How Changes in the Legal Profession Reflect Changes in Civil Procedure

Abstract

Scholarship criticizing the legal profession generally blames partisanship for attorney excesses on behalf of clients. Moral philosophers argue that attorney partisanship on behalf of clients is inherently unethical, as it leads attorneys often to ignore the interests of third parties and to advance whatever outcomes benefit their clients, without pausing to consider whether a desired outcome is best for the law or society. Other scholars concede that partisan attorneys might, in theory, serve the law at the same time they serve their clients, but argue that changes in law practice have intensified partisanship and thereby have led attorneys to stray from this ideal role. These scholars attribute a perceived decline in the ethical stature and social utility of the legal profession to social changes that provide attorneys with ever greater incentives to put aside their scruples and do their clients' bidding. Neither set of scholarship provides a complete account of attorney excesses on behalf of clients because both overlook the constraining force of the judicial perspective. To succeed in a partisan role -- i.e., to be an effective adviser or advocate -- an attorney must consider his client's case not simply from the client's selfish perspective, but also from the perspective of the neutral judge who will decide the case after taking into account the interests of all concerned and trying to do what is best under the law. The prospect of a judge applying law to the client's factual scenario should (at least in theory) constrain attorney partisanship in transactional practice and litigation, ensuring that attorneys do not ignore the interests of third parties or stray too far from what is best for the law. If critics are correct that there has been a decline in the social utility of the legal profession, this decline is attributable not only to attorneys' partisan incentives, but also to a decline in the constraining force of the judicial perspective brought about by changes in civil procedure. The Federal Rules of Civil Procedure, as amended over the years, have diminished the importance of judicial evaluation of the merits of lawsuits in two related ways. First, liberal pleading and discovery under the Federal Rules have altered litigation dynamics by making lawsuits more expensive and inducing settlements based on this expense. Second, the expansion of issues associated with liberal pleading and discovery has increased litigation uncertainty, making it difficult for attorneys to factor judicial application of law to fact into the value of a case. Because changes in civil procedure and in the nature and force of the judicial perspective help to explain a perceived decline in the legal profession's social value, scholars concerned about the profession's decline should give serious consideration to procedural solutions. If the goal is to lead attorneys to pursue justice, procedural reform aimed at elevating judicial application of law would be more effective than merely revising ethical standards, and yet less daunting than revamping the social institutions that today appropriately lead attorneys to favor their clients' interests over others. Procedural reform could lead attorneys to consider the interests of justice not because it is the right thing to do, but rather because it is what a judge will do before deciding their clients' fates. Further consideration should be given to procedural reforms that would standardize judicial influence over the resolution of lawsuits and elevate the importance of judicial application of law to fact. Of the many avenues available toward achieving this goal, the Article offers three possibilities that may be worthy of further attention. First, in order to encourage judges consistently to utilize partial summary judgment as an issue-narrowing mechanism, Rule 56 could be amended to require judges to provide reasons whenever they deny summary judgment. A second reform might discourage weak claims and defenses by empowering judges to shift attorneys fees for positions that survive summary judgment but are contradicted by the weight of evidence disclosed during discovery. Finally, in order to ensure that excessive discovery expenses do not induce cost-based settlements prior to a judicial narrowing of issues, a third reform could require judges to identify at the outset issues that are candidates for summary judgment or fee shifting and to limit early discovery to those issues only. These three reforms would aim to eliminate, or at least mitigate, some of the tactical advantages that litigants today may gain from maintaining weak or meritless positions during pretrial.