Speeches by Chesterfield - Vol. XIX, 268-282. 1986-1987

VOLUME XIX

#268 RANDOM CURRENT THOUGHTS OF A TRIAL
LAWYER ABOUT LIBERTY AND JUSTICE
FOR ALL
(A longer version of article for
The Miami Herald printed on Sunday,
April 27, 1986). On ATMS.

#269 STATEMENT OF CHESTERFIELD SMITH
BEFORE: PRESS CONFERENCE HELD BY
THE LAWYERS ALLIANCE FOR
NUCLEAR ARMS CONTROL
SUBJECT: "Why Lawyers Alliance for
Nuclear Arms Control, Inc.
DATE: Monday, July 21, 1986

#270 THE ROLE OF AN INDEPENDENT JUDICIARY
IN A DEMOCRATIC SOCIETY
BEFORE: INDIANA CIVIL LIBERTIES UNION
Indianapolis, Indiana
DATE: SATURDAY, NOVEMBER 1, 1986

#271 HOW LAW FIRMS (AND SPECIFICALLY HOLLAND
& KNIGHT) WILL BE PRACTICING IN THE
YEAR 2000
BEFORE: SENIOR LAWYERS DIVISION OF
AMERICAN BAR ASSOCIATION
Tampa, Florida
DATE: FRIDAY, NOVEMBER 14, 1986

#272 HOW LAW FIRMS (AND SPECIFICALLY HOLLAND
& KNIGHT) WILL BE PRACTICING IN THE
YEAR 2000
BEFORE: HOMECOMING BREAKFAST, UNIVERSITY
OF MIAMI, MIAMI, FLORIDA
DATE: SATURDAY, NOVEMBER 15, 1986

#273 AN INDEPENDENT FEDERAL JUDICIARY AND
CIVIL LIBERTIES AND INDIVIDUAL FREEDOMS
BEFORE: ORANGE COUNTY BAR ASSOCIATION
Orlando, Florida
DATE: Thursday, January 15, 1987

VOLUME XIX

#274 INVESTITURE OF THE HONORABLE
STEPHEN H. GRIMES, JUSTICE OF THE
SUPREME COURT OF FLORIDA
DATE: FRIDAY, JANUARY 30, 1987

#275 HOW HOLLAND & KNIGHT MAY BE
PRACTICING LAW IN THE YEAR 2000
BEFORE: LAKELAND BAR ASSOCIATION
(CS sick, delivered by
Bill Henry)
DATE: WEDNESDAY, APRIL 1, 1987

#276 AN INDEPENDENT FEDERAL JUDICIARY
AND CIVIL LIBERTIES AND FREEDOMS
BEFORE: DADE COUNTY BAR ASSOCIATION
DATE: FRIDAY, MAY 1, 1987

#277 1987 GRADUATING CLASS
ST. THOMAS UNIVERSITY SCHOOL OF LAW
MIAMI, FLORIDA
DATE: SUNDAY, MAY 24, 1987

#278 AN INDEPENDENT FEDERAL JUDICIARY -
CONSTITUTIONAL AMENDMENTS AND
THEIR COMBINED IMPACT ON
GOVERNMENTAL STABILITY AND
INDIVIDUAL PROTECTION
BEFORE: DEMOCRATIC PARTY OF
LAKE COUNTY
DATE: MONDAY, JULY 27, 1987

#279 AN INDEPENDENT FEDERAL JUDICIARY -
TIME CONSUMING CONSTITUTIONAL
AMENDMENTS AND THEIR COMBINED IMPACT
ON THE PROTECTION OF INDIVIDUAL
RIGHTS IN THE UNITED STATES OF
AMERICA
BEFORE: STETSON COLLEGE OF LAW
INNS OF COURT
DATE: THURSDAY, OCTOBER 1, 1987

VOLUME XIX

#280

AN INDEPENDENT FEDERAL JUDICIARY -
TIME CONSUMING CONSTITUTIONAL
AMENDMENTS AND THEIR COMBINED
IMPACT ON THE PROTECTION OF
INDIVIDUAL RIGHTS IN THE UNITED
STATES OF AMERICA
BEFORE: PEMBROKE PINES/BROWARD COMMUNITY
COLLEGE CONSTITUTIONAL
BICENTENNIAL COMMITTEE
DATE: WEDNESDAY, OCTOBER 7, 1987

MATERIAL ADAPTED FROM REMARKS MADE
AT THE FORUM ON THE CONSTITUTION AT
MANATEE COMMUNITY COLLEGE, VENICE,
FLORIDA ON OCTOBER 28, 1987, ENTITLED
"AN INDEPENDENT FEDERAL JUDICIARY,
DIFFICULT CONSTITUTIONAL AMENDMENT, AND
THEIR COMBINED IMPACT ON INDIVIDUAL
RIGHTS"

AN INDEPENDENT FEDERAL JUDICIARY -
TIME CONSUMING CONSTITUTIONAL
AMENDMENTS. AND THEIR COMBINED
IMPACT ON THE PROTECTION OF
INDIVIDUAL RIGHTS IN THE UNITED STATES
OF AMERICA
BEFORE: FLORIDA SOUTHERN COLLEGE
DATE: WEDNESDAY, NOVEMBER 11, 1987

#281

#282

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 268

VOLUME XIX

-1h

Dated: May 1, 1986

RANDOM CURRENT THOUGHTS OF A TRIAL
LAWYER ABOUT LIBERTY AND JUSTICE FOR ALL

Throughout history, Americans have believed that liberty,

justice, and fairness through law can be guaranteed to all

people. Indeed, faith in the rule of law has developed since the

end of the great depression to such a point that Americans en

masse have placed less and less reliance upon standards of value

above the law, a direction which has proven to be devastating for

society. Encouragingly, many thoughtful people today are becom-

ing increasingly dubious that there ever can be a final resolu-

tion of day-to-day problems through law alone, and thus to yearn

for a differing quality of societal rules.

Properly to analyze those doubts and that desire, the impor-

tance of two prime traditional values must be recognized

simultaneously, values which may seem incompatible: First -

freedom from over-control by others, the individual privacy to do

one's own thing whatever that is, alone or in small autonomous

units, and second order which can come only from large-scale

unity and coordination, the societal orderliness which alone per-

mits efficiencies and prevents anarchy. The duality of those two

human values always must be accommodated when existing proscrip-

tions are modified in an attempt to re-order public and private

purposes. Even so, those who fix human value standards find it

most difficult when doing so to reconcile properly the disparate

aims of individual privacy and societal orderliness.

The original question between too much and too little in law-

making is to discriminate, to get things sorted out. For every

law there is a certain appropriate scale. Individual privacy

begets little law and small legal solutions, and societal or-

derliness begets big law and massive legal solutions. Yet, in

reality those two competing values are not incompatible and any

re-ordered legal priorities must adjust them.

Since World War II, the American people often have been ex-

posed to public fussing, feuding and acrimony. When the American

Constitution was written, it assumed standards of harmonious

behavior by its citizens, based upon historically accepted

tenents. The founders believed that a nation predicated upon the

insights of great philosophers and pundits could succeed, leading

to our then unique system in which a check and balance division

of the theretofore absolute powers of the single law-giver for

the first time put governmental institutions into healthy

confrontation.

It never was contemplated then that laws would cover all

situations, solve all problems or resolve all disputes. The

founders assumed that there would be general respect, although

not always agreement, by the majority of the people for the bene-

fit of each societal division. It has not always worked out that

way and the ever-increasing public tendency from majority and

minority viewpoints is to mistrust, to dispute and disrupt.

A reaffirmation of an old-fashioned understanding whereby all

elements of our community treat each other with courtesy and

respect, at least more than now, is obviously desirable. The es-

sence of any such understanding has to be a measure of voluntary

-2-

restraint, an unspoken understanding that each portion of our

people will apply their full understanding to the needs and

rights of others. One majority position or doctrine must not

dominate. A situation where one entity attempts to dominate does

more than encourage unseemly conflict, it demands it.

After almost two hundred years of national experience each

fragment of our nation should now understand the indubitable con-

tribution of multiple others to societal orderliness and individ-

ual privacy, and each should work to insure that continued con-

tribution by those others. No establishment, private or public,

is qualified to serve as the prime keeper of the conscience of

all humankind. Understanding of the role of others is the only

productive route to the harmonization of individual privacy and

societal orderliness which is the key to an effective and con-

gruous relationship.

Americans now routinely ask the law (and thus our government)

to determine right from wrong, the ethical from the unethical,

and the moral from the immoral, an activity which has proven out

to be personally self-debilitating because it innately absolves

individuals from all conduct beyond that required by law. A lau-

dable desire for ever-greater societal orderliness has driven the

nation to more and bigger laws. Individual privacy, freedom of

enterprise, freedom of life style, the right to engage in such

activities in differing yet individual choices, has accordingly

suffered.

During my own lifetime, this ever-enhancing reliance on the

law has led to a shift in the responsibility for developing the

mores of this nation's social structure. Purposeful goals of

-3-

personal attitude and rectitude beyond the minimum set by law

receive little current popular support. To accept the law as a

floor forgives individuals for all behavior which is not pro-

hibited by law, and as a necessary corollary permits them to use

those minimum legal standards to advance their own purposes.

Why has America at this stage seemingly shifted emphasis from

that which is right to that which is legal? Has the development

of a strong legal profession in this country, unparalleled

throughout history in numbers, independence, affluence and

influence, contributed to this lamentable trend. It does appear

that being right from a legal point of view means to many lawyers

that nothing more is required. I surmise that few tell their

corporate clients that meeting minimum legal requirements might

still not make one entirely right, and then urge self-restraint

or counsel repudiation by the client of the right so to act.

Individual legal victories vindicating that which meets minimum

legal demands, but not necessarily that which is right in the

context of the larger society, whether won in the courtroom or in

the legislature, can sometimes be ultimately as disastrous to a

lawyer's clients as winning a battle but losing the war is to a

dictator.

What are the choices for mitigating this trend? Is law in

its present overwhelming dimensions to be curtailed? Shall we

simply decide that henceforth only moralistic standards will be

utilized to achieve the better life? Of course not neither are

acceptable solutions. The only effective response is for indiv-

idual Americans to take steps to demonstrate that they themselves

are capable of individual self-discipline which is consistent

-4-

with the realities of both the desired privacy of the individual

and the societal orderliness which is essential to the public

interest.

Of course there are larger risks in a legalistic approach

than the inconvenient and vexing imposition of further governmen-

tal restrictions on individual privacy. The law cannot and

should not provide a response to all social or economic problems.

Surely lawyers best know that the law more often lags than leads.

Implemented through the political system, the proper role of law

is to articulate pre-established norms of a society. The absence

of an objective moral order inevitably will lead to a legalistic

system in which each person always seeks to use that system in a

way to secure the most personal advantage.

It is unrealistic to ignore the fact that to date individual

performance under existing law can be improved, and I do not ig-

nore it. Not all Americans currently are discharging properly

their acknowledged responsibilities. Additional efforts to ob-

tain individual adherence to the rule of law clearly is

warranted. But an enhanced legalistic approach even if accepted

does not assure the permanent solution which can be obtained only

if people respond substantively.

Regrettably, the question most asked today is: Is it legal?

- Not: Is it right? To permit pre-emptive law alone thus to es-

tablish the entire moral criteria of human beings can only result

in a total atrophy of societal responsibility, and perhaps it

almost has. As events throughout the world show, a legalistic

society which ignores all values other than law is a society in

which ultimately both societal orderliness and individual privacy

-5-

wither away and disappear. Indeed, history has repeatedly demon-

strated that no state can long survive if its people assume that

conduct not forbidden by law is acceptable conduct. Law should

set minimum standards, but not the loftier goals. It can be the

bottom, but it must not be the ceiling.

If the present legal structure does not provide the philoso-

phy needed, where can it be found? The answer lies beyond the

law. A sense of responsibility, of values transcending those ar-

ticulated by the law, should be applied to decision making.

Lawyers and their clients always must consider the essential role

of ethics and morality. Lawyers should aspire for higher stan-

dards than the minimum from those they counsel. The true rule of

law envisions internal checks as a necessary complement to exter-

nal restrictions. Only the combination of an internalized value

system and external constraints can assure that individuals and

their created institutions act responsibly and that the oppos-

ing two values, individual privacy and societal orderliness, are

accommodated and harmonized. The dominant question for

tomorrow's lawyers and their clients, must be: Is it right?

Not: Is it legal?

Chesterfield Smith

Lawyer, Holland & Knight

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 269

VOLUME XIX

STATEMENT OF:

CHESTERFIELD SMITH
LAWYER
MIAMI, FLORIDA

BEFORE:

PRESS CONFERENCE HELD BY THE
LAWYERS ALLIANCE FOR
NUCLEAR ARMS CONTROL

DATE:

MONDAY, JULY 21, 1986
1:00 P.M.

SUBJECT:

WHY LAWYERS ALLIANCE FOR
NUCLEAR ARMS CONTROL, INC.

It long has been my opinion, personally and professionally,

that lawyers collectively, through bar associations as well as

individually, have a responsibility to society, greater in degree

than most citizens, to contribute to the well-functioning of our

governmental process. That obligation requires attorneys to

utilize their specialized legal skills as counselors, advocates

and negotiators to improve the lot of society in general.

Lawyers owe that responsibility to society in exchange for the

semi-monopoly right given to them by law, an act which in itself

chills development of such skills in others.

One good way in which lawyers can fulfill this obligation to

use those specialized talents to better society is through effort

and concern for nuclear arms control. It is now appropriate that

bar associations and individual lawyers no longer remain qui-

escent on nuclear destruction. Lawyers must support the strate-

gic arms reduction talks as proposed by the government of the

United States. But lawyers can do much more than passively react

to government proposals. Indubitably, lawyers' efforts had a

positive impact in bringing the Vietnam War to an end -- and they

can help in nuclear arms control.

Lawyers have long been mesmerized by the intractability of

this immense problem. Yet at the same time, this nuclear threat

poses special perils to the preservation of our social -- ethical

-- and legal fabric -- and even survival as a body politic under

the Constitution.

Specifically, lawyers can help:

1. separate fact from fiction;

2. distinguish the relevant from the irrelevant;

3. negotiate peaceful resolutions of conflicting
ideas.

As a prime guardian of American society's code of conduct,

there is to lawyers no challenge more demanding, no opportunity

more significant, than to bend their collective efforts to that

task. Lawyers' abilities at negotiation, conflict resolution,

logical analysis, and persuasion will be invaluable to the

effort.

For example, a simple statement at this time that the first

use of nuclear weapons in war is illegal could be a measured

first step to achieving the goal through law. It is a step which

could be taken without delay. Even if the Soviets or other gov-

ernments are initially unwilling to take that beginning step (and

there are hopeful signs) -- lawyers in America still must try to

do something themselves. If enough lawyers in enough countries

express their feelings on the issue -- governments in time may

finally become convinced that the existing status quo simply can-

not be allowed to continue. There are limitations to what the

world will tolerate. At some point -- all governments will

listen to the opinion of lawyers if it is strong and vigorous

enough.

The very nature of a free society causes it to advance in its

standards what is deemed reasonable and right. War, particularly

nuclear war, cannot longer be deemed reasonable and right. Not

for the United States. Not for the Soviet Union. Not for all

people. International law should promptly proscribe use of nu-

-3-

clear weapons. Once that is done, there will be realistic hope

that their manufacture and deployment will in time through the

law's normal evolution also be outlawed.

In essence, the legal argument is that nuclear weaponry

places a duty upon those who wield both formal authority and ef-

fective control to ensure that multilateral action is taken to

stop production of and to destroy existing nuclear arsenals, that

government policymakers have a clear and present legal duty to

initiate and carry through negotiations with other nuclear powers

to make nuclear war illegal under international law.

Surely those who drafted the American Constitution did not

intend that government officers have the power on their own

discretion to make life itself extinct. They wrote a document

designed to endure for all ages to come and consequently to be

adapted to the various crises of human affairs. The

Constitution's purpose is set forth in the Preamble:

"To form a more perfect union, establish
justice, ensure domestic tranquility, provide
for the common defense, promote the general
welfare, and secure the blessings of liberty
to ourselves and our posterity."

Nuclear weapons, and the delicate existing balance of terror,

jeopardize each of those goals -- and nuclear war would eradicate

them. Of course, the Constitutional Preamble has never been

given substantive content; but perhaps the time has come to do so

- in the courts and in all other forums where laws are shaped or

made. At least the effort should be made.

Admittedly, the present nuclear balanced deterrence is unsa-

tisfactory except by contrast with the alternative. But the nu-

clear weapons that create the threat of total destruction cannot

be uninvented. It is a dangerous and possibly fatal illusion for

lawyers to believe that further arms racing can be in the in-

terest of any country, including our own. That way lies only

confrontation and the danger of Armageddon. Lawyers should do

their part to help through law avert that tragedy. That, my

friends, is my answer to "why lawyers", and my explanation of why

there is the "Lawyers' Alliance for Nuclear Arms Control, Inc."

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 270

VOLUME XIX

REMARKS OF:

BEFORE:

CHESTERFIELD SMITH

LAWYER

HOLLAND & KNIGHT

MIAMI, FLORIDA

INDIANA CIVIL LIBERTIES UNION

THE ROLE OF AN INDEPENDENT JUDICIARY

IN A DEMOCRATIC SOCIETY

HYATT REGENCY HOTEL

INDIANAPOLIS, INDIANA

SATURDAY, NOVEMBER 1, 1986

6:30 P.M.

TITLE:

PLACE:

DATE:

TWENTY-FIVE MINUTES

LENGTH:

AMERICANS LONG HAVE REALIZED THAT AN ABSOLUTELY

INDEPENDENT FEDERAL JUDICIARY IS ESSENTIAL TO THE PRESERVATION OF

BOTH OUR REPUBLICAN FORM OF GOVERNMENT AND OUR CHERISHED

INDIVIDUAL RIGHTS. THAT JUDICIAL INDEPENDENCE IS IN A

SIGNIFICANT WAY BUTTRESSED ON THE CONTINUED DEVOTION OF OUR

PEOPLE TO EACH CONCEPT. UNDER OUR CONSTITUTIONAL SYSTEM THE

SIMPLE TRUTH IS THAT THE FUNDAMENTAL CHECK TO FEDERAL

GOVERNMENTAL POWER AND ITS POTENTIAL ABUSE HAS BEEN IS -

AND WILL BE THE FEDERAL COURTS. THE INDEPENDENCE OF THE FEDERAL

JUDICIARY FROM INTERVENTION BY OTHER GOVERNMENTAL BRANCHES IS

THUS A BASIC TENENT OF UNITED STATES DEMOCRACY. INDEED TIMES

MARKED BY POLITICAL DISSENT AND TIMES OF GOVERNMENT REPRESSION

ARE THE TURBULENT PERIODS WHEN AN INDEPENDENT FEDERAL JUDICIARY

CONSTRUING THE BILL OF RIGHTS HISTORICALLY HAS PROVEN A PRIME

CHECK ON POTENTIAL GOVERNMENTAL MISCONDUCT.

