Reflections of Chief Justice Warren E. Burger at the Robert A. Grant American Inn of Court 20th Anniversary

September/October 2015

By Judge Kenneth F. Ripple

Editor's Note: This article is a speech Judge Kenneth F. Ripple made to the Robert A. Grant American Inn of Court on November 20, 2014 during the Inn's 20th Anniversary Celebration.

Members of the federal and state judiciaries, members of the bar, ladies and gentlemen:

I am very grateful for your kind invitation to address you on this very special occasion-the twentieth anniversary of the Robert A. Grant American Inn of Court. Anniversaries are a time for celebration and a time for reflection; a time to look back and a time to look forward. Tonight, we should pay attention to all of these perspectives.

Let's look back. During the 1970s, I had the honor of serving as special assistant for judicial matters to the Chief Justice of the United States, Warren E. Burger. Although my own responsibility in chambers was focused on the cases before the Supreme Court, my daily association with the chief justice brought me into significant contact with his concerns about the administration of justice in the country and about the state of professional competence in our profession. Consequently, I had an opportunity to understand the concerns that led to his participation in, and enthusiastic support for, the American Inns of Court. I would like to share with you tonight my memories of those days…memories that I hope will add to your appreciation of the American Inns of Court movement in the profession and what you have accomplished in the past twenty years.

Let me start our historical perspective by telling you a little about Chief Justice Burger. He was a complex man, but, at bottom, a Midwestern lawyer who loved the practice of law and the comradery of practice both within his firm and within the greater legal community of St. Paul, Minnesota. He had grown up in very modest circumstances, a situation exacerbated by the great depression. He enjoyed athletics and was particularly good at track and field...especially the javelin and the shot-put. His financial circumstances made it necessary for him to attend law school at night, but that circumstance turned out to be his most important professional break. Many of the classes at St. Paul College of Law were taught by practitioners…including first-year contracts class. The future chief justice did very well in that class, attaining the highest grade and a job offer from the professor, then a senior partner in one of St. Paul's most prominent law firms. More importantly, the chief justice also acquired a beloved mentor, a lawyer to whom he referred-affectionately and reverently-as "Mr. Otis." Even as chief justice he recalled how, as he progressed in the firm, Mr. Otis called him in one day, presented him with his class notes and announced that he would teach contracts the following year.

The young lawyer's practice flourished. He practiced general commercial law, bankruptcy, and real estate. He became active in the Republican Party. Around the same time, another young man, Hubert Humphrey, was rising in the Democratic Party. In those days, before television, a popular evening pastime was for a variety of groups to sponsor political debates where the issues of the day would be presented by local representatives of the major political parties. Humphrey and Burger were, for a time, the "designated hitters" for their respective parties. It became their custom to meet after work for a quick hamburger and coffee at a local diner and then head off together for the debate. They would debate each other vociferously and then leave together-concluding the evening with a handshake and a "See you next week." Neither ever guessed, I suspect, that they would end up as Vice-President of the United States and Chief Justice of the United States.

The comradery of those early years and tremendous importance of mentorship made a deep impression on Warren Burger. Even during his days as chief justice, he looked forward to his trips back to St. Paul and his visits with old professional friends. A portrait of Mr. Otis, his old mentor, had a prominent place in his chambers.

The Chief was a man of many talents. He could sight-read a page of dense legal material in a second; I once saw him add-in seconds-a series of six-figure numbers printed laterally across a page. But, for our present purposes, perhaps his greatest attribute was his extraordinary capacity to take a teleological view of things. Warren Burger always took the long view. I saw this gift in action in two personal encounters. During my very first year with him, my oldest son, Greg, then an infant, became ill, and my wife and I were naturally concerned, although in retrospect, the situation was always well in hand. I was out of the office a few times that week to accompany my wife on visits to the pediatrician. On Friday of that week, I was working with the Chief Justice in his study. He was signing papers and placing them in his out box. As he did, he asked, "How's your boy today?" I answered that he was doing much better…and then added, "Mr. Chief Justice, thanks for asking. It is not every youngster that has the Chief Justice of the United States inquiring as to his health." Without any hesitation, as he kept signing papers and placing them in his out box, he simply said, "Ken, that young man's health is a great deal more important to this country than my health or yours." The country's future, long after his lifespan, was what counted.

