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 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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Speeches by Chesterfield - Vol. XV, 202-210. 1978-1979
CITATION THUMBNAILS PDF VIEWER PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/AA00006003/00001
Finding Guide: A Guide to the Chesterfield Smith Papers
 Material Information
Title: Speeches by Chesterfield - Vol. XV, 202-210. 1978-1979
Series Title: Speeches, 1956-2003
Physical Description: Unknown
Language: English
Creator: Smith, Chesterfield H., 1917-2003
Publication Date: 1978-1979
Physical Location:
Box: 133
Folder: Speeches by Chesterfield - Vol. XV, 202-206. 1978-1979
 Record Information
Source Institution: University of Florida
Rights Management: All rights reserved by the source institution and holding location.
Resource Identifier: sobekcm - AA00006003_00001
System ID: AA00006003:00001

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Table of Contents
    Table of Contents
        Table of Contents 1
        Table of Contents 2
    "What is a lawyer? What is his future?"
        Page 202-i
        Page 202-ii
        Page 202-1
        Page 202-2
        Page 202-3
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        Page 202-15
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        Page 202-17
    Remarks by Chesterfield Smith before Wake Forest law school
        Page 203-i
        Page 203-ii
        Page 203-1
        Page 203-2
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        Page 203-4
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    Remarks by Chesterfield Smith before Conference of Investments in Brazil
        Page 204-i
        Page 204-ii
        Page 204-1
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    "What is an advocate? What is his coloration?"
        Page 205-i
        Page 205-ii
        Page 205-1
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        Page 205-15
    Remarks of Chesterfield smith before mid-winter meeting of young lawyer's section of American Bar Association
        Page 206-i
        Page 206-ii
        Page 206-1
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        Page 206-15
        Page 206-16
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        Page 206-18
    "Credibility in the legal profession"
        Page 207-i
        Page 207-ii
        Page 207-1
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        Page 207-3
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    Imperial judiciary - Or is it a defaulting executive or legislature?
        Page 208-i
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    Notes for remarks before Polk County Historical association
        Page 209-i
        Page 209-ii
        Page 209-1
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    Notes for remarks before Florida Women's Network
        Page 210-i
        Page 210-ii
        Page 210-1
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Full Text






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


-2-


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.


-5-


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
-11-








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


-13-








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


-14-


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


-16-










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)


-17-








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


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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


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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


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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


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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


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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


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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)


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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


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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


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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


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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


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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


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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 --


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