WHERE A JUDICIARY IS NOT STRUCTURALLY AND IN FACT -

INDEPENDENT FROM OTHER BRANCHES OF GOVERNMENT OR WHERE ITS

INDEPENDENCE IS NOT FORMALLY RESPECTED BY THE CITIZENRY OR

-2-

WHERE LITIGANTS BEFORE IT ARE INTIMIDATED OR PERSECUTED FOR

MERELY ATTEMPTING TO SECURE THEIR RIGHTS AND FREEDOMS THERE ARE

NO EFFECTIVE DEFENSES IN THAT JUDICIAL SYSTEM AGAINST OR

REMEDIES FOR INDIVIDUAL PROTECTION FROM GOVERNMENTAL

VIOLATIONS.

THE CONSTITUTION PROVIDES THAT FEDERAL JUDGES HOLD THEIR

OFFICES DURING GOOD BEHAVIOUR AND RECEIVE A COMPENSATION WHICH

CANNOT BE DIMINISHED DURING THEIR JUDICIAL SERVICE. UNLIKE

ELECTED OFFICIALS INDEPENDENT FEDERAL JUDGES THUS FACE NO

PERIODIC ACCOUNTING TO A CONSTITUENCY AT THE POLLS. LIFE TENURE

AND INCOME PROTECTION FOR THE JUDGES OF THOSE COURTS ENCOURAGES

RESISTANCE TO POPULAR MOODS OF THE MOMENT NOT PROPERLY EXPRESSED

IN LAW AND PROMOTES THE FIDELITY OF FEDERAL JUDGES TO THE

ENDURING VALUES EMBODIED IN OUR CONSTITUTION.

NOT SURPRISINGLY THE VERY EFFECTIVENESS OF COURTS IN

PROTECTING UNPOPULAR MINORITIES HAS OFTEN PROVOKED MAJORITY

RESENTMENT RESULTING IN PERIODIC ATTEMPTS TO CURB SO-CALLED

"GOVERNMENT BY JUDGES". THE CURRENT ASSAULTS BY THE POLITICAL

RIGHT ON FEDERAL JUDGES AND CONTINUED CONSTITUTIONAL OVERSIGHT

OF CONGRESSIONAL AND EXECUTIVE ACTS BY FEDERAL JUDGES ARE IN

FACT MERELY A CYCLICAL RECURRENCE OF POPULIST FRUSTRATION WITH

THE PREDICTABLE RESULTS OF THE AMERICAN CONSTITUTIONAL SYSTEM.

COURTS SOMETIMES ARE WRONG AND THE COURSE OF LATER EVENTS

DEMONSTRATES THAT ONE OR MORE PRIOR DECISIONS SHOULD BE MODIFIED

OR OVERRULED. SO IT IS PROPER THAT EXECUTIVE AND CONGRESSIONAL

OFFICIALS LIKE ALL OF US CAN AND SHOULD FREELY CRITICIZE

THE COURTS CAN AND SHOULD URGE THE COURTS TO OVERRULE OR REFINE

PRIOR CONSTITUTIONAL DECISIONS AS THEY AND WE HAVE OFTEN

DONE. THAT CRITICISM OF VIGOROUS JUDICIAL PROTECTION OF

INDIVIDUAL RIGHTS AND RESPONSIBILITIES MUST BE CONSTRUCTIVE IN

TENOR AND TONE BUT IT USUALLY IS NOT. INDEED THAT CRITICISM

HAS MOST OFTEN BEEN ONLY A BLATANT ATTEMPT BY POLITICIANS -

LIBERAL AND CONSERVATIVE TO SHIFT THE POWER TO DEFINE THOSE

RIGHTS FROM INSULATED JUDGES TO MEMBERS OF CONGRESS AND OTHER

OFFICIALS WHO ARE SUBJECT TO POLITICAL PRESSURES.

FEDERAL JUDGES DO GET INVOLVED IN DECREEING DRASTIC

REMEDIES AGAINST THE GOVERNMENT IN TOUGH AREAS. GENERALLY THE

FEDERAL JUDGE BEGINS BY ONLY HOLDING WHAT THE GOVERNMENT CANNOT

DO THE FEDERAL JUDGE DOES NOT POINT OUT WHAT GOVERNMENT CAN DO.

SOMETIMES THAT IS ENOUGH. BUT MORE OFTEN THE GOVERNMENT THEN

DOES NOTHING AND THE ONLY JUDICIAL ALTERNATIVE THEN IS FOR A

COURT DECREED RESOLUTION. UNDER SUCH CIRCUMSTANCES THE ANSWER

TO SUCH JUDICIAL ACTIVISM MOST CERTAINLY IS NOT TO CLOSE THE DOOR

TO THE FEDERAL COURTHOUSE. IT IS TO MAKE THOSE OTHER FEDERAL

GOVERNMENTAL INSTITUTIONS DO RIGHT AND DO RIGHT

CONSTITUTIONALLY WITHOUT UNDUE SYMPATHY TO POPULAR DESIRE.

WHILE THE PROHIBITION OF UNCONSTITUTIONAL BEHAVIOR BY A

FEDERAL COURT STILL IS REASONABLY CLEAR-CUT THE CONSTRUCTION OF

POLITICALLY FEASIBLE REMEDIES IS NOT. THE DE FACTO SEGREGATION

OF PUBLIC SCHOOLS EASILY CAN BE DECLARED A VIOLATION BUT WHAT

IS TO BE DONE ABOUT IT? THE SOLUTIONS HAVE NOT PROVED TO BE AS

STRAIGHTFORWARD AS THOSE FOR DE JURE SEGREGATION.

CAN A FEDERAL JUDGE WHO CONCLUDES IN A PARTICULAR CASE

THAT FUNDAMENTALISTS HAVE A CONSTITUTIONAL RIGHT TO PUBLIC SCHOOL

TEXTBOOKS THAT DON'T OFFEND THEIR RELIGIOUS BELIEFS DEVISE A

REMEDY CONSTITUTIONALLY FAIR TO ALL OTHERS? I PERSONALLY DOUBT

THAT THE WISEST JUDGE CAN REMEDY SECULAR HUMANISM IF IT IS

FOUND TO EXIST IN PUBLIC SCHOOLS FOR THOSE FUNDAMENTALISTS

WITHOUT INFRINGING ON THE RELIGIOUS FREEDOM OF OTHERS. OR TAKE

THE CASE OF RACIAL OR GENDER DISCRIMINATION IN EMPLOYMENT! EVEN

IF COURTS DETERMINE WHAT CONSTITUTES PROOF OF SUCH CONSTITUTIONAL

VIOLATIONS HOW DO THEY REMEDY THE PROBLEM WITHOUT HARMING THOSE

WHO DO NOT SUFFER THAT DISCRIMINATION? QUESTIONS LIKE THOSE OF

COURSE GIVE RISE TO OUR AWAKENING RECOGNITION THAT IN THE

EXTENSION OF CIVIL LIBERTIES ONE PERSON'S GAIN IS USUALLY ANOTHER

PERSON'S LOSS. FOR IN RELIGION EMPLOYMENT OR SCHOOLING IN

MOST OTHER CONSTITUTIONALLY CONTESTED AREAS ONE PERSON'S FAIR

REMEDY SEEMS VERY MUCH LIKE ANOTHER PERSON'S UNFAIR DEPRIVATION.

IF THERE ARE INFINITE NUMBERS OF FACTORY JOBS OR PLACES IN

MEDICAL SCHOOL THEN AFFIRMATIVE ACTION WORKS NO HARM IN THE

LONG RUN. BUT IN THE CONTEXT OF LIMITED SOCIAL RESOURCES -

AFFIRMATIVE ACTION IS UNDERSTANDABLY THREATENING TO ESTABLISHED

SOCIAL GROUPS. THESE FACTORS EMPHASIZE THE DIFFICULTY OF

CREATING SOCIALLY AND POLITICALLY ACCEPTABLE REMEDIAL TECHNIQUES.

INDEED THERE IS JUST SO FAR THAT FEDERAL COURTS CAN GO IN

CONSTITUTIONALIZING EQUALITY. "OPTING IN" OR "OPTING OUT" DOES

JUST SO MUCH GOOD SOME STILL ARE CONSTITUTIONALLY TREATED

DIFFERENTLY FROM OTHERS.

TAKEN AS A WHOLE RECENT POLITICAL ATTACKS ON JUDICIAL

DECISIONS WHILE VERY ANNOYING TO THOSE WHO CHERISH JUDICIAL

INDEPENDENCE HAVE NOT FARED WELL WITH THE GENERAL POPULACE.

ATTEMPTS TO SECURE CONGRESSIONAL MODIFICATION OF FEDERAL COURT

DECISIONS AFFECTING INDIVIDUAL LIBERTIES HAVE BEEN UNSUCCESSFUL.

ATTEMPTS TO LIMIT SUBJECT-MATTER FEDERAL JURISDICTION HAVE BEEN

UNSUCCESSFUL. ATTEMPTS TO LIMIT A FEDERAL JUDGE'S REMEDIAL

POWERS HAVE BEEN UNSUCCESSFUL. ATTEMPTS TO ABOLISH LEGAL

SERVICES PROGRAMS FOR THE POOR AND TO CUT OFF THE SHIFTING OF

ATTORNEYS' FEES IN CONSTITUTIONAL RIGHTS CASES HAVE THUS FAR

-7-

- BEEN UNSUCCESSFUL. ATTEMPTS TO ROLL BACK THE RULES ON

"STANDING" HAVE BEEN UNSUCCESSFUL. OPPONENTS OF THE FEDERAL

JUDICIAL SYSTEM HAVE SIMPLY NOT SUCCEEDED IN MAKING MUCH OF A

DENT IN THAT SYSTEM AND TO ME THAT AUGURS WELL FOR THE VITALITY

OF BOTH THE REPUBLIC AND THE INDIVIDUAL RIGHTS OF ITS CITIZENS.

HAPPILY SUPREME COURT DECISIONS STILL ARE "THE LAW OF THE

LAND".

CONTINUED VITALITY OF THE FEDERAL JUDICIAL SYSTEM -

HOWEVER CANNOT BE TAKEN FOR GRANTED. THERE IS NO DOUBT THAT

MASSIVE ATTEMPTS TO SHIFT THE POWER TO ARTICULATE AND ENFORCE

INDIVIDUAL RIGHTS FROM INSULATED AND THEREFORE INDEPENDENT -

FEDERAL JUDGES TO OFFICIALS MORE SUBJECT TO PRESSURE BY THE

POLITICALLY POWERFUL WILL CONTINUE. WITNESS THE CALCULATED

ASSAULT PRESENTLY UNDERWAY BY THE ATTORNEY-GENERAL OF THE UNITED

STATES ON THE ROLE OF FEDERAL JUDGES AS THE BALANCE WHEEL IN THE

AMERICAN SYSTEM.

WHEN THAT ASSAULT AND THE INEVITABLE OTHERS COME -

AS THEY HAVE AND WILL THEY TOO WILL BE MET BECAUSE MOST

-8-

AMERICANS NOW UNDEVIATINGLY ACCEPT THAT FEDERAL JUDICIAL

OVERSIGHT OF EXECUTIVE AND CONGRESSIONAL ACTION IS BY NOW A

FUNDAMENTAL ASPECT OF OUR CONSTITUTIONAL STRUCTURE. TO ARGUE

THAT ONE OWES NO RESPECT TO A COURT DECISION UNLESS THAT PERSON

WAS ACTUALLY A LITIGANT IN THE CASE IS SIMPLY TO INVITE NATIONAL

ANARCHY.

OF COURSE A FEDERAL JUDGE HAS NO SPECIFIC AUTHORITY TO

OVERRULE DECISIONS OF THE PRESIDENT THE CONGRESS OR LOCAL

OFFICIALS ABOUT THE MEANING OF THE CONSTITUTION. FEDERAL

JUDICIAL POWER TO DEFINE AND PROTECT INDIVIDUAL RIGHTS FLOWS -

INSTEAD FROM THE TASK OF RESOLVING DISPUTES BETWEEN CONTESTING

PARTIES A POWER IMPOSED ON THOSE JUDGES BY CONGRESS. IN

CARRYING OUT THAT ASSIGNMENT A FEDERAL JUDGE IS FORCED TO

SELECT THE GOVERNING RULE OF LAW FROM AMONG A NUMBER OF POSSIBLE

SOURCES INVARIABLY URGED UPON THAT JUDGE BY THE CONTESTING

PARTIES. SINCE LITIGANTS WILL OFTEN POINT TO DIFFERENT SOURCES -

A FEDERAL JUDGE MUST USE A RANKING SYSTEM TO DECIDE WHICH LAW

TAKES PRECEDENCE. THE RANKING RULES ARE SIMPLE AND ARE

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DICTATED BY ELEMENTARY POLITICAL THEORY: JUDGE-MADE COMMON LAW

RULES MUST GIVE WAY TO VALID ADMINISTRATIVE REGULATIONS WHICH

IN TURN ARE OUTWEIGHED BY STATUTES WHICH MAY THEMSELVES BE

OVERRIDDEN BY THE CONSTITUTION. IT IS IN THE INEVITABLE PROCESS

OF DECIDING WHETHER THE RULE OF LAW ASSERTED BY ONE CONTESTING

PARTY OFTEN THE GOVERNMENT INVOKING A STATUTE OR AN

ADMINISTRATIVE REGULATION CONFLICTS WITH A HIGHER-RANKING RULE

OF LAW ASSERTED BY ANOTHER CONTESTING PARTY OFTEN AN AGGRIEVED

INDIVIDUAL INVOKING THE CONSTITUTION THAT FEDERAL JUDGES MAP

THE PRECISE SCOPE OF INDIVIDUAL RIGHTS IN OUR SCHEME OF

GOVERNMENT. THE ARTICULATION OF AN INDIVIDUAL RIGHT BY A FEDERAL

JUDGE IS AN ALMOST INCIDENTAL BY-PRODUCT OF THAT FEDERAL JUDGE'S

PRIMARY JOB OF RESOLVING ACTUAL DISPUTES BETWEEN A PERSON AND HIS

OR HER GOVERNMENT OR BETWEEN A PERSON AND HER OR HIS NEIGHBOR -

ALL OF WHICH DISPUTES WERE BY CONGRESSIONAL ACT REFERRED FOR

RESOLUTION TO THAT JUDGE.

SINCE FEDERAL JUDICIAL REVIEW OF CONGRESSIONAL OR

EXECUTIVE ACTION IN PART DEPENDS UPON JUDICIAL CHOICE AND

-10-

DISCRETION IT IS IMPORTANT THAT ITS SUPPORTERS NOT ATTEMPT TO

DEFEND IT ON OTHER INDEFENSIBLE GROUNDS. MOST FEDERAL JUDGES

COUCH THEIR DECISIONS AS THOUGH THEY ANNOUNCE THE ONLY CORRECT

RESULT YET ANY THINKING PERSON KNOWS THAT ALWAYS THERE ARE

CHOICES. UNDERSTANDABLY SUPPORTERS OF FEDERAL JUDICIAL REVIEW

OF GOVERNMENTAL ACTS OFTEN ARGUE THAT THE JUDGES MERELY DISCOVER

THE LAW THAT THEY DON'T MAKE IT. SUCH A DEFENSE IS HOWEVER -

UNPERSUASIVE ILLOGICAL AND UNTRUE. OF COURSE FEDERAL JUDGES

MAKE LAW IN CONSTITUTIONAL CASES AND EVERYONE KNOWS IT.

FEDERAL JUDGES DO DEFINE AND ENFORCE INDIVIDUAL RIGHTS AND

RESPONSIBILITIES NOT BECAUSE NO REAL CHOICES ARE NECESSARY -

BUT PRECISELY BECAUSE HARD CHOICES CANNOT BE AVOIDED AND THOSE

CHOICES SHOULD NOT AND CANNOT BE ENTRUSTED TO POLITICALLY

VULNERABLE OFFICIALS WHO MOST OFTEN SIMPLY REFUSE TO MAKE THEM.

IN THE MAIN THE FEDERAL COURTS HAVE PERFORMED WELL.

OUR BLINDFOLDED FIGURE HOLDING THE SCALES OF JUSTICE HAS BEEN

WORLDWIDE BOTH A SYMBOL AND A REALITY. THE FEDERAL COURTS HAVE

ACHIEVED SUCCESS WHERE THE OTHER FEDERAL INSTITUTIONS HAVE NOT -

-11-

SUCCESS AS SEEN BY THE NEGLECTED AND IGNORED AND THE POOR AND

THE WEAK AS BEING A MEANINGFUL VEHICLE FOR ACHIEVING DESIRABLE

SOCIAL CHANGE AS PROTECTING FREEDOM.

THAT VERY SUCCESS HAS CREATED A LARGE PROBLEM: AS

RELIANCE UPON THE FEDERAL COURTS HAS INCREASED THERE HAS BEEN A

CONCOMMITANT DECREASE IN THE INSTITUTIONAL PUBLIC SUPPORT OF THE

OTHER BRANCHES OF THE FEDERAL GOVERNMENT. A POLICY DECISION THAT

IS NOT DIRECTED BY A STRONG NATIONAL CITIZENS CONSENSUS IS MOST

OFTEN DEFAULTED BY THE ENTIRE NATIONAL GOVERNMENT EXCEPT THE

FEDERAL COURTS AND RESPONSIBLE FEDERAL JUDGES ALONE MUST ACT IF

INDIVIDUAL RIGHTS ARE TO BE GOVERNMENTALLY ENHANCED AND

PRESERVED.