On another occasion, I saw another manifestation of his taking the long view. One day, the Chief came home to chambers from a meeting of a bar association committee considering the use of alternate dispute resolution, an idea whose time had not come and which the Chief believed worth trying on a large scale. He was exceptionally cheerful that morning, and I asked him, pointedly, why he was so invigorated. He answered, "I just came back from this meeting, and there was not a lawyer over forty in the room!" The puzzlement on my face must have been obvious. He became serious and told me that after studying the history of our nation's legal institutions, he was convinced that it typically takes a generation for any significant legal reform to take hold in our country. He continued, "My job is to begin the discussion, attempt to set the vector of the inquiry, and then let the young people carry the ball."

With respect to the improvement of the trial bar, the Chief came to office with a firm belief that an improvement in the quality of advocacy and in the ethical tone of practice was long overdue. In his famous Sonnett Lecture at Fordham University School of Law, he said that this discontent was the product of his long years of experience in the bar, culminating in his years as assistant attorney general in charge of the civil division during the administration of President Eisenhower, a man whom he revered.

But his determination that something could be done to improve that situation was no doubt born of his exposure to the bench and bar of England and Wales. He admired the quality of advocacy in the British courts. It was rooted, in his view, in the close comradery of the barristers in the Inns of Court. While he admired the willingness of the British trial judges to correct even the most insignificant breach of trial etiquette, he believed that the most effective tool for improvement of the bar was the peer pressure that naturally emerged through the barrister's participation in the Inn. Of equal importance in his view was the assumption of responsibility by the bar for a good deal of the training of the newest members of the profession. Academic legal education in the Britain of his day was truncated and removed from the practice of law. The real training took place in the Inn and in the chambers of the barristers.

In 1980, I had the privilege of serving as a member of the American team to the Anglo-American Judicial Interchange. With the Chief Justice, Director William Webster of the Federal Bureau of Investigation, Judge Irving Kaufman of the Court of Appeals for the Second Circuit, and several members of the academic and the practicing bar, I had the honor of visiting the British Courts and the Inns of Court. For 14 days, we observed British practice, visited the Inns of Court and then engaged in wide-ranging discussions with our counterparts on the British team. Although my own opinion of British practice was markedly more subdued than the Chief's, I could not fault his belief that standards of practice were best improved by the lawyers working together. Nor could I debate his view that a good part of the education of the newest members of the profession was best accomplished by those with extensive experience before the courts.

It was from this background that the Chief Justice devoted so much energy to the initial steps in development of the American Inns of Court. He realized that all he could do was to take the initial steps, help set the vectors and then let those who would follow him grab hold of the baton and run the laps that counted. The more senior judges and attorneys in this room were the "under-forty crowd" to whom the Chief entrusted the task of developing the concept, molding it to the American experience and developing it into one of the most worthwhile and influential organizations in our profession today.

And look what you have accomplished! Today, coast to coast, the best of our trial bar acts as leaven in raising the level of practice and the standard of civility and ethical responsibility in our profession. Here in Northern Indiana, your efforts have had such an effect. Thanks in part to your efforts, the practice of law, especially in the litigation area, answers to a higher standard. And if lawyer behavior is not where you want it to be, it certainly is a great deal better than it otherwise would have been. You have reached out to the law students of the area and, just as importantly, helped your colleagues in the academic bar come to appreciate the importance of practical training. You have reinforced the aspiration-and the reality-that, as President Jefferson maintained, lawyers are public persons interested in the public good as well as in their own livelihood.

Now comes the hard part. What lies ahead of us in the next 20 years? What priorities must be set? What vectors must be set if the momentum of the past is not to be lost? Tonight, may I suggest some of the areas that I believe you ought to consider.

First, we are in the very early stages of a massive alteration in legal education. The profession has come to a firm consensus that the next generation of lawyers is not being educated adequately. Academic legal education always has been Janus-faced; it looks outwardly toward the practicing bar and inwardly toward the more theoretical interests and perspective of the university. For a long period of time, legal education has trained its gaze on the latter to the detriment of the public and the profession at large. The American Inns of Court, with its tradition of mentorship, of bridging the gap between theory and practice, is uniquely positioned to play a very influential role in the reorientation of legal education's perspective.

