David Boies urges ABA: 'Bring rule of law to full fruition' in U.S. to meet founders' goals-- Seeks balance in litigant resources, jury reforms, better court funding, predictable justice

By Nancy Slonim

American Bar Association

David Boies challenged America's lawyers to "bring the rule of law to its full fruition here in this country ... to fulfill the goals and lofty rhetoric of our founding fathers," as the keynote speaker at the Opening Assembly of the 2010 ABA Annual Meeting in San Francisco last weekend.

The rule of law was the assembly theme, as ABA members gathered in the Herbst Theater of the War Memorial Veterans Building, site of the signing of the charter of the United Nations in 1945.

President Carolyn B. Lamm pointed to ABA efforts from activities of the Section of International Law to such projects as the Central European and Eurasian Law Initiative, the Rule of Law Initiative and the World Justice Project as advancing United Nations goals to spread democracy based on law around the world.

Boies, co-counsel with Ted Olson in winning a federal district court ruling last Wednesday that overturned California's Proposition 8, cited "numerous challenges to the rule of law in our own country," in applying that theme at home.

When our nation was born, it consisted of "wes" and "theys," Boies said, with the "wes" being white male property owners and the "theys" comprising everyone else. As the national history unfolded, the circle of "wes" expanded to encompass more and more segments of society.

"We have an opportunity to expand the circle of 'wes' until there are no more 'theys,'" said Boies, urging lawyers to work toward ensuring that "liberty and equality and protection of individual rights is something that every citizen equally enjoys."

To achieve that goal, Boies identified four challenges confronting his audience.

First, he suggested the rule of law works best when adversaries have equivalent resources, whether those resources are plentiful or sparse. But the "time when our system tends to break down is when one party has tremendous resources and the other party does not." Those are the times that "threatened to undermine the protections of the rule of law... [and lawyers] need to find ways to reduce the imbalance," he said. He urged reducing procedural advantages that favor the "better resourced party," and urged lawyers to not "use discovery as a war of attrition," for example.

Second, he called for "better tools to help juries" decide important but complex cases, such as allowing jurors to ask questions and take notes on testimony.

His third challenge was to "improve judges and the judicial machinery," citing a "crisis in terms of financing the justice system in the United States." First year associates in his law firm are paid higher salaries than federal district court judges, and state court judges earn even less, he said. "If we can't afford to spend [on our justice system] a fraction of what we are spending to expand that system to Iraq, something is wrong with our sense of priorities," he maintained.

All lawyers must stand up for the independence of judges, resisting threats to their safety when they make unpopular decisions, said Boies, noting that there already have been threats to harm the judge who ruled in the Proposition 8 litigation.

Boies' cited predictably equal application of the law without regard to the identity of the parties as the final challenge to the rule of law, saying that when rights depend on who is asserting them, "the rule of law is undermined."

Published: Tue, Aug 10, 2010