SINCE INDIVIDUAL RIGHTS ARE RARELY SELF-DEFINING AND ARE

NEVER SELF-ENFORCING ANY POLITICAL SYSTEM WHICH INTENDS TO

RECOGNIZE THOSE RIGHTS ALWAYS MUST MAKE A FUNDAMENTAL CHOICE

ABOUT WHO IS TO DEFINE AND ENFORCE THEM. MANY SOCIETIES HAVE

CHOSEN TO GIVE POLITICALLY SENSITIVE LEGISLATORS OR

ADMINISTRATORS THE LAST WORD IN DECIDING THEIR SCOPE. AMERICA -

-12-

ON THE OTHER HAND WISELY HAS CHOSEN TO GIVE PRECISE MEANING TO

THE CONCEPT OF INDIVIDUAL RIGHTS BY USING INSULATED FEDERAL

JUDGES TO CONSTRUE A PURPOSEFULLY AMBIGUOUS AND EVOLVING DOCUMENT

CALLED A CONSTITUTION.

USING INSULATED JUDGES INSTEAD OF MEMBERS OF CONGRESS TO

DEFINE AND ENFORCE INDIVIDUAL RIGHTS HAS ONE IMPORTANT PRACTICAL

ADVANTAGE AND ONE OBVIOUS THEORETICAL DRAWBACK. ON THE PLUS SIDE

WHEN THE ISSUE IS WHETHER AN INDIVIDUAL POSSESSES A RIGHT TO DO

AS HE OR SHE WISHES REGARDLESS OF THE DESIRES OF THOSE THEN

RUNNING THE GOVERNMENT IT DOESN'T MAKE MUCH FUNCTIONAL SENSE TO

ALLOW THOSE OFFICIALS TO DECIDE THE QUESTION. CLOSE CASES UNDER

SUCH AN ARRANGEMENT IN OTHER COUNTRIES ARE ALMOST ALWAYS RESOLVED

AGAINST THE INDIVIDUAL AND IN FAVOR OF THE POLITICALLY

POWERFUL. ALLOWING FEDERAL JUDGES WHO ARE RELATIVELY INSULATED

FROM PUBLIC OPINION TO DEFINE THE SCOPE OF INDIVIDUAL RIGHTS IS

THUS FAR MORE LIKELY TO RESULT IN THE SUSTAINED AND VIGOROUS

ENUNCIATION OF SUCH RIGHTS THAN A SYSTEM WHICH RELEGATES THE TASK

TO THOSE SELECTED BY THE POLITICALLY POWERFUL.

-13-

ON THE MINUS SIDE EVEN FEDERAL JUDGES APPOINTED FOR

LIFE ARE NOT WITHOUT A DEMOCRATIC IMPRIMATUR. THEY ARE GENERALLY

DRAWN FROM THE POLITICAL WORLD THEY ARE APPOINTED BY THE

POLITICALLY-ELECTED PRESIDENT AND THEY MUST BE CONFIRMED BY THE

POLITICALLY-ELECTED SENATE. MOST PRESIDENTS HAVE SOUGHT

PROMINENT EXPERIENCED LAWYERS FOR JUDICIAL APPOINTMENT EITHER

THROUGH THEIR OWN SEARCH PROCESS OR THROUGH SENATORIAL PROPOSALS.

CANDIDATES TRADITIONALLY HAVE BEEN EVALUATED ONLY FOR LEGAL

COMPETENCE INTEGRITY SCHOLARSHIP AND JUDICIAL TEMPERAMENT -

NOT FOR PREDETERMINED PARTISANSHIP. POLITICAL AFFILIATION

PROPERLY HAS PROVIDED A SOURCE OF RECOGNITION NOT A COLORATION

TEST FOR PHILOSOPHICAL ORTHODOXY. OVER TIME THIS PATTERN HAS

CREATED AGAIN AND AGAIN A FEDERAL JUDICIARY RICH IN DIVERSITY

AND EXPERIENCE.

BUT THE VERY REAL POSSIBILITY OF POLITICAL INTERVENTION

STILL EXISTS. PRESIDENT REAGAN HAS HAD OR WILL HAVE THE

PRIVILEGE OF APPOINTING FULLY HALF OF THE NATION'S FEDERAL

JUDGES. THE AMERICAN PEOPLE HAVE A RIGHT TO INSIST THAT IN

-14-

MAKING THOSE APPOINTMENTS HE TOO STRIVE FOR CANDIDATES OF THE

HIGHEST QUALITY EVEN THOUGH SOME OF HIS PRESIDENTIAL

PREDECESSORS HAVE DEVIATED FROM THAT STANDARD. THE JUSTICE

DEPARTMENT THEORETICALLY SHOULD OFFER THE PRESIDENT ONLY PEOPLE

WHO HAVE THE BREADTH OF MIND AND THE DIVERSITY OF EXPERIENCE TO

EQUIP THEM TO ADMINISTER JUSTICE IN THIS EVER MORE COMPLEX WORLD

- REFLECTIVE AND SCHOLARLY WOMEN OR MEN WHO HONOR AND CHERISH OUR

WAY OF LIFE BUT OFTIMES THE DEPARTMENT APPEARS STRONGLY TO

EMPHASIZE OTHER CRITERIA. INDEED PRESIDENT REAGAN APPEARS TO

ACCEPT FROM HIS ADVISORS ONLY CANDIDATES WHO FIT THE MOST RIGID

AND STAGNANT STEROTYPE OF "CONSERVATISM". CREDO APPEARS TO BE

MORE IMPORTANT TO HIM THAN TALENT EXPERIENCE AND INTELLECTUAL

CAPACITY. IF SO THAT IS WRONG JUST AS IT WAS WRONG FOR PRIOR

PRESIDENTS TO SEEK OUT THOSE DEVOTED ONLY TO "LIBERALISM". IF

SUCH PRACTICES EXIST AND REMAIN UNCHECKED FOR A SUBSTANTIAL

PERIOD THE INTELLECTUAL INTEGRITY DIVERSITY AND

INDEPENDENCE SO VITAL TO THE FEDERAL JUDICIARY IN FUTURE YEARS

UNDOUBTEDLY WILL BE CHILLED AND DIMINISHED.

-15-

QUITE OBVIOUSLY THE BUSINESS OF THE FEDERAL COURTS

SHOULD BE GREATLY EXPANDED TO PROTECT AND EXTEND BOTH ECONOMIC

AND CIVIL RIGHTS. FOR NEARLY TWO HUNDRED YEARS OF THIS NATION'S

HISTORY FEW BLACKS HISPANICS OR ASIAN-AMERICANS TO NAME

ONLY A FEW OF THE VICTIMS OF OPPRESSION WOULD HAVE THOUGHT OF

TAKING THEIR CLAIMS TO FEDERAL COURT. THEY KNEW THEY WOULD

RECEIVE NO HEARING THERE.. BUT TODAY THE EXPECTATIONS OF THE

DISADVANTAGED AS WELL AS THE SENSITIVITY OF OUR SOCIETY TO

THEIR PLIGHT HAS BEEN HEIGHTENED. EVERYONE THINKS OF THE

FEDERAL COURTS AS PROTECTOR. BUT IN MANY COUNTRIES JUDGES ARE

NO MORE THAN INSTRUMENTS OF THOSE WHO HOLD POLITICAL POWER. IN

AMERICA OUR PEOPLE EXPECT COURTS TO BE A CHECK ON THAT POWER -

AND THEY TRADITIONALLY HAVE BEEN. TO CHANGE NOW SIMPLY WOULD

TURN OUR FEDERAL COURTS INTO PEOPLES COURTS COURTS OF POPULAR

WILL COURTS WHO ADMITTEDLY FOLLOW ELECTION RETURNS COURTS WHO

RESPOND FREELY TO TRANSITORY MAJORITIES ALL OF WHICH WOULD BE

AN ANATHEMA TO HISTORICAL AMERICAN CULTURE.

-16-

THE FEDERAL JUDICIARY TO ACHIEVE MAXIMUM PUBLIC

ENDORSEMENT MUST BE EVER MORE DIVERSE IN ETHNIC ORIGIN AND

POLITICAL VIEWS SO AFFIRMATIVE ACTION PROGRAMS IN JUDICIAL

APPOINTMENTS ARE INDEED REQUIRED FROM THE PRESIDENT NOW TO MAKE

THE FEDERAL JUDICIARY MORE REPRESENTATIVE OF THE POPULATION.

WOMEN TOO MUST PLAY AN IMPORTANT ROLE DEMANDING AND RECEIVING

EQUAL REPRESENTATION.

ADMITTEDLY THE VERY EFFECTIVENESS OF AN INSULATED

FEDERAL JUDGE AS A ONE-PERSON GENERATOR OF INDIVIDUAL RIGHTS IS

IN TENSION WITH OUR DEEPLY FELT RESPECT FOR DEMOCRATIC DECISION

MAKING AND OUR NATIONAL COMMITMENT TO MAJORITY RULE. A GREAT

DEAL OF THAT TENSION COULD BE RELIEVED BY THE RECOGNITION BY MOST

AMERICANS THAT SOME OF WHAT PASSES FOR MAJORITY RULE AT ANY ONE

TIME IN ANY DEMOCRACY IS IN FACT ONE TRANSIENT MINORITY OR

ANOTHER WHICH HAS MANAGED TO ATTAIN TEMPORARY POLITICAL

ASCENDANCY. TODAY NEVER MATCHES TOMORROW IN THE ATTAINMENT OF

INDIVIDUAL LIBERTY AND FREEDOM AND IT WILL NOT. ALLOWING

FEDERAL JUDGES TO CHECK SUCH A POWERFUL TRANSIENT MINORITY IN THE

-17-

NAME OF AN EXISTING CONSENSUS CONCERNING INDIVIDUAL RIGHTS IS

THUS HARDLY A SERIOUS LONG-RANGE CHALLENGE TO DEMOCRATIC

POLITICAL THEORY. INDEED IT IS THE KIND OF EXCEPTION THAT

GIVES LASTING VALIDITY TO MAJORITY RULE. THERE SHOULD BE NO

POPULAR POSITION NO PERMANENT MAJORITY WILL IN CONSTITUTIONAL

OVERSIGHT BY INDEPENDENT FEDERAL JUDGES. AMERICANS SHOULD NEVER

CONDONE A "LITMUS TEST" ON JUDICIAL CANDIDATES BY APPOINTING

AUTHORITIES IN THE SENSE THAT THOSE CANDIDATES FOR SELECTION HAVE

TO BE ON ONE SIDE OR THE OTHER OF PARTICULAR CONSTITUTIONAL

ISSUES. THE CONSTITUTION ASSURES FEDERAL JUDGES THAT THEY ARE

ABOVE THE POLITICAL FRAY AND WAY ABOVE REMOTE AND FREE FROM

A TEMPORARY MAJORITY. FEDERAL JUDGES CAN NEVER BE RESPONSIVE TO

A PARTICULAR QUADRENNIAL ELECTION TO A SO-CALLED POLITICAL

MANDATE AS IS NOW OFTEN CLAIMED TO EXIST IN CHOSEN AREAS.

PRESIDENTIAL ELECTIONS ARE NOT REFERENDUMS ON THE ADMINISTRATION

OF FEDERAL JUSTICE NOR IN MY OPINION DO THEY LICENSE ANY

PRESIDENT OR SENATE TO RESHAPE THE CONSTITUTIONAL JUSTICE

SYSTEM BY CREATING A MONOLITHIC FEDERAL JUDICIARY.

-18-

IN ANY EVENT WHATEVER THE PRESENT POLITICAL

DIFFICULTIES FEDERAL JUDICIAL INTERPRETATION OF THE

CONSTITUTION HAS IN THE PAST THIRTY YEARS FUNCTIONED AS A

POWERFUL GENERATOR OF INDIVIDUAL RIGHTS. REVIEW OF CONGRESSIONAL

AND EXECUTIVE ACTIONS AGAINST CONSTITUTIONAL MINIMUMS IN FEDERAL

COURTS BY INDEPENDENT AND POLITICALLY INSULATED JUDGES IN THOSE

YEARS HAS RESULTED IN THE SUSTAINED ARTICULATION AND ENFORCEMENT

OF MANY THERETOFORE UNACCEPTED INDIVIDUAL RIGHTS AND

RESPONSIBILITIES THE RECOGNITION OF WHICH WOULD HAVE BEEN

INCONCEIVABLE HAD THE FEDERAL COURTS LEFT THE TASK TO THE THEN

POLITICAL MAJORITY.

SO TO ME AN INDEPENDENT IMPARTIAL FEDERAL

JUDICIARY CLEARLY IS AND REMAINS THE BULWARK AND GREATEST

HOPE OF CONTINUED FREEDOM FOR THOSE TEMPORARILY OR PERMANENTLY

OUT OF GOVERNMENTAL POWER. SO IT IS SO IT HAS BEEN AND SO IT

WILL BE OR AMERICA WILL NOT BE THE AMERICA WE HAVE KNOWN.

(THE END)

-19-

REMARKS OF:

BEFORE:

CHESTERFIELD SMITH

LAWYER

HOLLAND & KNIGHT

MIAMI, FLORIDA

INDIANA CIVIL LIBERTIES UNION

THE ROLE OF AN INDEPENDENT JUDICIARY

IN A DEMOCRATIC SOCIETY

HYATT REGENCY HOTEL

INDIANAPOLIS, INDIANA

SATURDAY, NOVEMBER 1, 1986

6:30 P.M.

TITLE:

PLACE:

DATE:

TWENTY-FIVE MINUTES

LENGTH:

AMERICANS LONG HAVE REALIZED THAT AN ABSOLUTELY

INDEPENDENT FEDERAL JUDICIARY IS ESSENTIAL TO THE PRESERVATION OF

BOTH OUR REPUBLICAN FORM OF GOVERNMENT AND OUR CHERISHED

INDIVIDUAL RIGHTS. THAT JUDICIAL INDEPENDENCE IS IN A

SIGNIFICANT WAY BUTTRESSED ON THE CONTINUED DEVOTION OF OUR

PEOPLE TO EACH CONCEPT. UNDER OUR CONSTITUTIONAL SYSTEM THE

SIMPLE TRUTH IS THAT THE FUNDAMENTAL CHECK TO FEDERAL

GOVERNMENTAL POWER AND ITS POTENTIAL ABUSE HAS BEEN IS -

AND WILL BE THE FEDERAL COURTS. THE INDEPENDENCE OF THE FEDERAL

JUDICIARY FROM INTERVENTION BY OTHER GOVERNMENTAL BRANCHES IS

THUS A BASIC TENENT OF UNITED STATES DEMOCRACY. INDEED TIMES

MARKED BY POLITICAL DISSENT AND TIMES OF GOVERNMENT REPRESSION

ARE THE TURBULENT PERIODS WHEN AN INDEPENDENT FEDERAL JUDICIARY

CONSTRUING THE BILL OF RIGHTS HISTORICALLY HAS PROVEN A PRIME

CHECK ON POTENTIAL GOVERNMENTAL MISCONDUCT.

WHERE A JUDICIARY IS NOT STRUCTURALLY AND IN FACT -

INDEPENDENT FROM OTHER BRANCHES OF GOVERNMENT OR WHERE ITS

INDEPENDENCE IS NOT FORMALLY RESPECTED BY THE CITIZENRY OR

WHERE LITIGANTS BEFORE IT ARE INTIMIDATED OR PERSECUTED FOR

MERELY ATTEMPTING TO SECURE THEIR RIGHTS AND FREEDOMS THERE ARE

NO EFFECTIVE DEFENSES IN THAT JUDICIAL SYSTEM AGAINST OR

REMEDIES FOR INDIVIDUAL PROTECTION FROM GOVERNMENTAL

VIOLATIONS.

THE CONSTITUTION PROVIDES THAT FEDERAL JUDGES HOLD THEIR

OFFICES DURING GOOD BEHAVIOUR AND RECEIVE A COMPENSATION WHICH

CANNOT BE DIMINISHED DURING THEIR JUDICIAL SERVICE. UNLIKE

ELECTED OFFICIALS INDEPENDENT FEDERAL JUDGES THUS FACE NO

PERIODIC ACCOUNTING TO A CONSTITUENCY AT THE POLLS. LIFE TENURE

AND INCOME PROTECTION FOR THE JUDGES OF THOSE COURTS ENCOURAGES

RESISTANCE TO POPULAR MOODS OF THE MOMENT NOT PROPERLY EXPRESSED

IN LAW AND PROMOTES THE FIDELITY OF FEDERAL JUDGES TO THE

ENDURING VALUES EMBODIED IN OUR CONSTITUTION.

NOT SURPRISINGLY THE VERY EFFECTIVENESS OF COURTS IN

PROTECTING UNPOPULAR MINORITIES HAS OFTEN PROVOKED MAJORITY

RESENTMENT RESULTING IN PERIODIC ATTEMPTS TO CURB SO-CALLED

"GOVERNMENT BY JUDGES". THE CURRENT ASSAULTS BY THE POLITICAL

-3-

RIGHT ON FEDERAL JUDGES AND CONTINUED CONSTITUTIONAL OVERSIGHT

OF CONGRESSIONAL AND EXECUTIVE ACTS BY FEDERAL JUDGES ARE IN

FACT MERELY A CYCLICAL RECURRENCE OF POPULIST FRUSTRATION WITH

THE PREDICTABLE RESULTS OF THE AMERICAN CONSTITUTIONAL SYSTEM.

COURTS SOMETIMES ARE WRONG AND THE COURSE OF LATER EVENTS

DEMONSTRATES THAT ONE OR MORE PRIOR DECISIONS SHOULD BE MODIFIED

OR OVERRULED. SO IT IS PROPER THAT EXECUTIVE AND CONGRESSIONAL

OFFICIALS LIKE ALL OF US CAN AND SHOULD FREELY CRITICIZE

THE COURTS CAN AND SHOULD URGE THE COURTS TO OVERRULE OR REFINE

PRIOR CONSTITUTIONAL DECISIONS AS THEY AND WE HAVE OFTEN

DONE. THAT CRITICISM OF VIGOROUS JUDICIAL PROTECTION OF

INDIVIDUAL RIGHTS AND RESPONSIBILITIES MUST BE CONSTRUCTIVE IN

TENOR AND TONE BUT IT USUALLY IS NOT. INDEED THAT CRITICISM

HAS MOST OFTEN BEEN ONLY A BLATANT ATTEMPT BY POLITICIANS -

LIBERAL AND CONSERVATIVE TO SHIFT THE POWER TO DEFINE THOSE

RIGHTS FROM INSULATED JUDGES TO MEMBERS OF CONGRESS AND OTHER

OFFICIALS WHO ARE SUBJECT TO POLITICAL PRESSURES.

-4-

FEDERAL JUDGES DO GET INVOLVED IN DECREEING DRASTIC

REMEDIES AGAINST THE GOVERNMENT IN TOUGH AREAS. GENERALLY THE

FEDERAL JUDGE BEGINS BY ONLY HOLDING WHAT THE GOVERNMENT CANNOT

DO THE FEDERAL JUDGE DOES NOT POINT OUT WHAT GOVERNMENT CAN DO.

