March 2003

Letters

They've got to be around here somewhere

Editor:

Thanks for the nice comments in the recent Bar News (Letters, February 2003) concerning my past book reviews. I did two others that were never printed and for which I did not receive any notes of thanks, rejection, or whatever. Nothing.

    So I gave up. They may still be around the office. One of them concerned the biography of John Quincy Adams, who was an attorney. After his defeat for a second term, he not only went to Congress — the only president to have done so — but he argued in the famed Amistad case for the side of the slaves who had mutinied while on board. It was a good book and if the review is still in your office, quite timely.

     The other title has been forgotten. I have neither with me in North Carolina nor any way to procure them. If I can find the book I will review Hamilton Basso's paean to the law in a small southern city written about 25 years ago, which I have never read and which Borders, for one, does not have in stock.

    Thanks again for the words of encouragement. We codgers don't hear many of them anymore. Yes, I am now a codger, and I used to not know how to spell the word. However, I am a young codger.

Philip H. DeTurk
Pinehurst , NC  

Arbitration vs. trial: feeling lucky?

Editor:

I enjoyed the article "Enforcing Consumers' and Employees' Legal Rights: 12 Myths about Arbitration" by Keith Maurer (January Bar News, p.30). One myth I was surprised to see omitted is: Plaintiffs prevail more often in litigation than they do in arbitration. I used to believe this myth, and assumed it was the main reason why plaintiffs often try to avoid arbitration clauses in agreements. However, I was surprised to learn recently that in the employment context, employee plaintiffs succeeded 63 percent of the time at arbitration versus only 14.9 percent of the time at trial, placing a serious question mark on popular wisdom (see Lewis L. Maltby, "Private Justice: Employment Arbitration and Civil Rights," Arbitration Now; Paul H. Haagen. ed., American Bar Association, 1999). Nevertheless, it also appears that while plaintiffs succeed more frequently before arbitrators, the size of the average award is greater at trial, potentially making the expected value of litigation larger. Maltby points out that this factor can be accounted for by comparing the total amount received by all plaintiffs in arbitration (not merely those who prevailed) as a percentage of their initial "demands" with the comparable figure for litigants. He notes that the "adjusted outcome" for arbitration plaintiffs is 18 percent (i.e., arbitration plaintiffs on average received 18 percent of their demands), while litigation plaintiffs received only 10.4 percent.

    In light of this data, it seems plaintiffs should be informed by their counsel of the counterintuitive odds associated with arbitration and litigation. Risk-averse and risk-neutral plaintiffs might prefer arbitration to increase their chances of receiving some compensation instead of taking the gamble of going to trial. We might also see future defendants become less insistent on enforcing arbitration clauses (though, as Maurer's article points out, if costs of litigation are much higher than costs of arbitration, that might decrease the defendant's incentives to opt for trial).

Steve P. Calandrillo
Assistant Professor 
University of Washington School of Law
Seattle

Mindless bureaucracies always spoil Edenic past

Editor:

I've spent a bit of time thinking about CLEs lately. Letters and articles in Bar News, conversations with co-workers and colleagues, and the occasional odd flyer have me wondering if we haven't lost our focus on CLEs.

    When I was admitted in 1988, I had the impression that CLEs were primarily about education. After all, it's right in the acronym. Back in those days, the process was simple. You had to get 15 credits a year, and could carry over 30. Then somewhere along the way, a percentage of audio/video credit was permitted. Then someone decided that the better route was 45 credits every three years, and to limit the carryover to 15 credits. Some, including myself, lost 15 credits we had previously been carrying over. And somewhere along the way, we were told we'd have to get a certain percentage of credits in studying ethics.

    Accounting for CLEs used to be a simple matter. Now, when my reporting date comes around, I have to call my brother, an engineer, to help me with the math and calculations. I have .75 credits here, 2.25 there, carried over. But this is only part of the problem. Recently, an acquaintance advised me that she had to order up some CLE materials from the Bar to fulfill her last few credits. A dedicated, bright attorney, she is very busy and simply hadn't had the chance to nail down the last few credits. The Bar was great in helping her get the materials on time, but she learned something that makes little sense to me. When I asked why she didn't simply use some of the materials one of her co-workers already had on hand (he has a number of video and audio tapes), she was told that only the person who paid for the tapes could get credit.

    CLEs have become the 800-pound gorilla, sitting in the corner of the room. While no one wants to acknowledge the beast's presence, it keeps eating, growing out of control. Where the original goal appears to have been educating attorneys, the primary drive now appears to be financial, feeding the beast.

    I think it's time to regain our perspective. Lawyers studied ethical issues before that requirement appeared on the horizon; we just didn't make a fuss about it. We studied it because most of us want to avoid ethical pitfalls, discipline and lawsuits. We got the CLE credits because we were required to, but also because it helped us learn about changes in the law, taught us something new, or refreshed us in familiar areas.

    I'd like to see the Bar return to the old CLE accounting system. Allow one-third in audio and/or video to accommodate busy or remote practitioners, but trust us to keep current on ethical issues. Keep the math simple. Give credit for self-study irrespective of who bought the tapes. Let's try a return to the old system for a few years, even if only as an experiment.

Tom Pacher
Coupeville  

And if private lawyers are the solution, why do we still have a problem?

Editor:

Last time I looked, the court was still dictating rules of conduct for lawyers. A rule regarding pro bono legal work surely is no different than the other rules dictating conduct, behavior and aspirations for the profession.

    Mr. Ley's diatribe against a rule promoting pro bono legal work is not a challenge to the Court's authority or its neutrality; it is an attack on a fundamental civic virtue which any right-thinking citizen would gladly recognize and support. Mr. Ley wrote: "The pro bono concept implies that unpaid lawyers are just as good as private lawyers." Mr. Ley, concepts don't imply anything. Pro bono does stand for the classical civic and moral virtue that those who have the capacity, economically and personally, are bound to serve others. Noblesse oblige is a modern expression of Cicero's exhortation to those whose station and personal capacity give them greater resources to serve the public good. Pro bono, Mr. Ley, is the shortened form for pro bono publico.

    All lawyers, Mr. Ley, are public lawyers, working in a legal system supported by the government and its people. For those of us who perform pro bono work, Mr. Ley, the system treats us no differently, and we treat our clients no differently. Mr. Ley, if you believe you must be paid privately in order to assure good work, so be it. However, those who serve the public good are doing good work regardless of the form or amount of compensation.

    Mr. Ley, your elitist and xenophobic arguments are offensive, but I'll defend your right to express them, at no cost to you.

Michael Danko
Seattle