURTS AS A GOVERNMENTAL INSTITUTION,

JUDGES GET INVOLVED IN DECREEING DRASTIC

REMEDIES AGAINST THE GOVERNMENT IN TOUGH AREAS BECAUSE

IT IS THEIR PRIME RESPONSIBILITY TO SEE THAT JUSTICE IS

DONE.

GENERALLY THE JUDGE BEGINS BY ONLY HOLDING WHAT

THE GOVERNMENT CANNOT DO -- IT DOES NOT POINT OUT WHAT

IT CAN DO.

SOMETIMES THAT IS ENOUGH,

BUT MORE

OFTEN THE GOVERNMENT THEN DOES NOTHING AND THE ONLY

JUDICIAL ALTERNATIVE IS FOR A COURT DECREED RESOLUTIONS.

THE ANSWER TO SUCH JUDICIAL ACTIVISM MOST CERTAINLY IS NOT TO

CLOSE THE COURTHOUSE DOOR.

INSTITUTIONS DO RIGHT.

IT IS TO MAKE OTHER GOVERNMENTAL

-4-

THE TRUTH IS THAT IN THE MAIN THE COURTS HAVE

PERFORMED WELL PERHAPS TOO WELL.

I PERSONALLY

BELIEVE THAT THE MOST SUCCESSFUL GOVERNMENT INSTITUTION

OF ALL TIMES HAS BEEN THE SUPREME COURT OF THE UNITED

STATES.

OUR BLINDFOLDED FIGURE HOLDING THE SCALES OF

JUSTICE HAS BEEN WORLDWIDE BOTH A SYMBOL AND A REALITY.

THE COURTS HAVE ACHIEVED SUCCESS WHERE THE OTHER

INSTITUTIONS HAVE NOT SUCCESS AS SEEN BY THE NEGLECTED

AND IGNORED AS BEING A MEANINGFUL VEHICLE FOR ACHIEVING

DESIRABLE SOCIAL CHANGE,

THAT VERY SUCCESS HAS CREATED THIS PROBLEM:

AS RELIANCE UPON THE COURTS HAS INCREASED THERE HAS BEEN

A CONCOMMITANT DECREASE IN THE INSTITUTIONAL POWER OF THE

EXECUTIVE AND LEGISLATIVE BRANCHES OF GOVERNMENT,

-5-

DEMOCRATIC INSTITUTIONS TODAY SIMPLY ARE

NEITHER AS DEMOCRATIC NOR EFFECTIVE AS THEY ONCE WERE,

BOTH THE EXECUTIVE AND LEGISLATIVE BRANCHES HAVE BECOME

INCAPABLE OF RESOLVING TOUGHER QUESTIONS OF PUBLIC POLICY.

GOVERNMENTAL CAREER EMPLOYEES WHO ACTUALLY SET MOST

OFFICIAL ACTION ARE USUALLY AS INSULATED FROM POPULAR

ACCOUNTABILITY AS JUDGES AND LEGISLATURES EVEN TODAY ARE

NOTORIOUSLY SWAYED BY SPECIAL INTEREST GROUPS,

WHEN

A POLICY DECISION IS NOT DIRECTED BY A CITIZENS CONSENSUS -

IT APPEARS THAT ALL GOVERNMENT EXCEPT THE COURTS DEFAULT -

AND RESPONSIBLE JUDGES MUST ACT.

THAT DEFAULT BY OTHER BRANCHES OF GOVERNMENT IN

MY ESTIMATION HAS HURT THE JUDICIAL SYSTEM IN TWO WAYS:

QUANTITATIVELY THE COURTS ARE CARRYING TOO HEAVY A

BURDEN -- AND PROBABLY A BURDEN BEYOND THE CAPACITY OF

MITIGATION BY MERELY INCREASING THE NUMBER OF JUDGES -- AND

QUALITATIVELY THE COURTS ARE BEING ASKED TO SOLVE

PROBLEMS FOR WHICH THEY ARE NOT INSTITUTIONALLY EQUIPPED

-- OR AT LEAST NOT AS WELL EQUIPPED AS OTHER AREAS OF

GOVERNMENT.

IF THE JUDICIAL SYSTEM IS TO FUNCTION AS IT WAS

DESIGNED A REWORDING OF OUR OWN CONCEPTION OF THE

JUDICIAL SYSTEM IS NOW TIMELY.