SOMETIMES THAT IS ENOUGH. BUT MORE OFTEN THE GOVERNMENT THEN

DOES NOTHING AND THE ONLY JUDICIAL ALTERNATIVE THEN IS FOR A

COURT DECREED RESOLUTION. UNDER SUCH CIRCUMSTANCES THE ANSWER

TO SUCH JUDICIAL ACTIVISM MOST CERTAINLY IS NOT TO CLOSE THE DOOR

TO THE FEDERAL COURTHOUSE. IT IS TO MAKE THOSE OTHER FEDERAL

GOVERNMENTAL INSTITUTIONS DO RIGHT AND DO RIGHT

CONSTITUTIONALLY WITHOUT UNDUE SYMPATHY TO POPULAR DESIRE.

WHILE THE PROHIBITION OF UNCONSTITUTIONAL BEHAVIOR BY A

FEDERAL COURT STILL IS REASONABLY CLEAR-CUT THE CONSTRUCTION OF

POLITICALLY FEASIBLE REMEDIES IS NOT. THE DE FACTO SEGREGATION

OF PUBLIC SCHOOLS EASILY CAN BE DECLARED A VIOLATION BUT WHAT

IS TO BE DONE ABOUT IT? THE SOLUTIONS HAVE NOT PROVED TO BE AS

STRAIGHTFORWARD AS THOSE FOR DE JURE SEGREGATION.

-5-

CAN A FEDERAL JUDGE WHO CONCLUDES IN A PARTICULAR CASE

THAT FUNDAMENTALISTS HAVE A CONSTITUTIONAL RIGHT TO PUBLIC SCHOOL

TEXTBOOKS THAT DON'T OFFEND THEIR RELIGIOUS BELIEFS DEVISE A

REMEDY CONSTITUTIONALLY FAIR TO ALL OTHERS? I PERSONALLY DOUBT

THAT THE WISEST JUDGE CAN REMEDY SECULAR HUMANISM IF IT IS

FOUND TO EXIST IN PUBLIC SCHOOLS FOR THOSE FUNDAMENTALISTS

WITHOUT INFRINGING ON THE RELIGIOUS FREEDOM OF OTHERS. OR TAKE

THE CASE OF RACIAL OR GENDER DISCRIMINATION IN EMPLOYMENT! EVEN

IF COURTS DETERMINE WHAT CONSTITUTES PROOF OF SUCH CONSTITUTIONAL

VIOLATIONS HOW DO THEY REMEDY THE PROBLEM WITHOUT HARMING THOSE

WHO DO NOT SUFFER THAT DISCRIMINATION? QUESTIONS LIKE THOSE OF

COURSE GIVE RISE TO OUR AWAKENING RECOGNITION THAT IN THE

EXTENSION OF CIVIL LIBERTIES ONE PERSON'S GAIN IS USUALLY ANOTHER

PERSON'S LOSS. FOR IN RELIGION EMPLOYMENT OR SCHOOLING IN

MOST OTHER CONSTITUTIONALLY CONTESTED AREAS ONE PERSON'S FAIR

REMEDY SEEMS VERY MUCH LIKE ANOTHER PERSON'S UNFAIR DEPRIVATION.

IF THERE ARE INFINITE NUMBERS OF FACTORY JOBS OR PLACES IN

MEDICAL SCHOOL THEN AFFIRMATIVE ACTION WORKS NO HARM IN THE

-6-

LONG RUN. BUT IN THE CONTEXT OF LIMITED SOCIAL RESOURCES -

AFFIRMATIVE ACTION IS UNDERSTANDABLY THREATENING TO ESTABLISHED

SOCIAL GROUPS. THESE FACTORS EMPHASIZE THE DIFFICULTY OF

CREATING SOCIALLY AND POLITICALLY ACCEPTABLE REMEDIAL TECHNIQUES.

INDEED THERE IS JUST SO FAR THAT FEDERAL COURTS CAN GO IN

CONSTITUTIONALIZING EQUALITY. "OPTING IN" OR "OPTING OUT" DOES

JUST SO MUCH GOOD SOME STILL ARE CONSTITUTIONALLY TREATED

DIFFERENTLY FROM OTHERS.

TAKEN AS A WHOLE RECENT POLITICAL ATTACKS ON JUDICIAL

DECISIONS WHILE VERY ANNOYING TO THOSE WHO CHERISH JUDICIAL

INDEPENDENCE HAVE NOT FARED WELL WITH THE GENERAL POPULACE.

ATTEMPTS TO SECURE CONGRESSIONAL MODIFICATION OF FEDERAL COURT

DECISIONS AFFECTING INDIVIDUAL LIBERTIES HAVE BEEN UNSUCCESSFUL.

ATTEMPTS TO LIMIT SUBJECT-MATTER FEDERAL JURISDICTION HAVE BEEN

UNSUCCESSFUL. ATTEMPTS TO LIMIT A FEDERAL JUDGE'S REMEDIAL

POWERS HAVE BEEN UNSUCCESSFUL. ATTEMPTS TO ABOLISH LEGAL

SERVICES PROGRAMS FOR THE POOR AND TO CUT OFF THE SHIFTING OF

ATTORNEYS' FEES IN CONSTITUTIONAL RIGHTS CASES HAVE THUS FAR

- BEEN UNSUCCESSFUL. ATTEMPTS TO ROLL BACK THE RULES ON

"STANDING" HAVE BEEN UNSUCCESSFUL. OPPONENTS OF THE FEDERAL

JUDICIAL SYSTEM HAVE SIMPLY NOT SUCCEEDED IN MAKING MUCH OF A

DENT IN THAT SYSTEM AND TO ME THAT AUGURS WELL FOR THE VITALITY

OF BOTH THE REPUBLIC AND THE INDIVIDUAL RIGHTS OF ITS CITIZENS.

HAPPILY SUPREME COURT DECISIONS STILL ARE "THE LAW OF THE

LAND".

CONTINUED VITALITY OF THE FEDERAL JUDICIAL SYSTEM -

HOWEVER CANNOT BE TAKEN FOR GRANTED. THERE IS NO DOUBT THAT

MASSIVE ATTEMPTS TO SHIFT THE POWER TO ARTICULATE AND ENFORCE

INDIVIDUAL RIGHTS FROM INSULATED AND THEREFORE INDEPENDENT -

FEDERAL JUDGES TO OFFICIALS MORE SUBJECT TO PRESSURE BY THE

POLITICALLY POWERFUL WILL CONTINUE. WITNESS THE CALCULATED

ASSAULT PRESENTLY UNDERWAY BY THE ATTORNEY-GENERAL OF THE UNITED

STATES ON THE ROLE OF FEDERAL JUDGES AS THE BALANCE WHEEL IN THE

AMERICAN SYSTEM.

WHEN THAT ASSAULT AND THE INEVITABLE OTHERS COME -

AS THEY HAVE AND WILL THEY TOO WILL BE MET BECAUSE MOST

-8-

AMERICANS NOW UNDEVIATINGLY ACCEPT THAT FEDERAL JUDICIAL

OVERSIGHT OF EXECUTIVE AND CONGRESSIONAL ACTION IS BY NOW A

FUNDAMENTAL ASPECT OF OUR CONSTITUTIONAL STRUCTURE. TO ARGUE

THAT ONE OWES NO RESPECT TO A COURT DECISION UNLESS THAT PERSON

WAS ACTUALLY A LITIGANT IN THE CASE IS SIMPLY TO INVITE NATIONAL

ANARCHY.

OF COURSE A FEDERAL JUDGE HAS NO SPECIFIC AUTHORITY TO

OVERRULE DECISIONS OF THE PRESIDENT THE CONGRESS OR LOCAL

OFFICIALS ABOUT THE MEANING OF THE CONSTITUTION. FEDERAL

JUDICIAL POWER TO DEFINE AND PROTECT INDIVIDUAL RIGHTS FLOWS -

INSTEAD FROM THE TASK OF RESOLVING DISPUTES BETWEEN CONTESTING

PARTIES A POWER IMPOSED ON THOSE JUDGES BY CONGRESS. IN

CARRYING OUT THAT ASSIGNMENT A FEDERAL JUDGE IS FORCED TO

SELECT THE GOVERNING RULE OF LAW FROM AMONG A NUMBER OF POSSIBLE

SOURCES INVARIABLY URGED UPON THAT JUDGE BY THE CONTESTING

PARTIES. SINCE LITIGANTS WILL OFTEN POINT TO DIFFERENT SOURCES -

A FEDERAL JUDGE MUST USE A RANKING SYSTEM TO DECIDE WHICH LAW

TAKES PRECEDENCE. THE RANKING RULES ARE SIMPLE AND ARE

-9-

DICTATED BY ELEMENTARY POLITICAL THEORY: JUDGE-MADE COMMON LAW

RULES MUST GIVE WAY TO VALID ADMINISTRATIVE REGULATIONS WHICH

IN TURN ARE OUTWEIGHED BY STATUTES WHICH MAY THEMSELVES BE

OVERRIDDEN BY THE CONSTITUTION. IT IS IN THE INEVITABLE PROCESS

OF DECIDING WHETHER THE RULE OF LAW ASSERTED BY ONE CONTESTING

PARTY OFTEN THE GOVERNMENT INVOKING A STATUTE OR AN

ADMINISTRATIVE REGULATION CONFLICTS WITH A HIGHER-RANKING RULE

OF LAW ASSERTED BY ANOTHER CONTESTING PARTY OFTEN AN AGGRIEVED

INDIVIDUAL INVOKING THE CONSTITUTION THAT FEDERAL JUDGES MAP

THE PRECISE SCOPE OF INDIVIDUAL RIGHTS IN OUR SCHEME OF

GOVERNMENT. THE ARTICULATION OF AN INDIVIDUAL RIGHT BY A FEDERAL

JUDGE IS AN ALMOST INCIDENTAL BY-PRODUCT OF THAT FEDERAL JUDGE'S

PRIMARY JOB OF RESOLVING ACTUAL DISPUTES BETWEEN A PERSON AND HIS

OR HER GOVERNMENT OR BETWEEN A PERSON AND HER OR HIS NEIGHBOR -

ALL OF WHICH DISPUTES WERE BY CONGRESSIONAL ACT REFERRED FOR

RESOLUTION TO THAT JUDGE.

SINCE FEDERAL JUDICIAL REVIEW OF CONGRESSIONAL OR

EXECUTIVE ACTION IN PART DEPENDS UPON JUDICIAL CHOICE AND

-10-

DISCRETION IT IS IMPORTANT THAT ITS SUPPORTERS NOT ATTEMPT TO

DEFEND IT ON OTHER INDEFENSIBLE GROUNDS. MOST FEDERAL JUDGES

COUCH THEIR DECISIONS AS THOUGH THEY ANNOUNCE THE ONLY CORRECT

RESULT YET ANY THINKING PERSON KNOWS THAT ALWAYS THERE ARE

CHOICES. UNDERSTANDABLY SUPPORTERS OF FEDERAL JUDICIAL REVIEW

OF GOVERNMENTAL ACTS OFTEN ARGUE THAT THE JUDGES MERELY DISCOVER

THE LAW THAT THEY DON'T MAKE IT. SUCH A DEFENSE IS HOWEVER -

UNPERSUASIVE ILLOGICAL AND UNTRUE. OF COURSE FEDERAL JUDGES

MAKE LAW IN CONSTITUTIONAL CASES AND EVERYONE KNOWS IT.

FEDERAL JUDGES DO DEFINE AND ENFORCE INDIVIDUAL RIGHTS AND

RESPONSIBILITIES NOT BECAUSE NO REAL CHOICES ARE NECESSARY -

BUT PRECISELY BECAUSE HARD CHOICES CANNOT BE AVOIDED AND THOSE

CHOICES SHOULD NOT AND CANNOT BE ENTRUSTED TO POLITICALLY

VULNERABLE OFFICIALS WHO MOST OFTEN SIMPLY REFUSE TO MAKE THEM.

IN THE MAIN THE FEDERAL COURTS HAVE PERFORMED WELL.

OUR BLINDFOLDED FIGURE HOLDING THE SCALES OF JUSTICE HAS BEEN

WORLDWIDE BOTH A SYMBOL AND A REALITY. THE FEDERAL COURTS HAVE

ACHIEVED SUCCESS WHERE THE OTHER FEDERAL INSTITUTIONS HAVE NOT -

-11-

SUCCESS AS SEEN BY THE NEGLECTED AND IGNORED AND THE POOR AND

THE WEAK AS BEING A MEANINGFUL VEHICLE FOR ACHIEVING DESIRABLE

SOCIAL CHANGE AS PROTECTING FREEDOM.

THAT VERY SUCCESS HAS CREATED A LARGE PROBLEM: AS

RELIANCE UPON THE FEDERAL COURTS HAS INCREASED THERE HAS BEEN A

CONCOMMITANT DECREASE IN THE INSTITUTIONAL PUBLIC SUPPORT OF THE

OTHER BRANCHES OF THE FEDERAL GOVERNMENT. A POLICY DECISION THAT

IS NOT DIRECTED BY A STRONG NATIONAL CITIZENS CONSENSUS IS MOST

OFTEN DEFAULTED BY THE ENTIRE NATIONAL GOVERNMENT EXCEPT THE

FEDERAL COURTS AND RESPONSIBLE FEDERAL JUDGES ALONE MUST ACT IF

INDIVIDUAL RIGHTS ARE TO BE GOVERNMENTALLY ENHANCED AND

PRESERVED.

SINCE INDIVIDUAL RIGHTS ARE RARELY SELF-DEFINING AND ARE

NEVER SELF-ENFORCING ANY POLITICAL SYSTEM WHICH INTENDS TO

RECOGNIZE THOSE RIGHTS ALWAYS MUST MAKE A FUNDAMENTAL CHOICE

ABOUT WHO IS TO DEFINE AND ENFORCE THEM. MANY SOCIETIES HAVE

CHOSEN TO GIVE POLITICALLY SENSITIVE LEGISLATORS OR

ADMINISTRATORS THE LAST WORD IN DECIDING THEIR SCOPE. AMERICA -

-12-

ON THE OTHER HAND WISELY HAS CHOSEN TO GIVE PRECISE MEANING TO

THE CONCEPT OF INDIVIDUAL RIGHTS BY USING INSULATED FEDERAL

JUDGES TO CONSTRUE A PURPOSEFULLY AMBIGUOUS AND EVOLVING DOCUMENT

CALLED A CONSTITUTION.

USING INSULATED JUDGES INSTEAD OF MEMBERS OF CONGRESS TO

DEFINE AND ENFORCE INDIVIDUAL RIGHTS HAS ONE IMPORTANT PRACTICAL

ADVANTAGE AND ONE OBVIOUS THEORETICAL DRAWBACK. ON THE PLUS SIDE

WHEN THE ISSUE IS WHETHER AN INDIVIDUAL POSSESSES A RIGHT TO DO

AS HE OR SHE WISHES REGARDLESS OF THE DESIRES OF THOSE THEN

RUNNING THE GOVERNMENT IT DOESN'T MAKE MUCH FUNCTIONAL SENSE TO

ALLOW THOSE OFFICIALS TO DECIDE THE QUESTION. CLOSE CASES UNDER

SUCH AN ARRANGEMENT IN OTHER COUNTRIES ARE ALMOST ALWAYS RESOLVED

AGAINST THE INDIVIDUAL AND IN FAVOR OF THE POLITICALLY

POWERFUL. ALLOWING FEDERAL JUDGES WHO ARE RELATIVELY INSULATED

FROM PUBLIC OPINION TO DEFINE THE SCOPE OF INDIVIDUAL RIGHTS IS

THUS FAR MORE LIKELY TO RESULT IN THE SUSTAINED AND VIGOROUS

ENUNCIATION OF SUCH RIGHTS THAN A SYSTEM WHICH RELEGATES THE TASK

TO THOSE SELECTED BY THE POLITICALLY POWERFUL.

-13-

ON THE MINUS SIDE EVEN FEDERAL JUDGES APPOINTED FOR

LIFE ARE NOT WITHOUT A DEMOCRATIC IMPRIMATUR. THEY ARE GENERALLY

DRAWN FROM THE POLITICAL WORLD THEY ARE APPOINTED BY THE

POLITICALLY-ELECTED PRESIDENT AND THEY MUST BE CONFIRMED BY THE

POLITICALLY-ELECTED SENATE. MOST PRESIDENTS HAVE SOUGHT

PROMINENT EXPERIENCED LAWYERS FOR JUDICIAL APPOINTMENT EITHER

THROUGH THEIR OWN SEARCH PROCESS OR THROUGH SENATORIAL PROPOSALS.

CANDIDATES TRADITIONALLY HAVE BEEN EVALUATED ONLY FOR LEGAL

COMPETENCE INTEGRITY SCHOLARSHIP AND JUDICIAL TEMPERAMENT -

NOT FOR PREDETERMINED PARTISANSHIP. POLITICAL AFFILIATION

PROPERLY HAS PROVIDED A SOURCE OF RECOGNITION NOT A COLORATION

TEST FOR PHILOSOPHICAL ORTHODOXY. OVER TIME THIS PATTERN HAS

CREATED AGAIN AND AGAIN A FEDERAL JUDICIARY RICH IN DIVERSITY

AND EXPERIENCE.

BUT THE VERY REAL POSSIBILITY OF POLITICAL INTERVENTION

STILL EXISTS. PRESIDENT REAGAN HAS HAD OR WILL HAVE THE

PRIVILEGE OF APPOINTING FULLY HALF OF THE NATION'S FEDERAL

JUDGES. THE AMERICAN PEOPLE HAVE A RIGHT TO INSIST THAT IN

-14-

MAKING THOSE APPOINTMENTS HE TOO STRIVE FOR CANDIDATES OF THE

HIGHEST QUALITY EVEN THOUGH SOME OF HIS PRESIDENTIAL

PREDECESSORS HAVE DEVIATED FROM THAT STANDARD. THE JUSTICE

DEPARTMENT THEORETICALLY SHOULD OFFER THE PRESIDENT ONLY PEOPLE

WHO HAVE THE BREADTH OF MIND AND THE DIVERSITY OF EXPERIENCE TO

EQUIP THEM TO ADMINISTER JUSTICE IN THIS EVER MORE COMPLEX WORLD

- REFLECTIVE AND SCHOLARLY WOMEN OR MEN WHO HONOR AND CHERISH OUR

WAY OF LIFE BUT OFTIMES THE DEPARTMENT APPEARS STRONGLY TO

EMPHASIZE OTHER CRITERIA. INDEED PRESIDENT REAGAN APPEARS TO

ACCEPT FROM HIS ADVISORS ONLY CANDIDATES WHO FIT THE MOST RIGID

AND STAGNANT STEROTYPE OF "CONSERVATISM". CREDO APPEARS TO BE

MORE IMPORTANT TO HIM THAN TALENT EXPERIENCE AND INTELLECTUAL

CAPACITY. IF SO THAT IS WRONG JUST AS IT WAS WRONG FOR PRIOR

PRESIDENTS TO SEEK OUT THOSE DEVOTED ONLY TO "LIBERALISM". IF

SUCH PRACTICES EXIST AND REMAIN UNCHECKED FOR A SUBSTANTIAL

PERIOD THE INTELLECTUAL INTEGRITY DIVERSITY AND

INDEPENDENCE SO VITAL TO THE FEDERAL JUDICIARY IN FUTURE YEARS

UNDOUBTEDLY WILL BE CHILLED AND DIMINISHED.