Second, there is a great deal of work that still has to be done to raise-and to maintain-the level of civility in our courts. In our federal circuit, it has been a significant period since a comprehensive study of the problem was undertaken under the leadership of then-Chief Judge William Bauer. Times have changed. The commercialization of some areas of law practice and the general deterioration of civil discourse in this country have had a very detrimental effect on the justice system-an effect that we cannot tolerate if your efforts of the past 20 years are to be preserved.

Third, the nature of advocacy has changed and may well change again. The Chief Justice's experiment with alternate dispute resolution has taken hold, and we have amassed a significant amount of experience in this alternate arena. Now, among some of our judges and among some practitioners, including among younger lawyers, we are beginning to see a reassessment. For some, we have been too quick to forsake the courtroom for the arbitration room, whether the matter is viewed from the perspective of public policy or of economics. We need to pause, take a deep breath and decide whether it is, as a matter of public policy, appropriate to forsake the development of our jurisprudence in a wide variety of areas to ad hoc arbitrator-made rules that do not necessarily take into consideration the traditions of the American people or of the public good. We need to assess, right now, whether the predictability and certainty of the American courtroom should be sacrificed in the name of supposed efficiency. The American Inns of Court, our experts in the adversary process, are in a unique position to play a leadership role in this reassessment.

We also must confront the stark reality that we have not yet resolved the problem of providing, in the civil litigation context, adequate legal services not only to the poor but also to those in our communities with limited incomes. This problem is especially acute, in my view, in those areas committed to federal or state administrative process. It is in these areas that most of our citizens meet our adjudication system, and we are in danger of the public's losing confidence in our legal system if they find something other than a level playing field in this environment.

The major point of contact with our justice system for most Americans is the administrative process. They pay taxes, deal with Social Security eligibility, and with health insurance claims. For years, I watched my wife cope with the mounds of paperwork accompanying the health care needs of older family members. Even with her training as a cardiac care nurse, it was a daunting experience. Accountability in the administrative process is also poor. I recall, many years ago, my sister, who was totally disabled, receiving a notice from state authorities that she was no longer eligible for the benefits upon which she depended for the basics of life. Our family retained counsel who then visited the local state office and asked to see her file. Inside the file was an eligibility checklist. All the boxes were checked. How many other people in her community received similar notifications and could not get assistance?

We well may be coming to the stage of American life where our profession needs to think about inviting into our professional community men and women with limited licenses to assist people in dealings such as the ones I described. Is there any reason to believe that a person with master's-level training, but without a professional doctorate in law, could not serve well in these and many other areas? Here again, we must come up with creative solutions, solutions that may include reconfiguring the structure of the bar if we are to meet the needs of our fellow citizens.

Finally, we need to address the issue of judicial independence, especially in the state and administrative environments. Our administrative law judges affect the lives and well-being of our people in profound ways, but all too often lack even a modicum of independence from the governmental litigants in their courts. Our state judges also deserve greater insulation from the political process. We fought a revolution partly because the English king refused to give colonial judges the protections of tenure and compensation enjoyed by British judges. At the insistence of framers such as Alexander Hamilton, the federal constitution ensures that federal judges of the Third Article have this protection. But it is our state judges, the direct descendants of our colonial judges, who do not yet enjoy such protection.

With 20 years of solid accomplishment behind it, it is time for the Robert Grant American Inn of Court to play a larger role on the regional and national level in addressing these problems. Given your accomplishments and the esteem in which you are held by the members of the profession and the people of our community, it is time for you to take that achievement and share it with others. You have something special to contribute to the regional and national dialogue on the important issues that confront the Country's practicing bar. Like Chief Justice Burger, through consultation and dialogue with your colleagues throughout the nation, you must suggest innovative solutions and set the vectors of future deliberations. You have earned, by the quality of your accomplishments, the right and the duty to participate in the broad dialogue on the future of professional advocacy in our nation. The Robert Grant Inn has every right to become a player in our national professional dialogue.

Warm congratulations and, in your future endeavors, may you encounter-always-
a fair wind and a following sea.

Judge Kenneth F. Ripple is a senior judge on the U.S. Court of Appeals for the Seventh Circuit in South Bend, Indiana. He is a professor of law at the University of Notre Dame Law School and a member of the American Law Institute.

© 2015 SENIOR JUDGE KENNETH F. RIPPLE. This article was originally published in the September/October 2015 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the express written consent of the American Inns of Court.