LAWYERS SHOULD

RECOGNIZE THAT JUSTICE NEED NOT NECESSARILY EMANATE

PRIMARILY FROM THE COURTS,

LAWYERS MORE THAN OTHERS

HAVE AN OBLIGATION TO LOOK ELSEWHERE THAN THE COURTS TO

SECURE CONFLICT RESOLUTION.

LAWYERS MUST CONVINCE

-7-

THEIR CLIENTS THAT OTHER FORUMS ARE APPROPRIATE ARENAS

FOR SEEKING REDRESS,

THE AMERICAN PUBLIC TODAY

PERCEIVES THE COURTS AS JACKS-OF-ALL-TRADES AVAILABLE

TO FURNISH THE ANSWER TO WHATEVER MAY TROUBLE US:

SHALL WE PROSECUTE A WAR OR MAKE PEACE?

WHAT IS

LIFE OR WHEN DOES DEATH BEGIN?

SHALL WE ACHIEVE

RACIAL INTEGRATION BY CUMBERSOME BUSING OF CHILDREN TO

FAR-AWAY SCHOOLS? HOW SHOULD WE OPERATE PRISONS AND

MENTAL INSTITUTIONS? SHALL WE BUILD NUCLEAR POWER

PLANTS AND IF SO WHERE? SHALL THE CONCORDE FLY TO

OUR SHORE? IS AFFIRMATIVE ACTION REALLY INVERSE

DISCRIMINATION? SHALL THE SNAIL DARTER SURVIVE?

ALL THESE QUESTIONS ARE NOW CONTINUOUS GRIST OF THE

SHOULD THEY BE?

JUDICIAL MILLS,

A LAWSUIT IS PROBABLY QUICKER AND CHEAPER THAN

LOBBYING OR A REFERENDUM AND MORE AUTHORITATIVE THAN A

PUBLIC OPINION POLL. BUT WHAT DOES THE RENDERING OF

A LEGAL DECISION ACCOMPLISH? IT IS SIMPLY A JUDICIAL

PRONOUNCEMENT AND NOTHING MORE, IT DOES NOT SETTLE

THE DIVISIVE MORAL ETHICAL AND POLITICAL QUESTIONS THAT

LIE THEREUNDER,

IT SIMPLY IS NOT AN EXPRESSION OF THE

POPULAR WILL NOR THE PUBLIC WEAL,

I BELIEVE THAT IF

THIS DEFAULT BY OTHERS CONTINUES TO MANDATE THIS SHIFT TO

ONE AUTHORITY THE LIVING LAW THE RESPONSIBLE COURTS -

IT ULTIMATELY WILL SEVERELY IMPAIR OR DESTROY THE BALANCE

BETWEEN THE VARIOUS BRANCHES OF GOVERNMENT SET FORTH IN

IF THAT IS SO AS I BELIEVE -

OUR NOBLE CONSTITUTION.

THEN THE PRINCIPAL TASK FACING THOSE OF US WHO WORK IN

THE LAW IS THE RESTORATION OF PROPER BALANCE.

PERHAPS OUR EFFORTS TO RESTORE THAT BALANCE

SHOULD START WITH A RECOGNITION AT LEAST BY THE LAWYERS

AND JUDGES OF THE PRESENTLY UNPOPULAR VIEW THAT OUR

COURTS REALLY SHOULD BE ONLY INSTITUTIONS OF LAST RESORT.

COURTS SHOULD NEVER BE CONSIDERED TO BE THE FIRST STOP IN

CORRECTING SOCIAL INJUSTICE EVEN THOUGH MANY MODERN

LITIGANTS AND THEIR LAWYERS STEER TO THAT COURSE.

THE

JUDGES THEMSELVES ARE NOT WITHOUT BLAME,

RARELY NOW DO

WE SEE OUR COURTS GOING ALL OUT TO CONFINE THE IMPACT OF

A CONSTITUTIONAL OR STATUTORY DECISION ONLY TO THE CASE

AT HAND,

JUDGES FACED WITH AN UNCONSTITUTIONAL LAW

RARELY SEEM CONTENT WITH SIMPLY DECLARING IT TO BE SO --

-10-

	Table of Contents
	"What is a lawyer? What is his...
	Remarks by Chesterfield Smith before...
	Remarks by Chesterfield Smith before...
	"What is an advocate? What is his...
	Remarks of Chesterfield smith before...
	"Credibility in the legal...
	Imperial judiciary - Or is it a...
	Notes for remarks before Polk County...
	Notes for remarks before Florida...

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