-15-

QUITE OBVIOUSLY THE BUSINESS OF THE FEDERAL COURTS

SHOULD BE GREATLY EXPANDED TO PROTECT AND EXTEND BOTH ECONOMIC

AND CIVIL RIGHTS. FOR NEARLY TWO HUNDRED YEARS OF THIS NATION'S

HISTORY FEW BLACKS HISPANICS OR ASIAN-AMERICANS TO NAME

ONLY A FEW OF THE VICTIMS OF OPPRESSION WOULD HAVE THOUGHT OF

TAKING THEIR CLAIMS TO FEDERAL COURT. THEY KNEW THEY WOULD

RECEIVE NO HEARING THERE. BUT TODAY THE EXPECTATIONS OF THE

DISADVANTAGED AS WELL AS THE SENSITIVITY OF OUR SOCIETY TO

THEIR PLIGHT HAS BEEN HEIGHTENED. EVERYONE THINKS OF THE

FEDERAL COURTS AS PROTECTOR. BUT IN MANY COUNTRIES JUDGES ARE

NO MORE THAN INSTRUMENTS OF THOSE WHO HOLD POLITICAL POWER. IN

AMERICA OUR PEOPLE EXPECT COURTS TO BE A CHECK ON THAT POWER -

AND THEY TRADITIONALLY HAVE BEEN. TO CHANGE NOW SIMPLY WOULD

TURN OUR FEDERAL COURTS INTO PEOPLES COURTS COURTS OF POPULAR

WILL COURTS WHO ADMITTEDLY FOLLOW ELECTION RETURNS COURTS WHO

RESPOND FREELY TO TRANSITORY MAJORITIES ALL OF WHICH WOULD BE

AN ANATHEMA TO HISTORICAL AMERICAN CULTURE.

-16-

THE FEDERAL JUDICIARY TO ACHIEVE MAXIMUM PUBLIC

ENDORSEMENT MUST BE EVER MORE DIVERSE IN ETHNIC ORIGIN AND

POLITICAL VIEWS SO AFFIRMATIVE ACTION PROGRAMS IN JUDICIAL

APPOINTMENTS ARE INDEED REQUIRED FROM THE PRESIDENT NOW TO MAKE

THE FEDERAL JUDICIARY MORE REPRESENTATIVE OF THE POPULATION.

WOMEN TOO MUST PLAY AN IMPORTANT ROLE DEMANDING AND RECEIVING

EQUAL REPRESENTATION.

ADMITTEDLY THE VERY EFFECTIVENESS OF AN INSULATED

FEDERAL JUDGE AS A ONE-PERSON GENERATOR OF INDIVIDUAL RIGHTS IS

IN TENSION WITH OUR DEEPLY FELT RESPECT FOR DEMOCRATIC DECISION

MAKING AND OUR NATIONAL COMMITMENT TO MAJORITY RULE. A GREAT

DEAL OF THAT TENSION COULD BE RELIEVED BY THE RECOGNITION BY MOST

AMERICANS THAT SOME OF WHAT PASSES FOR MAJORITY RULE AT ANY ONE

TIME IN ANY DEMOCRACY IS IN FACT ONE TRANSIENT MINORITY OR

ANOTHER WHICH HAS MANAGED TO ATTAIN TEMPORARY POLITICAL

ASCENDANCY. TODAY NEVER MATCHES TOMORROW IN THE ATTAINMENT OF

INDIVIDUAL LIBERTY AND FREEDOM AND IT WILL NOT. ALLOWING

FEDERAL JUDGES TO CHECK SUCH A POWERFUL TRANSIENT MINORITY IN THE

-17-

NAME OF AN EXISTING CONSENSUS CONCERNING INDIVIDUAL RIGHTS IS

THUS HARDLY A SERIOUS LONG-RANGE CHALLENGE TO DEMOCRATIC

POLITICAL THEORY. INDEED IT IS THE KIND OF EXCEPTION THAT

GIVES LASTING VALIDITY TO MAJORITY RULE. THERE SHOULD BE NO

POPULAR POSITION NO PERMANENT MAJORITY WILL IN CONSTITUTIONAL

OVERSIGHT BY INDEPENDENT FEDERAL JUDGES. AMERICANS SHOULD NEVER

CONDONE A "LITMUS TEST" ON JUDICIAL CANDIDATES BY APPOINTING

AUTHORITIES IN THE SENSE THAT THOSE CANDIDATES FOR SELECTION HAVE

TO BE ON ONE SIDE OR THE OTHER OF PARTICULAR CONSTITUTIONAL

ISSUES. THE CONSTITUTION ASSURES FEDERAL JUDGES THAT THEY ARE

ABOVE THE POLITICAL FRAY AND WAY ABOVE REMOTE AND FREE FROM

A TEMPORARY MAJORITY. FEDERAL JUDGES CAN NEVER BE RESPONSIVE TO

A PARTICULAR QUADRENNIAL ELECTION TO A SO-CALLED POLITICAL

MANDATE AS IS NOW OFTEN CLAIMED TO EXIST IN CHOSEN AREAS.

PRESIDENTIAL ELECTIONS ARE NOT REFERENDUMS ON THE ADMINISTRATION

OF FEDERAL JUSTICE --NOR IN MY OPINION DO THEY LICENSE ANY

PRESIDENT OR SENATE TO RESHAPE THE CONSTITUTIONAL JUSTICE

SYSTEM BY CREATING A MONOLITHIC FEDERAL JUDICIARY.

-18-

IN ANY EVENT WHATEVER THE PRESENT POLITICAL

DIFFICULTIES FEDERAL JUDICIAL INTERPRETATION OF THE

CONSTITUTION HAS IN THE PAST THIRTY YEARS FUNCTIONED AS A

POWERFUL GENERATOR OF INDIVIDUAL RIGHTS. REVIEW OF CONGRESSIONAL

AND EXECUTIVE ACTIONS AGAINST CONSTITUTIONAL MINIMUMS IN FEDERAL

COURTS BY INDEPENDENT AND POLITICALLY INSULATED JUDGES IN THOSE

YEARS HAS RESULTED IN THE SUSTAINED ARTICULATION AND ENFORCEMENT

OF MANY THERETOFORE UNACCEPTED INDIVIDUAL RIGHTS AND

RESPONSIBILITIES THE RECOGNITION OF WHICH WOULD HAVE BEEN

INCONCEIVABLE HAD THE FEDERAL COURTS LEFT THE TASK TO THE THEN

POLITICAL MAJORITY.

SO TO ME AN INDEPENDENT IMPARTIAL FEDERAL

JUDICIARY CLEARLY IS AND REMAINS THE BULWARK AND GREATEST

HOPE OF CONTINUED FREEDOM FOR THOSE TEMPORARILY OR PERMANENTLY

OUT OF GOVERNMENTAL POWER. SO IT IS SO IT HAS BEEN AND SO IT

WILL BE OR AMERICA WILL NOT BE THE AMERICA WE HAVE KNOWN.

(THE END)

-19-

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 271

VOLUME XIX

ADDRESS OF:

CHESTERFIELD SMITH

LAWYER

HOLLAND & KNIGHT

MIAMI, FLORIDA

BEFORE:

SENIOR LAWYERS DIVISION

AMERICAN BAR ASSOCIATION

ENTITLED:

HOW LAW FIRMS (AND SPECIFICALLY

HOLLAND & KNIGHT) WILL BE

PRACTICING IN THE YEAR 2000

DATE AND TIME:

FRIDAY, NOVEMBER 14, 1986

12:30 P.M.

TWENTY MINUTES

5t- --

DURATION :

VAST CHANGES ARE UNDERWAY IN THE LEGAL BUSINESS. LAW

FIRMS ARE INCREASINGLY USING MODERN MANAGEMENT AND TECHNOLOGICAL

TOOLS. HIGH TECH LEGAL PRODUCTION COMPUTERIZED LEGAL RESEARCH

- AND ELECTRONIC WORD PROCESSING HAVE BECOME A WIDE-SPREAD

REALITY. WITHIN THE ENTIRE LEGAL PROFESSION THE INNOVATIVE

ESTABLISHMENT OF NEW FORMS FOR THE DELIVERY MARKETING AND

PRODUCTION OF LEGAL SERVICES IS THE ORDER OF THE DAY. THE VERY

SOPHISTICATED LEGAL BOUTIQUE THE HIGHLY COMPETENT SMALL

SPECIALTY FIRM THE EVER-BURGEONING HUGE INTERNATIONAL -

NATIONAL AND REGIONAL LAW FIRMS WITH MULTI-OFFICES TIED

CLOSELY TOGETHER IN AN EFFICIENTLY ORGANIZED AND CLOSELY KNIT

ELECTRONICALLY MANAGED FULL SERVICE LAW FIRM PUBLIC INTEREST

LAW FIRMS AND HIGHLY ADVERTISED STORE-FRONT LEGAL CLINICS -

CHAIN STORE STYLE ARE MORE AND MORE TAKING OVER FROM THE

TRADITIONAL LEGAL PRACTITIONER.

THE LEGAL AND PRACTICAL STRUCTURES IN WHICH LAWYERS

PRACTICE HAVE BEEN AND ARE CONTINUOUSLY CHANGING.

PARTNERSHIPS PROFESSIONAL CORPORATIONS AND ASSOCIATIONS JOINT

VENTURES NON-PROFIT CORPORATIONS GROUP-COST SHARERS,

FRANCHISEES IN-HOUSE COUNSEL ARE BURGEONING AT ANY AND ALL

LEVELS. ADVANCES IN TECHNOLOGY THE CRUSHING AVAILABILITY OF

INFORMATION THE UNABATED GROWTH OF URBANIZATION AND THE

ATTENDANT REORDERING OF LIFESTYLES HAVE MADE LAWYERING IN THIS

AGE INCREDIBLY DIFFERENT AND MUCH MORE COMPLEX.

CERTAINLY THE LAST DECADE HAS SEEN LAW FIRMS GROW AND

PROSPER. IN 1969 THERE WERE TWENTY FIRMS IN THE NATION WITH MORE

THAN A HUNDRED LAWYERS IN 1979 THERE WERE OVER A HUNDRED FIRMS

WITH THAT MANY LAWYERS. TODAY THERE ARE OVER THREE HUNDRED AND

FIFTY SUCH LAW FIRMS. THAT GROWTH IN LAW FIRM SIZE HAS BEEN

ACCOMPANIED BY STEADY MOVEMENT INTO ADDITIONAL FIELDS OF PRACTICE

- AND BY THE BRANCHING OF BOTH SMALL AND LARGE FIRMS INTO

MULTIPLE OTHER CITIES INCLUDING SUBURBAN AREAS.

TOTAL SPECIALIZATION IN THE LAW IS HERE. FOR LARGE LAW

FIRMS AND SMALL BOUTIQUE LAW FIRMS IT IS NOT COMING IT HAS

ALREADY ARRIVED. THAT INCREASED SPECIALIZATION IN THE LEGAL

PROFESSION IN MY OPINION TENDS TO BROADEN THE DEMAND FOR LAWYERS.

INSOFAR AS THE BUSINESS INDUSTRIAL AND FINANCIAL COMMUNITY IS

CONCERNED THE DAY OF THE MAGNIFICENT GENERALIST IN THE LAW -

"THE JACK-OF-ALL-TRADES" HAS BECOME A THING OF THE PAST.

LAWYERS REPRESENTING THOSE FAR FLUNG AND DIVERSE ENTERPRISES NOW

OF NECESSITY HAVE TO BE SPECIALLY TRAINED IN SPECIFIC AREAS OF

THE LAW. THAT LEGAL SPECIALIZATION BY INTENSE FAMILIARITY AND

EXCLUSIVE PRACTICE IN LIMITED LEGAL AREAS LOWERS THE FEE

DEMANDS OF LAWYERS ENABLING THEM BETTER TO COMPETE WITH OTHER

DISCIPLINES.

WITH THAT PREDICATE PERHAPS IT IS NOW ACCEPTABLE FOR

ME TO MAKE PREDICTIONS ABOUT THE WAY LAW FIRMS IN GENERAL MIGHT

BE STRUCTURED AROUND THE YEAR 2000. IN MY OPINION THE

CONFUSING DIVERSITY IN FORMS OF PRACTICE THAT NOW EXISTS WILL

CONTINUE AT LEAST IN PART AND EVEN PERHAPS GROW. VERY LARGE

NATIONAL FIRMS WILL COMPETE SIDE BY SIDE WITH VERY LARGE REGIONAL

AND EVEN VERY LARGE LOCAL FIRMS. SPECIALTY FIRMS BOUTIQUE

FIRMS WILL PROSPER BUT IN MY OPINION AT A LESSER LEVEL OF

SUCCESS THAN MOST LAWYERS NOW PREDICT. MIDDLE-SIZED FIRMS WILL

CONTINUE TO BECOME EVER LARGER AND EVERMORE SPECIALIZED. SMALL

GENERAL FIRMS A GROUPING IN WHICH I INCLUDE THE SOLE

PRACTITIONER WILL HAVE INCREASED IN NUMBERS ALMOST GEOMETRIC IN

SCALE BUT THEY WILL TEND TO SERVE ALMOST EXCLUSIVELY

INDIVIDUALS OR SMALL CLOSELY-HELD BUSINESS CLIENTS. IT WILL NOT

BE COST EFFECTIVE FOR THE LARGE OR MEGA-FIRMS TO SERVE SUCH

CLIENTS. HOWEVER I PERSONALLY HAVE LITTLE DOUBT THAT THE

LARGER LAW FIRMS BOTH REGIONAL AND NATIONAL WILL DOMINATE THE

GENERAL BUSINESS AND FINANCIAL PRACTICE OF LAW IN FLORIDA AND

ELSEWHERE. SPLIT-OFFS FROM FIRMS OF ALL SIZES WILL INCREASE A

DIRECTION THAT INEVITABLY WILL RESULT IN EVERMORE SPECIALIZED OR

BOUTIQUE FIRMS. NO LONGER WILL A RECENT LAW SCHOOL GRADUATE JOIN

A FIRM NEVER TO LEAVE SPENDING HIS OR HER ENTIRE PRACTICE

THERE. LATERAL MOVEMENT OF BOTH EXPERIENCED AND BEGINNING

LAWYERS WILL BE THE WAY OF THE DAY. THE HIGHLY COMPETENT LAWYER

WILL ON THE AVERAGE PROBABLY CHANGE HIS LEGAL AFFILIATION FOUR OR

FIVE TIMES DURING HIS OR HER PROFESSIONAL PRACTICE. THE MID-

SIZED FULL SERVICE FIRM OF THE YEAR 2000 WILL HAVE THE MOST

TROUBLE IN KEEPING UP IN COMPETING FOR DESIRABLE CLIENTS IN

MAINTAINING MARKET SHARE. SUCH FIRMS OVERALL WILL BE LESS

PROFITABLE THAN BOTH THE VERY LARGE FIRMS AND THE SPECIALTY

BOUTIQUE LAW FIRMS. THE AVERAGE LARGE FLORIDA LAW FIRM OF ABOUT

ONE HUNDRED LAWYERS TODAY WILL HAVE AROUND THREE HUNDRED LAWYERS

IN FIFTEEN YEARS AND NATIONWIDE THERE WILL BE BETWEEN TWENTY-

FIVE AND FIFTY VERY LARGE MEGA-FIRMS OF MORE THAN ONE THOUSAND

LAWYERS MOST OF WHOM WILL HAVE OFFICES IN FROM FIVE TO TEN

METROPOLITAN STATES.

CLIENTS ALREADY TODAY DEMAND THAT LAWYERS CONDUCT THEIR

PRACTICE ON A MORE BUSINESS-LIKE BASIS SO AS TO BECOME MORE

EFFICIENT AND ECONOMIC THAN IN THE PAST. INSTITUTIONAL LOYALTIES

ARE DIMINISHING. THE DRIVING FORCE BEHIND ALL THESE CHANGES IN

THE QUALITY OF LIFE IN THE LEGAL COMMUNITY IN LAW FIRM

STRUCTURE AND GOVERNANCE IN MARKETING IN RECRUITING IN

COMMUNICATIONS IN FEES AND IN LAWYER COMPENSATION IN LEGAL

AND DOCUMENT PRODUCTION IN LATERAL MOVEMENT OF LAWYERS IS

COMPETITION INTENSE MERIT COMPETITION DOG-EAT-DOG COMPETITION

- NEVER CEASING COMPETITION UNYIELDING COMPETITION -

COMPETITION BETWEEN LAW FIRMS TO GET THE BEST POSSIBLE LAWYERING

DONE IN THE MOST SATISFACTORY AND ECONOMIC WAY FOR CLIENTS AND

FOR SOCIETY AS A WHOLE.

TO BRING SOME OF THE ISSUES RAISED BY THOSE CHANGES INTO

SHARPER FOCUS I AM GOING TO TALK BRIEFLY ABOUT HOLLAND & KNIGHT

- THE LAW FIRM WHERE I PRACTICE HOW IT IS NOW AND DISCUSS

WITH YOU WAYS FORMS AND STRUCTURES WHICH MIGHT HAPPEN TO

IT IN THE FUTURE HOW IT MAY BE IN 15 YEARS. MY COMMENTS MAY

TURN OUT TO BE INACCURATE OR EVEN RIDICULOUS BUT THESE

FANTASY RUMINATIONS ARE MY OWN THEY ARE NOT TO BE ATTRIBUTED TO

THE FIRM THEY ARE GIVEN BY ME AS A FUN WAY TO TRIGGER THOUGHT

AND DISCUSSION ABOUT THE LAW FIRM OF THE FUTURE. IF MY PROPOSALS

WERE PRESENTED TO THE SEVERAL PARTNERS OF HOLLAND & KNIGHT TODAY

- THEY SURELY WOULD NOT TODAY BE ACCEPTED. INDEED THOSE PARTNERS

WOULD BE SHOCKED ALMOST CERTAINLY CONCLUDING THAT I WAS ON A

COCAINE TRIP.

