VirtualCourthouse; Issue 5.1
Good-Bye 1999, Hello 2000

Judge Arthur M. Monty Ahalt (Ret.)

The end of a Century and the beginning of a Millennium is not the pleasure of every generation. As we wind down the Twentieth Century it is a time for reflection: reflection, yes, of the good and the bad. Over the course of the last month of the 1900s we have seen countless documentaries recounting the memorable events and people of the Twentieth Century. It is as if history is flashing by in the blink of an eye.

For sure there have been many memorable events over the last 100 years in the courtrooms of the nation. In fact the acceleration of the number of significant trials occurs at almost a dizzying and sometimes disturbing rate. Likewise the contribution which the organized bar has made to the improvement of the administration of justice and the legislative and executive branches of government is impressive. No other profession is called upon to make greater sacrifices for the common good than the legal profession. Lawyers are truly the technicians of democracy. Day in and day out it is the lawyer who makes a difference in the order of our communities. You find volunteer lawyers in virtually every significant community organization -- from the PTA to the civic association to local charitable organizations to education. And the legal profession is expected to and does provide free legal services to the poor. Yet there continues to be general dissatisfaction with lawyers and courts. The pollsters point to persuasive evidence that public trust and confidence of courts, and the legal profession, is at an all-time low.

We are in a period of great transition. The information age, the Internet and e-Commerce will affect the legal profession and courts. As we move from one century to another let us pause to see what the impact will be and reflect on where we have been.

Shortly after the turn of the 19th Century a 36-year-old young lawyer who was Dean of the Nebraska Law School traveled to the State Capitol in St. Paul, Minnesota. It was there that in 1906 Dr. Roscoe Pound delivered his famous essay, The Causes of Popular Dissatisfaction with the Administration of Justice, 35 F.R.D. 273. It might seem unusual that a young lawyer could evidence such wisdom, but Roscoe Pound was an unusual man. The "Dr." was earned not in the science of jurisprudence but in the science of botany. He earned his PhD. while in the process of conducting Nebraska's Botanical Survey for ten years. Thus Dean Pound brought to the science of law a keen ability to observe phenomena along with the ability to diagnose cause and effect. You see his scientific mind allowed him to analyze the current legal system against its historical background dating to the first courts instituted by Moses. He said in his essay:

"Our systems of courts are archaic."

"Our procedure is behind the times."

"Our judicial power is wasted."

"Putting courts into politics has almost destroyed the traditional respect for the Bench."

Dean Pound began his analysis by grouping the causes of dissatisfaction with the administration of justice under four main headings:

1. Causes with dissatisfaction with any legal system.

2. Causes lying in the peculiarities of our Anglo-American legal system.

3. Causes lying in our American judicial organization and procedure.

4. Causes lying in the environment of our judicial administration.

He pointed out initially that any study of legal systems revealed a certain level of dissatisfaction. He identified four main causes of dissatisfaction with any legal system as being attributed to:

1. The necessarily mechanical operation of rules, and hence of laws;

2. The inevitable difference in rate of progress between law and public opinion;

3. The general popular assumption that the administration of justice is an easy task, to which anyone is competent;

4. Popular impatience of restraint.

The Dean's message that August day in Minnesota motivated the formation of the American Judicature Society. Three years later a special committee of the ABA reported, "The whole judicial power of each state, at least for civil cases, should be vested in one great court, of which all tribunals should be branches, departments, or divisions. The business as well as the judicial administration of this court should be thoroughly organized so as to prevent not merely waste of judicial power but all needless clerical work, duplication of papers and records, and the like, thus obviating expense to the litigants and cost to the public."

Dean Pound made another astute observation. He said: "The law seeks to harmonize these activities and to adjust the relations of every man with his fellow so as to accord with the moral sense of the community. When the community is at one in its ideas of justice, this is possible. When the community is divided and diversified, and groups and classes and interests, understanding each other none to well, have conflicting ideas of justice, the task is extremely difficult. It is impossible that legal and ethical ideas should be in entire accord in such a society. The individual looks at cases one by one and measures them by his individual sense of right and wrong."

It is with these two points -- wasteful administration and the inability to harmonize diversity -- where the information age will have the greatest impact on courts and the legal profession. The information age promises to create great efficiencies -- to allow for central organization in spite of jurisdictional and regional diversity. The promise of the information age with electronic filing, document management and the creation of the electronic case file is to rid the courts of the inefficiencies of paper. Yet at the same time the information age poses a threat by exacerbating conflicting ideas of justice and accelerating conflicts and disagreement.

by Judge Arthur M. Monty Ahalt

January 2000

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