I ENVISION HOLLAND & KNIGHT IN THE YEAR 2000 STILL TO BE

PRIMARILY A FLORIDA LAW FIRM WITH OFFICES GEOGRAPHICALLY

COVERING THE ENTIRE STATE AND WITH A WASHINGTON LEGAL OUTLET

DESIGNED PRIMARILY TO SERVE FLORIDA CLIENTS WITH FEDERAL LEGAL

PROBLEMS. HOLLAND & KNIGHT IN THE YEAR 2000 WILL HAVE AROUND

1,500 LAWYERS A PROJECTED CONTINUATION OF THE FIFTEEN PER CENT

ANNUAL GROWTH RATE IT HAS BEEN EXPERIENCING. ALL HOLLAND &

KNIGHT LAWYERS WILL BE MEMBERS OF THE FLORIDA BAR AND

APPROXIMATELY 300 OF THOSE WILL BE GRADUATES OF THE UNIVERSITY OF

MIAMI LAW SCHOOL. IT WILL HAVE AS FLORIDA COMPETITORS IN SIZE

AT LEAST THREE OTHER FLORIDA LAW FIRMS PERHAPS ONE OF WHICH

WILL HAVE AS MANY AS 2000 LAWYERS AND HOLLAND & KNIGHT WILL

ALSO COMPETE IN THE LARGER METROPOLITAN AREAS OF FLORIDA WITH AT

LEAST TEN OF THE VERY LARGE REGIONAL NATIONAL OR

INTERNATIONAL MEGA-FIRMS ALL OF WHOM WILL HAVE AT LEAST 200

MEMBERS OF THE FLORIDA BAR PRACTICING IN THE STATE.

FOR HOLLAND & KNIGHT MOST OF THOSE 1500 LAWYERS WILL

BE LOCATED IN ONE BIG CENTRALIZED LOCATION PERHAPS A LOW RENT

AREA BUT A PLACE WITH A HIGHLY DESIRABLE ENVIRONMENT WHERE THE

LIVING IS NICE A CITY LIKE LAKELAND LOCATED IN THE SAND HILLS

- AND ORANGE GROVES AND AROUND THE LAKES A CITY WITH ALL OF

THE AMENITIES BUT ONE WITH A VERY LOW COST OF LIVING AND A

STABLE LABOR FORCE. THE MAJOR RESEARCH AND PRODUCTION FACILITIES

OF THE ENTIRE FIRM WILL BE THERE IN LAKELAND THE MAINFRAME

COMPUTERS WESTLAW LEXIS NEXUS ALL ELECTRONIC LEGAL

RESEARCH FACILITIES A MICROFICHE LIBRARY PARAPROFESSIONALS -

LEGAL TECHNICIANS THE CLOSED FILES ALL WOULD BE HOUSED OR

MAINTAINED IN THAT CENTRAL OFFICE. AN ATTRACTIVE LIFESTYLE FOR

ALL IN THE CENTRAL OFFICE CAUSING LAWYERS AND OTHER

PROFESSIONALS TO WANT TO WORK THERE WOULD BE A PRIME AND

CONTINUING GOAL OF MANAGEMENT. THE HOLLAND & KNIGHT CENTRAL

OFFICE STAFF WOULD EMBRACE AND HOUSE PROFESSIONALS FROM

MULTIPLE DISCIPLINES OTHER THAN THE LAW SUCH AS ENGINEERS -

ECONOMISTS ARCHITECTS SURVEYORS PHYCOLOGISTS MEDICAL

DOCTORS CARTOGRAPHERS STATISTICIANS AGRONOMISTS -

HYDROLOGISTS PHYSICISTS BIOLOGISTS AND ELECTRONIC AND

COMMUNICATION SPECIALISTS. PLEASANT AND HIGH QUALITY SCHOOLS -

DELIGHTFUL HOMES AND AMPLE RECREATIONAL FACILITIES FOR

EVERYONE THERE WOULD BE MADE AVAILABLE AND MAINTAINED BY

HOLLAND & KNIGHT. LAWYERS FROM THAT CENTRAL OFFICE WILL TRAVEL

TO THE VARIOUS LAW OFFICES COURTHOUSES CITY HALLS -

ADMINISTRATIVE HEADQUARTERS GOVERNMENTAL OFFICES LOCATED

THROUGHOUT THE STATE UTILIZING EITHER HELICOPTERS AIRPLANES -

OR AUTOMOBILES TO TRY CASES TO TAKE DEPOSITIONS TO ENGAGE

IN ADVERSARIAL RELATIONSHIPS AT ALL LEVELS TO NEGOTIATE TO

COUNSEL AND TO CLOSE TRANSACTIONS. EVERY KIND OF LEGAL

SPECIALIZATION KNOWN TO THE FIRM WILL BE ORGANIZED IN THAT

CENTRAL OFFICE IN TEAMS GROUPS AND DIVISIONS. PRODUCING

AND WORKING IN A HIGHLY INTEGRATED BUT TOTALLY PLEASANT WORK

ENVIRONMENT.

A FIRM CLIENT WILL NEVER VISIT THAT CENTRAL OFFICE -

CLIENTS WILL NOT BE ALLOWED. BUT THAT CENTRAL OFFICE WILL BE

ELECTRONICALLY CONNECTED WITH THE TEN OR FIFTEEN CLIENT OFFICES

LOCATED THROUGHOUT FLORIDA EACH OF WHICH WILL HAVE TWENTY-FIVE

TO FIFTY LAWYERS. THE LAWYERS IN THOSE CLIENT OFFICES PRIMARILY

WILL BE INVOLVED IN LEGAL WORK FOR EXISTING FIRM CLIENTS AND

ALSO WITH THE TOTAL SOCIAL ECONOMIC AND POLITICAL LIFE OF THE

ENTIRE GEOGRAPHIC REGION WHERE THE PARTICULAR CLIENT OFFICE IS

LOCATED. THEY WILL BE EXPERIENCED AND HIGHLY TRAINED LAWYERS -

ABLE TO ATTRACT LEGAL BUSINESS AND PROFICIENT IN COUNSELING

FIRM CLIENTS IN THE HIGHEST AND BEST TRADITIONS OF THE HONORED

GENERAL PRACTITIONER. AN INSTITUTIONAL FIRM CLIENT WITH

SUBSTANTIAL RECURRING AND MASSIVE LEGAL PROBLEMS WILL HAVE

CONTACTS WITH SEVERAL CLIENT OFFICES THROUGHOUT FLORIDA OR

MAYBE ALL OF THEM. AS A USUAL MATTER THE HOLLAND & KNIGHT

LAWYER STATIONED IN A CLIENT OFFICE WILL ADVISE COUNSEL AND

CONSULT WITH A PARTICULAR CLIENT AND IF THAT CLIENT HAS

SPECIFIC LEGAL DEMANDS THEN HELP MEET THAT CLIENT'S NEEDS BY

UTILIZING AN APPROPRIATE LEGAL SPECIALTY LAWYER GROUP OR TEAM

IN THE CENTRAL OFFICE. FOR EXAMPLE A PARTICULAR DADE COUNTY

CLIENT AND A CLIENT LAWYER LOCATED IN A HOLLAND & KNIGHT

CLIENT'S OFFICE IN MIAMI MAY TALK BY TELECONFERENCE FIRST ABOUT

-10-

THE CLIENT'S PROBLEMS WITH A TRIAL GROUP LOCATED IN THE CENTRAL

OFFICE. WHEN THE LITIGATION TELECONFERENCE IS THROUGH THE

CLIENT AND THE CLIENT LAWYER THEN MAY CLARIFY WITH A

SPECIALIST IN THE CENTRAL OFFICE TAX ASPECTS OF THE CLIENT'S

MATTER. LASTLY THE CLIENT AND THE CLIENT'S LAWYER MAY

CONFER BY TELECONFERENCE WITH A CENTRAL OFFICE SPECIALIST ON THE

SECURITIES AND CORPORATE ASPECTS. ALL OF THAT AND THE

RESULTING LEGAL PRODUCT INCLUDING CONTRACTS PLEADINGS -

BRIEFS OPINIONS OR BUSINESS OR CORPORATE DOCUMENTS WILL BE

PRODUCED BY THE CENTRAL OFFICE AND DELIVERED TO THE CLIENT

SITTING FAR AWAY IN A CLIENT OFFICE. LEGAL PAPERS WILL WHIZ

ELECTRONICALLY BACK AND FORTH INSTANTANEOUSLY BY LASER TECHNOLOGY

FROM THE CENTRAL OFFICE TO THE SEVERAL CLIENT OFFICES LOCATED

THROUGHOUT THE STATE AND WHEN DESIRABLE FROM CLIENT OFFICE TO

CLIENT OFFICE. MAJOR AND CONTINUING CLIENTS WILL HAVE THEIR OWN

IN-HOUSE TELECONFERENCE SCREENS SO THAT THEY CAN CONTACT THOSE

LAWYERS WORKING FOR THEM IN THE HOLLAND & KNIGHT CENTRAL OFFICE

ABOUT THEIR LEGAL PROBLEMS WITHOUT VISITING THE HOLLAND & KNIGHT

-11-

CLIENT'S OFFICE. INDEED ONCE AN ATTORNEY-CLIENT CONNECTION HAS

BEEN ESTABLISHED BY A PARTICULAR CLIENT WITH A PARTICULAR

SPECIALIST IN THE HOLLAND & KNIGHT CENTRAL OFFICE BY

TELECONFERENCE FACILITIES THE CLIENT OFTEN THEREAFTER WILL BY-

PASS THE HOLLAND & KNIGHT CLIENT LAWYER AND GO DIRECTLY TO THE

SPECIALIST IN THE HOLLAND & KNIGHT CENTRAL OFFICE.

THE HOLLAND & KNIGHT CLIENT OFFICES LOCATED IN AT MOST

TEN TO FIFTEEN METROPOLITAN AREAS WOULD HOUSE PRIMARILY SENIOR

LAWYERS OR THOSE ESPECIALLY TRAINED OR QUALIFIED IN COUNSELING -

BUT THERE ALSO WILL BE A SUBSTANTIAL NUMBER OF BEGINNING OR LESS

EXPERIENCED LAWYERS ASSIGNED THERE TOO. IN ADDITION TO THE

PERFORMANCE OF NORMAL CLIENT LEGAL SERVICES ALL LAWYERS IN THE

CLIENT OFFICES WILL BE CONTINUOUSLY INVOLVED IN COMMUNITY SERVICE

- PRO BONO TYPE LAW ACTIVITIES ACTIVITIES OF THE ORGANIZED BAR

- AND PERHAPS ABOVE ALL CLIENT DEVELOPMENT AND MARKETING.

THERE WOULD BE EXTENSIVE LEGAL WORK PERFORMED FOR CLIENTS BY THE

LAWYERS IN THE HOLLAND & KNIGHT CLIENT OFFICES ABOUT THE SAME

AMOUNT AND DONE IN THE SAME WAY THAT LEGAL SERVICES ARE NOW

-12-

PERFORMED IN THE HOLLAND & KNIGHT MIAMI OFFICE EACH CLIENT

OFFICE WOULD BE EQUIPPED WITH SEVERAL LARGE THREE-SIDED

TELECONFERENCE ROOMS TWELVE OR FIFTEEN SMALL CLIENT CONFERENCE

ROOMS ONE SMALL AUDITORIUM CAPABLE OF SEATING TWO TO FOUR

HUNDRED PEOPLE SPECIAL FACILITIES FOR ENTERTAINMENT EXTENSIVE

RESOURCES FOR MARKETING AND MARKETING PRESENTATIONS. IT WOULD

HAVE NO TYPEWRITERS NO LIBRARY BOOKS AND NO FINANCIAL OR

ACCOUNTING FACILITIES. PERHAPS SUCH HOLLAND & KNIGHT OFFICES

WILL AT LEAST INITIALLY BE LOCATED IN MIAMI FORT LAUDERDALE

- WEST PALM BEACH FORT MYERS BRADENTON-SARASOTA TAMPA-ST.

PETERSBURG-CLEARWATER LAKELAND ORLANDO DAYTONA BEACH -

JACKSONVILLE GAINESVILLE TALLAHASSEE PENSACOLA AND THE

DISTRICT OF COLUMBIA.

THE FOREGOING RECITAL OF HOLLAND & KNIGHT'S OPERATION IN

THE YEAR 2000 IS QUITE OBVIOUSLY AN OVER-SIMPLIFICATION. IF IT

IS EVER IMPLEMENTED AND REFINED THERE MANIFESTLY IS BOTH GOOD

AND BAD IN IT. A HOLLAND & KNIGHT CENTRAL OFFICE OF 1000 IN

LAKELAND COULD MEAN THAT A LOT OF LAWYERS WILL BE LEFT IN A DEEP

-13-

PROFESSIONAL HOLE IN THE MINDS OF SOME BECOMING ALMOST LIKE

FACTORY PRODUCTION WORKERS. BUT THOSE LAWYERS IN THE CENTRAL

OFFICE CAN IF THEY WISH ALSO HAVE A LEISURELY LIFE AT THEIR

OWN PACE AND WITH THEIR OWN ECONOMICS AND SOCIAL GOALS COME

TO WORK IF THEY WISH AT 6:00 IN THE MORNING AND WORK THROUGH TO

2:00 P.M. OR AT 6:00 IN THE EVENING AND WORK TO 2:00 A.M. -

HAVING TIME OFF EVERYDAY TO FISH OR PLAY TENNIS OR GOLF OR

DO THEIR OWN THING WHATEVER. THEY CAN WRITE OR FARM OR BE

ENTREPRENEURS. THEY CAN FLY OR SWIM OR READ AND REST. THERE

ARE SUCH LAWYERS IN THE WORLD THOSE WHO WANT TO DO SOMETHING

BESIDE THE 10 HOURS A DAY SEVEN DAYS A WEEK LIFE NOW PURSUED BY

SO MANY LAWYERS.

GOOD THINGS FOR HOLLAND & KNIGHT AND ITS CLIENTS -

COMING OUT OF SUCH AN ARRANGEMENT WILL BE OVERWHELMING. LEGAL

TRAINING AND QUALITY CONTROL WOULD BE A PURIST EXPERIENCE -

BEAUTIFUL. ALL OF THE UNNECESSARY INVOLVEMENT THAT MOST LAWYERS

HAVE WITH NUISANCE CLIENTS WILL BE MITIGATED OR EVEN ELIMINATED.

THE NORMAL SPECIALIST WOULDN'T HAVE TO WORRY ABOUT THE MULTIPLE

-14-

THINGS INVOLVED IN LAW PRACTICE IN WHICH THAT LAWYER HAS

ABSOLUTELY NO INTEREST ADMINISTRATION RECRUITING MARKETING.

IF A LAWYER CARED MORE ABOUT A STAMP COLLECTION THAN WORKING ON

FIRM COMMITTEES IT WOULD BE ARRANGED FOR THAT LAWYER IN THE

CENTRAL OFFICE NOT TO WORK ON THE FIRM COMMITTEE. ALL

ADMINISTRATIVE CHORES MANAGEMENT ACCOUNTING BILLING -

CONFLICT CHECKS FINANCES RECRUITING EVALUATING MARKETING

- WILL BE CENTRALIZED AND HANDLED BY NON-LAWYERS. MASSIVE

RESOURCES TO MEET ALL NEEDS WILL BE READILY AVAILABLE. WORK

LOADS WILL BE BALANCED. THE HUMAN POWER THE MEN AND WOMEN

LAWYERS THE PROFESSIONAL DISCIPLINES AND SPECIALTIES ALL WILL

DISTRIBUTE THEIR SPECIALIZED WORK ASSIGNMENTS IN THE CENTRAL

OFFICE EQUALLY AMONG THEMSELVES. IN THE CENTRAL OFFICE -

EVERYONE WILL NORMALLY BE IN THE OFFICE USING NORMALLY THE

TELECONFERENCE FACILITIES INSTEAD OF TRAVEL. AND I REITERATE A

CLIENT WILL NEVER NEVER VISIT THE HOLLAND & KNIGHT CENTRAL

OFFICE.

-15-

HOLLAND & KNIGHT CURRENTLY HAS AN OFFICE IN LAKELAND IN

WHICH OUR MAINFRAME COMPUTERS ARE LOCATED. ABOUT SIXTY PEOPLE

WORK THERE NONE OF WHOM ARE LAWYERS. WE NOW PAY $5.75 A SQUARE

FOOT RENT CONTRASTED WITH $25 A SQUARE FOOT FOR RENT IN MIAMI.

IF THE MAINFRAME COMPUTER WAS NOW IN THE MIAMI OFFICE A LOT OF

RENT MONEY WOULD BE SPENT THAT WE DON'T NOW SPEND AND THE

SERVICE WE GET FROM LAKELAND NOW IS JUST AS GOOD FOR OUR PURPOSES

AS IF THE LAKELAND FACILITIES WERE LOCATED IN THE MIAMI OFFICE.

WITH THAT HOLLAND & KNIGHT CENTRAL OFFICE CONCEPT -

ECONOMICS IN LAW OFFICE OPERATIONS WILL BE MULTIPLIED BY HAVING

EVERYTHING CENTRALIZED AND MASSED. AS YOU SAVE IN RENT YOU

WILL ALSO SAVE IN SECRETARIAL OR WORD PROCESSING COST AND

HUNDREDS OF OTHER WAYS. ALL FACILITIES FOR QUALITY CONTROL -

MANAGEMENT TRAINING MARKETING ACCOUNTING PERSONNEL -

RECRUITING CONFLICT AVOIDANCE LEGAL RESEARCH ARE LOCATED AT

THE MOST ECONOMICAL AND EFFICIENT LOCATION WITHOUT REGARD TO

WHERE FIRM CLIENTS ARE LOCATED.

-16-

PERHAPS THE ONLY THING THAT PREVENTS HOLLAND & KNIGHT

FROM UTILIZING TELECOMMUNICATIONS BETWEEN ITS EXISTING OFFICES IN

THAT WAY.AT THE PRESENT TIME IS THE MASSIVE INFUSION OF CAPITAL

WHICH IS REQUIRED WITHOUT PROVEN ECONOMIC RETURN.

TELECONFERENCE COMMUNICATIONS ARE NOW TECHNICALLY FEASIBLE BUT

STILL VERY EXPENSIVE. HOLLAND & KNIGHT WOULD NEED SEVERAL

TELECONFERENCE FACILITIES IN EACH OFFICE WITH AT LEAST TWELVE

STATE-WIDE OFFICES WHICH WOULD MEAN A PRESENT OUTLAY OF BETWEEN

FIVE MILLION AND EIGHT MILLION DOLLARS. NOT SURPRISINGLY -

HOLLAND & KNIGHT HAS NOT CONCLUDED TO DO THAT NOW.

THERE IT IS THE ARRANGEMENT IS NOT NECESSARILY PRETTY

OR PLEASING TO ANY LAWYER PARTICULARLY AN OLDER ONE. IT IS NOT

TO MY PERSONAL LIKING BUT IT ALREADY IS TECHNICALLY POSSIBLE -

AND THE TREND UNDOUBTEDLY IS NOW THAT WAY. OUR COMPETITION -

LAWYERS EVERYWHERE AND HOLLAND & KNIGHT CLIENTS WILL HELP US

DECIDE IN TIME WHETHER THE ARRANGEMENT I HAVE DESCRIBED IS AN

ACCEPTABLE ONE OR THE BEST ONE AND IF SO WE THEN WILL START

TO SHAPE AND BLOCK OUT AND DIRECT ITS IMPLEMENTATION WITH AN

-17-

EXHAUSTIVE VIEW TO PRESERVING THE BEST OF THE TRADITIONAL LEGAL

PRACTICE. IF THE PAST IS THE FUTURE WE AT HOLLAND & KNIGHT -

WILL THEN WORRY AND FUSS AND FIGHT AND DEBATE AND REFINE

- AND EXPERIMENT AND IMPROVE IT FOR FIFTEEN YEARS AND THEN

PROBABLY DISCARD IT MOVING THE ENTIRE OPERATION BACK TO POLK

COUNTY.

(THANK YOU)

i?

-18-

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 272

VOLUME XIX

ADDRESS OF:

CHESTERFIELD SMITH

LAWYER

HOLLAND & KNIGHT

MIAMI, FLORIDA

BEFORE:

HOMECOMING BREAKFAST

UNIVERSITY OF MIAMI

SCHOOL OF LAW

ENTITLED:

HOW LAW FIRMS (AND SPECIFICALLY

HOLLAND & KNIGHT) WILL BE

PRACTICING IN THE YEAR 2000

DATE AND TIME:

SATURDAY, NOVEMBER 15, 1986

8:30 A.M.

TWENTY MINUTES

D-Th

DURATION:

VAST CHANGES ARE UNDERWAY IN THE LEGAL BUSINESS. LAW

FIRMS ARE INCREASINGLY USING MODERN MANAGEMENT AND TECHNOLOGICAL

TOOLS. HIGH TECH LEGAL PRODUCTION COMPUTERIZED LEGAL RESEARCH

AND ELECTRONIC WORD PROCESSING HAVE BECOME A WIDE-SPREAD

REALITY. WITHIN THE ENTIRE LEGAL PROFESSION THE INNOVATIVE

ESTABLISHMENT OF NEW FORMS FOR THE DELIVERY MARKETING AND

PRODUCTION OF LEGAL SERVICES IS THE ORDER OF THE DAY. THE VERY

SOPHISTICATED LEGAL BOUTIQUE THE HIGHLY COMPETENT SMALL

SPECIALTY FIRM THE EVER-BURGEONING HUGE INTERNATIONAL -

NATIONAL AND REGIONAL LAW FIRMS WITH MULTI-OFFICES TIED

CLOSELY TOGETHER IN AN EFFICIENTLY ORGANIZED AND CLOSELY KNIT

ELECTRONICALLY MANAGED FULL SERVICE LAW FIRM PUBLIC INTEREST

LAW FIRMS AND HIGHLY ADVERTISED STORE-FRONT LEGAL CLINICS -

CHAIN STORE STYLE ARE MORE AND MORE TAKING OVER FROM THE

TRADITIONAL LEGAL PRACTITIONER.

THE LEGAL AND PRACTICAL STRUCTURES IN WHICH LAWYERS

PRACTICE HAVE BEEN AND ARE CONTINUOUSLY CHANGING.

PARTNERSHIPS PROFESSIONAL CORPORATIONS AND ASSOCIATIONS JOINT

VENTURES NON-PROFIT CORPORATIONS GROUP-COST SHARERS,

FRANCHISEES IN-HOUSE COUNSEL ARE BURGEONING AT ANY AND ALL

LEVELS. ADVANCES IN TECHNOLOGY THE CRUSHING AVAILABILITY OF

INFORMATION THE UNABATED GROWTH OF URBANIZATION AND THE

ATTENDANT REORDERING OF LIFESTYLES HAVE MADE LAWYERING IN THIS

AGE INCREDIBLY DIFFERENT AND MUCH MORE COMPLEX.

CERTAINLY THE LAST DECADE HAS SEEN LAW FIRMS GROW AND

PROSPER. IN 1969 THERE WERE TWENTY FIRMS IN THE NATION WITH MORE

THAN A HUNDRED LAWYERS IN 1979 THERE WERE OVER A HUNDRED FIRMS

WITH THAT MANY LAWYERS. TODAY THERE ARE OVER THREE HUNDRED AND

FIFTY SUCH LAW FIRMS. THAT GROWTH IN LAW FIRM SIZE HAS BEEN

ACCOMPANIED BY STEADY MOVEMENT INTO ADDITIONAL FIELDS OF PRACTICE

- AND BY THE BRANCHING OF BOTH SMALL AND LARGE FIRMS INTO

MULTIPLE OTHER CITIES INCLUDING SUBURBAN AREAS.

TOTAL SPECIALIZATION IN THE LAW IS HERE. FOR LARGE LAW

FIRMS AND SMALL BOUTIQUE LAW FIRMS IT IS NOT COMING IT HAS

ALREADY ARRIVED. THAT INCREASED SPECIALIZATION IN THE LEGAL

PROFESSION IN MY OPINION TENDS TO BROADEN THE DEMAND FOR LAWYERS.

INSOFAR AS THE BUSINESS INDUSTRIAL AND FINANCIAL COMMUNITY IS

CONCERNED THE DAY OF THE MAGNIFICENT GENERALIST IN THE LAW -

"THE JACK-OF-ALL-TRADES" HAS BECOME A THING OF THE PAST.

LAWYERS REPRESENTING THOSE FAR FLUNG AND DIVERSE ENTERPRISES NOW

OF NECESSITY HAVE TO BE SPECIALLY TRAINED IN SPECIFIC AREAS OF

THE LAW. THAT LEGAL SPECIALIZATION BY INTENSE FAMILIARITY AND

EXCLUSIVE PRACTICE IN LIMITED LEGAL AREAS LOWERS THE FEE

DEMANDS OF LAWYERS ENABLING THEM BETTER TO COMPETE WITH OTHER

DISCIPLINES.

WITH THAT PREDICATE PERHAPS IT IS NOW ACCEPTABLE FOR

ME TO MAKE PREDICTIONS ABOUT THE WAY LAW FIRMS IN GENERAL MIGHT

BE STRUCTURED AROUND THE YEAR 2000. IN MY OPINION THE

CONFUSING DIVERSITY IN FORMS OF PRACTICE THAT NOW EXISTS WILL

CONTINUE AT LEAST IN PART AND EVEN PERHAPS GROW. VERY LARGE

NATIONAL FIRMS WILL COMPETE SIDE BY SIDE WITH VERY LARGE REGIONAL

AND EVEN VERY LARGE LOCAL FIRMS. SPECIALTY FIRMS BOUTIQUE

FIRMS WILL PROSPER BUT IN MY OPINION AT A LESSER LEVEL OF

SUCCESS THAN MOST LAWYERS NOW PREDICT. MIDDLE-SIZED FIRMS WILL

CONTINUE TO BECOME EVER LARGER AND EVERMORE SPECIALIZED. SMALL

GENERAL FIRMS A GROUPING IN WHICH 1 INCLUDE THE SOLE

PRACTITIONER WILL HAVE INCREASED IN NUMBERS ALMOST GEOMETRIC IN

SCALE BUT THEY WILL TEND TO SERVE ALMOST EXCLUSIVELY

INDIVIDUALS OR SMALL CLOSELY-HELD BUSINESS CLIENTS. IT WILL NOT

BE COST EFFECTIVE FOR THE LARGE OR MEGA-FIRMS TO SERVE SUCH

CLIENTS. HOWEVER I PERSONALLY HAVE LITTLE DOUBT THAT THE

LARGER LAW FIRMS BOTH REGIONAL AND NATIONAL WILL DOMINATE THE

GENERAL BUSINESS AND FINANCIAL PRACTICE OF LAW IN FLORIDA AND

ELSEWHERE. SPLIT-OFFS FROM FIRMS OF ALL SIZES WILL INCREASE A

DIRECTION THAT INEVITABLY WILL RESULT IN EVERMORE SPECIALIZED OR

BOUTIQUE FIRMS. NO LONGER WILL A RECENT LAW SCHOOL GRADUATE JOIN

A FIRM NEVER TO LEAVE SPENDING HIS OR HER ENTIRE PRACTICE

THERE. LATERAL MOVEMENT OF BOTH EXPERIENCED AND BEGINNING

LAWYERS WILL BE THE WAY OF THE DAY. THE HIGHLY COMPETENT LAWYER

WILL ON THE AVERAGE PROBABLY CHANGE HIS LEGAL AFFILIATION FOUR OR

FIVE TIMES DURING HIS OR HER PROFESSIONAL PRACTICE. THE MID-

SIZED FULL SERVICE FIRM OF THE YEAR 2000 WILL HAVE THE MOST

TROUBLE IN KEEPING UP IN COMPETING FOR DESIRABLE CLIENTS IN

MAINTAINING MARKET SHARE. SUCH FIRMS OVERALL WILL BE LESS

PROFITABLE THAN BOTH THE VERY LARGE FIRMS AND THE SPECIALTY

BOUTIQUE LAW FIRMS. THE AVERAGE LARGE FLORIDA LAW FIRM OF ABOUT

ONE HUNDRED LAWYERS TODAY WILL HAVE AROUND THREE HUNDRED LAWYERS

IN FIFTEEN YEARS AND NATIONWIDE THERE WILL BE BETWEEN TWENTY-

FIVE AND FIFTY VERY LARGE MEGA-FIRMS OF MORE THAN ONE THOUSAND

LAWYERS MOST OF WHOM WILL HAVE OFFICES IN FROM FIVE TO TEN

METROPOLITAN STATES.

CLIENTS ALREADY TODAY DEMAND THAT LAWYERS CONDUCT THEIR

PRACTICE ON A MORE BUSINESS-LIKE BASIS SO AS TO BECOME MORE

EFFICIENT AND ECONOMIC THAN IN THE PAST. INSTITUTIONAL LOYALTIES

ARE DIMINISHING. THE DRIVING FORCE BEHIND ALL THESE CHANGES IN

THE QUALITY OF LIFE IN THE LEGAL COMMUNITY IN LAW FIRM

STRUCTURE AND GOVERNANCE IN MARKETING IN RECRUITING IN

COMMUNICATIONS IN FEES AND IN LAWYER COMPENSATION IN LEGAL

AND DOCUMENT PRODUCTION IN LATERAL MOVEMENT OF LAWYERS IS

COMPETITION INTENSE MERIT COMPETITION DOG-EAT-DOG COMPETITION

- NEVER CEASING COMPETITION UNYIELDING COMPETITION -

COMPETITION BETWEEN LAW FIRMS TO GET THE BEST POSSIBLE LAWYERING

DONE IN THE MOST SATISFACTORY AND ECONOMIC WAY FOR CLIENTS AND

FOR SOCIETY AS A WHOLE.

TO BRING SOME OF THE ISSUES RAISED BY THOSE CHANGES INTO

SHARPER FOCUS I AM GOING TO TALK BRIEFLY ABOUT HOLLAND & KNIGHT

- THE LAW FIRM WHERE I PRACTICE HOW IT IS NOW AND DISCUSS

WITH YOU WAYS FORMS AND STRUCTURES WHICH MIGHT HAPPEN TO

IT IN THE FUTURE HOW IT MAY BE IN 15 YEARS. MY COMMENTS MAY

TURN OUT TO BE INACCURATE OR EVEN RIDICULOUS BUT THESE

FANTASY RUMINATIONS ARE MY OWN THEY ARE NOT TO BE ATTRIBUTED TO

THE FIRM THEY ARE GIVEN BY ME AS A FUN WAY TO TRIGGER THOUGHT

AND DISCUSSION ABOUT THE LAW FIRM OF THE FUTURE. IF MY PROPOSALS

WERE PRESENTED TO THE SEVERAL PARTNERS OF HOLLAND & KNIGHT TODAY

- THEY SURELY WOULD NOT TODAY BE ACCEPTED. INDEED THOSE PARTNERS

WOULD BE SHOCKED ALMOST CERTAINLY CONCLUDING THAT I WAS ON A

COCAINE TRIP.

I ENVISION HOLLAND & KNIGHT IN THE YEAR 2000 STILL TO BE

PRIMARILY A FLORIDA LAW FIRM WITH OFFICES GEOGRAPHICALLY

COVERING THE ENTIRE STATE AND WITH A WASHINGTON LEGAL OUTLET

DESIGNED PRIMARILY TO SERVE FLORIDA CLIENTS WITH FEDERAL LEGAL

PROBLEMS. HOLLAND & KNIGHT IN THE YEAR 2000 WILL HAVE AROUND

1,500 LAWYERS A PROJECTED CONTINUATION OF THE FIFTEEN PER CENT

ANNUAL GROWTH RATE IT HAS BEEN EXPERIENCING. ALL HOLLAND &

KNIGHT LAWYERS WILL BE MEMBERS OF THE FLORIDA BAR AND

APPROXIMATELY 300 OF THOSE WILL BE GRADUATES OF THE UNIVERSITY OF

MIAMI LAW SCHOOL. IT WILL HAVE AS FLORIDA COMPETITORS IN SIZE

- AT LEAST THREE OTHER FLORIDA LAW FIRMS PERHAPS ONE OF WHICH

WILL HAVE AS MANY AS 2000 LAWYERS AND HOLLAND & KNIGHT WILL

ALSO COMPETE IN THE LARGER METROPOLITAN AREAS OF FLORIDA WITH AT

LEAST TEN OF THE VERY LARGE REGIONAL NATIONAL OR

INTERNATIONAL MEGA-FIRMS ALL OF WHOM WILL HAVE AT LEAST 200

MEMBERS OF THE FLORIDA BAR PRACTICING IN THE STATE.

FOR HOLLAND & KNIGHT MOST OF THOSE 1500 LAWYERS WILL

BE LOCATED IN ONE BIG CENTRALIZED LOCATION PERHAPS A LOW RENT

AREA BUT A PLACE WITH A HIGHLY DESIRABLE ENVIRONMENT WHERE THE

LIVING IS NICE A CITY LIKE LAKELAND LOCATED IN THE SAND HILLS

- AND ORANGE GROVES AND AROUND THE LAKES A CITY WITH ALL OF

THE AMENITIES BUT ONE WITH A VERY LOW COST OF LIVING AND A

STABLE LABOR FORCE. THE MAJOR RESEARCH AND PRODUCTION FACILITIES

OF THE ENTIRE FIRM WILL BE THERE IN LAKELAND THE MAINFRAME

COMPUTERS WESTLAW LEXIS NEXUS ALL ELECTRONIC LEGAL

RESEARCH FACILITIES A MICROFICHE LIBRARY PARAPROFESSIONALS -

LEGAL TECHNICIANS THE CLOSED FILES ALL WOULD BE HOUSED OR

MAINTAINED IN THAT CENTRAL OFFICE. AN ATTRACTIVE LIFESTYLE FOR

ALL IN THE CENTRAL OFFICE CAUSING LAWYERS AND OTHER

PROFESSIONALS TO WANT TO WORK THERE WOULD BE A PRIME AND

CONTINUING GOAL OF MANAGEMENT. THE HOLLAND & KNIGHT CENTRAL

OFFICE STAFF WOULD EMBRACE AND HOUSE PROFESSIONALS FROM

MULTIPLE DISCIPLINES OTHER THAN THE LAW SUCH AS ENGINEERS -

ECONOMISTS ARCHITECTS SURVEYORS PHYCOLOGISTS MEDICAL

DOCTORS CARTOGRAPHERS STATISTICIANS AGRONOMISTS -

HYDROLOGISTS PHYSICISTS BIOLOGISTS AND ELECTRONIC AND

COMMUNICATION SPECIALISTS. PLEASANT AND HIGH QUALITY SCHOOLS -

DELIGHTFUL HOMES AND AMPLE RECREATIONAL FACILITIES FOR

EVERYONE THERE WOULD BE MADE AVAILABLE AND MAINTAINED BY

HOLLAND & KNIGHT. LAWYERS FROM THAT CENTRAL OFFICE WILL TRAVEL

TO THE VARIOUS LAW OFFICES COURTHOUSES CITY HALLS -

ADMINISTRATIVE HEADQUARTERS GOVERNMENTAL OFFICES LOCATED

THROUGHOUT THE STATE UTILIZING EITHER HELICOPTERS AIRPLANES -

OR AUTOMOBILES TO TRY CASES TO TAKE DEPOSITIONS TO ENGAGE

IN ADVERSARIAL RELATIONSHIPS AT ALL LEVELS TO NEGOTIATE TO

COUNSEL AND TO CLOSE TRANSACTIONS. EVERY KIND OF LEGAL

SPECIALIZATION KNOWN TO THE FIRM WILL BE ORGANIZED IN THAT

CENTRAL OFFICE IN TEAMS GROUPS AND DIVISIONS. PRODUCING

AND WORKING IN A HIGHLY INTEGRATED BUT TOTALLY PLEASANT WORK

ENVIRONMENT.

A FIRM CLIENT WILL NEVER VISIT THAT CENTRAL OFFICE -

CLIENTS WILL NOT BE ALLOWED. BUT THAT CENTRAL OFFICE WILL BE

ELECTRONICALLY CONNECTED WITH THE TEN OR FIFTEEN CLIENT OFFICES

LOCATED THROUGHOUT FLORIDA EACH OF WHICH WILL HAVE TWENTY-FIVE

TO FIFTY LAWYERS. THE LAWYERS IN THOSE CLIENT OFFICES PRIMARILY

WILL BE INVOLVED IN LEGAL WORK FOR EXISTING FIRM CLIENTS AND

ALSO WITH THE TOTAL SOCIAL ECONOMIC AND POLITICAL LIFE OF THE

ENTIRE GEOGRAPHIC REGION WHERE THE PARTICULAR CLIENT OFFICE IS

LOCATED. THEY WILL BE EXPERIENCED AND HIGHLY TRAINED LAWYERS -

ABLE TO ATTRACT LEGAL BUSINESS AND PROFICIENT IN COUNSELING

FIRM CLIENTS IN THE HIGHEST AND BEST TRADITIONS OF THE HONORED

GENERAL PRACTITIONER. AN INSTITUTIONAL FIRM CLIENT WITH

SUBSTANTIAL RECURRING AND MASSIVE LEGAL PROBLEMS WILL HAVE

CONTACTS WITH SEVERAL CLIENT OFFICES THROUGHOUT FLORIDA OR

MAYBE ALL OF THEM. AS A USUAL MATTER THE HOLLAND & KNIGHT

LAWYER STATIONED IN A CLIENT OFFICE WILL ADVISE COUNSEL AND

CONSULT WITH A PARTICULAR CLIENT AND IF THAT CLIENT HAS

SPECIFIC LEGAL DEMANDS THEN HELP MEET THAT CLIENT'S NEEDS BY

UTILIZING AN APPROPRIATE LEGAL SPECIALTY LAWYER GROUP OR TEAM

IN THE CENTRAL OFFICE. FOR EXAMPLE A PARTICULAR DADE COUNTY

CLIENT AND A CLIENT LAWYER LOCATED IN A HOLLAND & KNIGHT

CLIENT'S OFFICE IN MIAMI MAY TALK BY TELECONFERENCE FIRST ABOUT

-10-

THE CLIENT'S PROBLEMS WITH A TRIAL GROUP LOCATED IN THE CENTRAL

OFFICE. WHEN THE LITIGATION TELECONFERENCE IS THROUGH THE

CLIENT AND THE CLIENT LAWYER THEN MAY CLARIFY WITH A

SPECIALIST IN THE CENTRAL OFFICE TAX ASPECTS OF THE CLIENT'S

MATTER. LASTLY THE CLIENT AND THE CLIENT'S LAWYER MAY

CONFER BY TELECONFERENCE WITH A CENTRAL OFFICE SPECIALIST ON THE

SECURITIES AND CORPORATE ASPECTS. ALL OF THAT AND THE

RESULTING LEGAL PRODUCT INCLUDING CONTRACTS PLEADINGS -

BRIEFS OPINIONS OR BUSINESS OR CORPORATE DOCUMENTS WILL BE

PRODUCED BY THE CENTRAL OFFICE AND DELIVERED TO THE CLIENT

SITTING FAR AWAY IN A CLIENT OFFICE. LEGAL PAPERS WILL WHIZ

ELECTRONICALLY BACK AND FORTH INSTANTANEOUSLY BY LASER TECHNOLOGY

FROM THE CENTRAL OFFICE TO THE SEVERAL CLIENT OFFICES LOCATED

THROUGHOUT THE STATE AND WHEN DESIRABLE FROM CLIENT OFFICE TO

CLIENT OFFICE. MAJOR AND CONTINUING CLIENTS WILL HAVE THEIR OWN

IN-HOUSE TELECONFERENCE SCREENS SO THAT THEY CAN CONTACT THOSE

LAWYERS WORKING FOR THEM IN THE HOLLAND & KNIGHT CENTRAL OFFICE

ABOUT THEIR LEGAL PROBLEMS WITHOUT VISITING THE HOLLAND & KNIGHT

-11-

CLIENT'S OFFICE. INDEED ONCE AN ATTORNEY-CLIENT CONNECTION HAS

BEEN ESTABLISHED BY A PARTICULAR CLIENT WITH A PARTICULAR

SPECIALIST IN THE HOLLAND & KNIGHT CENTRAL OFFICE BY

TELECONFERENCE FACILITIES THE CLIENT OFTEN THEREAFTER WILL BY-

PASS THE HOLLAND & KNIGHT CLIENT LAWYER AND GO DIRECTLY TO THE

SPECIALIST IN THE HOLLAND & KNIGHT CENTRAL OFFICE.

THE HOLLAND & KNIGHT CLIENT OFFICES LOCATED IN AT MOST

TEN TO FIFTEEN METROPOLITAN AREAS WOULD HOUSE PRIMARILY SENIOR

LAWYERS OR THOSE ESPECIALLY TRAINED OR QUALIFIED IN COUNSELING -

BUT THERE ALSO WILL BE A SUBSTANTIAL NUMBER OF BEGINNING OR LESS

EXPERIENCED LAWYERS ASSIGNED THERE TOO. IN ADDITION TO THE

PERFORMANCE OF NORMAL CLIENT LEGAL SERVICES ALL LAWYERS IN THE

CLIENT OFFICES WILL BE CONTINUOUSLY INVOLVED IN COMMUNITY SERVICE

- PRO BONO TYPE LAW ACTIVITIES ACTIVITIES OF THE ORGANIZED BAR

- AND PERHAPS ABOVE ALL CLIENT DEVELOPMENT AND MARKETING.

THERE WOULD BE EXTENSIVE LEGAL WORK PERFORMED FOR CLIENTS BY THE

LAWYERS IN THE HOLLAND & KNIGHT CLIENT OFFICES ABOUT THE SAME

AMOUNT AND DONE IN THE SAME WAY THAT LEGAL SERVICES ARE NOW

-12-

PERFORMED IN THE HOLLAND & KNIGHT MIAMI OFFICE EACH CLIENT

OFFICE WOULD BE EQUIPPED WITH SEVERAL LARGE THREE-SIDED

TELECONFERENCE ROOMS TWELVE OR FIFTEEN SMALL CLIENT CONFERENCE

ROOMS ONE SMALL AUDITORIUM CAPABLE OF SEATING TWO TO FOUR

HUNDRED PEOPLE SPECIAL FACILITIES FOR ENTERTAINMENT EXTENSIVE

RESOURCES FOR MARKETING AND MARKETING PRESENTATIONS. IT WOULD

HAVE NO TYPEWRITERS NO LIBRARY BOOKS AND NO FINANCIAL OR

ACCOUNTING FACILITIES. PERHAPS SUCH HOLLAND & KNIGHT OFFICES

WILL AT LEAST INITIALLY BE LOCATED IN MIAMI FORT LAUDERDALE

- WEST PALM BEACH FORT MYERS BRADENTON-SARASOTA TAMPA-ST.

PETERSBURG-CLEARWATER LAKELAND ORLANDO DAYTONA BEACH -

JACKSONVILLE GAINESVILLE TALLAHASSEE PENSACOLA AND THE

DISTRICT OF COLUMBIA.

THE FOREGOING RECITAL OF HOLLAND & KNIGHT'S OPERATION IN

THE YEAR 2000 IS QUITE OBVIOUSLY AN OVER-SIMPLIFICATION. IF IT

IS EVER IMPLEMENTED AND REFINED THERE MANIFESTLY IS BOTH GOOD

AND BAD IN IT. A HOLLAND & KNIGHT CENTRAL OFFICE OF 1000 IN

LAKELAND COULD MEAN THAT A LOT OF LAWYERS WILL BE LEFT IN A DEEP

-13-

PROFESSIONAL HOLE IN THE MINDS OF SOME BECOMING ALMOST LIKE

FACTORY PRODUCTION WORKERS. BUT THOSE LAWYERS IN THE CENTRAL

OFFICE CAN IF THEY WISH ALSO HAVE A LEISURELY LIFE AT THEIR

OWN PACE AND WITH THEIR OWN ECONOMICS AND SOCIAL GOALS COME

TO WORK IF THEY WISH AT 6:00 IN THE MORNING AND WORK THROUGH TO

2:00 P.M. OR AT 6:00 IN THE EVENING AND WORK TO 2:00 A.M. -

HAVING TIME OFF EVERYDAY TO FISH OR PLAY TENNIS OR GOLF OR

DO THEIR OWN THING WHATEVER. THEY CAN WRITE OR FARM OR BE

ENTREPRENEURS. THEY CAN FLY OR SWIM OR READ AND REST. THERE

ARE SUCH LAWYERS IN THE WORLD THOSE WHO WANT TO DO SOMETHING

BESIDE THE 10 HOURS A DAY SEVEN DAYS A WEEK LIFE NOW PURSUED BY

SO MANY LAWYERS.

GOOD THINGS FOR HOLLAND & KNIGHT AND ITS CLIENTS -

COMING OUT OF SUCH AN ARRANGEMENT WILL BE OVERWHELMING. LEGAL

TRAINING AND QUALITY CONTROL WOULD BE A PURIST EXPERIENCE -

BEAUTIFUL. ALL OF THE UNNECESSARY INVOLVEMENT THAT MOST LAWYERS

HAVE WITH NUISANCE CLIENTS WILL BE MITIGATED OR EVEN ELIMINATED.

THE NORMAL SPECIALIST WOULDN'T HAVE TO WORRY ABOUT THE MULTIPLE

-14-

THINGS INVOLVED IN LAW PRACTICE IN WHICH THAT LAWYER HAS

ABSOLUTELY NO INTEREST ADMINISTRATION RECRUITING MARKETING.

IF A LAWYER CARED MORE ABOUT A STAMP COLLECTION THAN WORKING ON

FIRM COMMITTEES IT WOULD BE ARRANGED FOR THAT LAWYER IN THE

CENTRAL OFFICE NOT TO WORK ON THE FIRM COMMITTEE. ALL

ADMINISTRATIVE CHORES MANAGEMENT ACCOUNTING BILLING -

CONFLICT CHECKS FINANCES RECRUITING EVALUATING MARKETING

- WILL BE CENTRALIZED AND HANDLED BY NON-LAWYERS. MASSIVE

RESOURCES TO MEET ALL NEEDS WILL BE READILY AVAILABLE. WORK

LOADS WILL BE BALANCED. THE HUMAN POWER THE MEN AND WOMEN

LAWYERS THE PROFESSIONAL DISCIPLINES AND SPECIALTIES ALL WILL

DISTRIBUTE THEIR SPECIALIZED WORK ASSIGNMENTS IN THE CENTRAL

OFFICE EQUALLY AMONG THEMSELVES. IN THE CENTRAL OFFICE -

EVERYONE WILL NORMALLY BE IN THE OFFICE USING NORMALLY THE

TELECONFERENCE FACILITIES INSTEAD OF TRAVEL. AND I REITERATE A

CLIENT WILL NEVER NEVER VISIT THE HOLLAND & KNIGHT CENTRAL

OFFICE.

-15-

HOLLAND & KNIGHT CURRENTLY HAS AN OFFICE IN LAKELAND IN

WHICH OUR MAINFRAME COMPUTERS ARE LOCATED. ABOUT SIXTY PEOPLE

WORK THERE NONE OF WHOM ARE LAWYERS. WE NOW PAY $5.75 A SQUARE

FOOT RENT CONTRASTED WITH $25 A SQUARE FOOT FOR RENT IN MIAMI.

IF THE MAINFRAME COMPUTER WAS NOW IN THE MIAMI OFFICE A LOT OF

RENT MONEY WOULD BE SPENT THAT WE DON'T NOW SPEND AND THE

SERVICE WE GET FROM LAKELAND NOW IS JUST AS GOOD FOR OUR PURPOSES

AS IF THE LAKELAND FACILITIES WERE LOCATED IN THE MIAMI OFFICE.

WITH THAT HOLLAND & KNIGHT CENTRAL OFFICE CONCEPT -

ECONOMICS IN LAW OFFICE OPERATIONS WILL BE MULTIPLIED BY HAVING

EVERYTHING CENTRALIZED AND MASSED. AS YOU SAVE IN RENT YOU

WILL ALSO SAVE IN SECRETARIAL OR WORD PROCESSING COST AND

HUNDREDS OF OTHER WAYS. ALL FACILITIES FOR QUALITY CONTROL -

MANAGEMENT TRAINING MARKETING ACCOUNTING PERSONNEL -

RECRUITING CONFLICT AVOIDANCE LEGAL RESEARCH ARE LOCATED AT

THE MOST ECONOMICAL AND EFFICIENT LOCATION WITHOUT REGARD TO

WHERE FIRM CLIENTS ARE LOCATED.

-16-

PERHAPS THE ONLY THING THAT PREVENTS HOLLAND & KNIGHT

FROM UTILIZING TELECOMMUNICATIONS BETWEEN ITS EXISTING OFFICES IN

THAT WAY AT THE PRESENT TIME IS THE MASSIVE INFUSION OF CAPITAL

WHICH IS REQUIRED WITHOUT PROVEN ECONOMIC RETURN.

TELECONFERENCE COMMUNICATIONS ARE NOW TECHNICALLY FEASIBLE BUT

STILL VERY EXPENSIVE. HOLLAND & KNIGHT WOULD NEED SEVERAL

TELECONFERENCE FACILITIES IN EACH OFFICE WITH AT LEAST TWELVE

STATE-WIDE OFFICES WHICH WOULD MEAN A PRESENT OUTLAY OF BETWEEN

FIVE MILLION AND EIGHT MILLION DOLLARS. NOT SURPRISINGLY -

HOLLAND & KNIGHT HAS NOT CONCLUDED TO DO THAT NOW.

THERE IT IS THE ARRANGEMENT IS NOT NECESSARILY PRETTY

OR PLEASING TO ANY LAWYER PARTICULARLY AN OLDER ONE. IT IS NOT

TO MY PERSONAL LIKING BUT IT ALREADY IS TECHNICALLY POSSIBLE

AND THE TREND UNDOUBTEDLY IS NOW THAT WAY. OUR COMPETITION

LAWYERS EVERYWHERE AND HOLLAND & KNIGHT CLIENTS WILL HELP US

DECIDE IN TIME WHETHER THE ARRANGEMENT I HAVE DESCRIBED IS AN

ACCEPTABLE ONE OR THE BEST ONE AND IF SO WE THEN WILL START

TO SHAPE AND BLOCK OUT AND DIRECT ITS IMPLEMENTATION WITH AN

-17-

EXHAUSTIVE VIEW TO PRESERVING THE BEST OF THE TRADITIONAL LEGAL

PRACTICE. IF THE PAST IS THE FUTURE WE AT HOLLAND & KNIGHT -

WILL THEN WORRY AND FUSS AND FIGHT AND DEBATE AND REFINE

- AND EXPERIMENT AND IMPROVE IT FOR FIFTEEN YEARS AND THEN

PROBABLY DISCARD IT MOVING THE ENTIRE OPERATION BACK TO POLK

COUNTY.

(THANK YOU)

-18-

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 273

VOLUME XIX

REMARKS OF:

BEFORE:

CHESTERFIELD SMITH
LAWYER
HOLLAND & KNIGHT

MIAMI, FLORIDA

ORANGE COUNTY BAR ASSOCIATION
ORLANDO, FLORIDA

AN INDEPENDENT FEDERAL JUDICIARY
AND CIVIL LIBERTIES AND
INDIVIDUAL FREEDOMS

THURSDAY, JANUARY 15, 1987
12:00 NOON

TITLE:

DATE:

TWENTY MINUTES

a-77

LENGTH:

AMERICANS LONG HAVE REALIZED THAT AN ABSOLUTELY INDEPENDENT

JUDICIARY AT THE FEDERAL LEVEL IS ESSENTIAL TO THE PRESERVATION OF

BOTH ITS REPUBLICAN FORM OF GOVERNMENT AND ITS CHERISHED CIVIL

LIBERTIES AND INDIVIDUAL FREEDOMS,

THAT JUDICIAL INDEPENDENCE

IS IN A SIGNIFICANT WAY BUTTRESSED ON THE CONTINUED DEVOTION OF

ITS PEOPLE TO EACH CONCEPT,

UNDER THE AMERICAN SYSTEM OF

GOVERNMENT THE SIMPLE TRUTH IS THAT THE FUNDAMENTAL CHECK TO

GOVERNMENTAL POWER AND ITS POTENTIAL ABUSE HAS BEEN IS AND

WILL BE THE FEDERAL COURTS.

WHERE A JUDICIARY IS NOT STRUCTURALLY AND IN FACT -

INDEPENDENT FROM OTHER BRANCHES OF GOVERNMENT OR WHERE ITS

INDEPENDENCE IS NOT FORMALLY RESPECTED BY THE CITIZENRY OR WHERE

LITIGANTS BEFORE IT ARE INTIMIDATED OR PERSECUTED FOR MERELY

ATTEMPTING TO SECURE THEIR RIGHTS AND FREEDOMS THERE ARE NO

TRULY EFFECTIVE DEFENSES IN THAT JUDICIAL SYSTEM AGAINST OR

REMEDIES FOR INDIVIDUAL PROTECTION FROM GOVERNMENTAL VIOLATIONS,

SINCE CIVIL LIBERTIES OR INDIVIDUAL FREEDOMS ARE RARELY

SELF-DEFINING AND ARE NEVER SELF-ENFORCING ANY POLITICAL SYSTEM

A4P FREE06MS
WHICH INTENDS TO RECOGNIZE THOSE RIGHTSAALWAYS MUST MAKE A FUNDAMENTAL

CHOICE ABOUT WHO IS TO DEFINE AND ENFORCE THEM,

MANY SOCIETIES

HAVE CHOSEN TO GIVE POLITICALLY SENSITIVE LEGISLATORS OR ADMINISTRATORS

THE LAST WORD IN DECIDING THEIR SCOPE.

AMERICA ON THE OTHER HAND -

WISELY HAS CHOSEN TO GIVE PRECISE MEANING TO THOSE CONCEPTS BY

USING INSULATED FEDERAL JUDGES TO CONSTRUE A PURPOSEFULLY AMBIGUOUS

-2-

	Table of Contents
	Random current thoughts of a trial...
	"Why lawyers alliance for Nuclear...
	The role of an independent judiciary...
	How law firms (and especially Holland...
	How law firms (and especially Holland...
	An independent federal judiciary...
	Investiture of the honorable Stephen...
	How Holland & Knight may be practicing...
	An independent federal judiciary...
	1987 graduating class St. Thomas...
	An independent federal judiciary...
	An independent federal judiciary...
	An independent federal judiciary...
	Material adapted from remarks made...
	An independent federal judiciary...

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