News Scrapbook 1988

Los Angeles, CA (Los Angeles C~-l Los Angeles Daily Jo~rnal W 21 287) (C1r.5x · • AUG S1 1988 .J.ll,,.'a P. C. 8 F.,r. I 888

•

AUG 2 9 1988

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!What's Wrong With LawY,grs? A Lot of Things, but There's Hope, IfAttorneys Will Listen

SAN DI EGO DAILY TRANSC_R_IP_T_-'-'M.a..::O'-'-'N=D.:..:A..:..Y,..._A=U=G=U-=--ST"-'2=9.,,_.1=9=88~_3_A

Fina cial Group Elects Officers, Directors

Advanced reb'lStration i $50 per per n. The Southwest Business Devel opment Network is a demonstra t1on proJcct of the U.S. Department of Commerce Minority Busine. · Development Agency. • • • The an Diego chapter of the Project Management In titute will have a dinner meeting Sept. 7 beginning at 5:30 p.m. ut th Cafe D ,1 Rey Moro in Balboa Park Gu,• t speaker will he Bill Baity of the c nter for a trophysici; and space 1ences at UC San Diego. Cot t $15 for members with ro •rvat1on and $17 for guest and m mbe without re rvation . .. .. The World Affairs Council of • an Diego 1s planning a pt. 9

S'S B ROBERT FELLMETH

- where there are lax moral standard, of question over which reasonable persons can

more than that; it teaches at least one impor- ti tant means to test truth or honesty. Ifyou say,

differ, it is a basic premise of the American system of government. And it Is being violated with disgraceful impunity. In California the arr.lflgement is particularly reprehensible be- cawe 17 of the 23 members of the Board of appointedbyanyelectedofflcial; instead, they are elected by attorneys. If there is such a thing as political Immorality, this is it. These agencies exist with the awesome power to adopt .rules, to decide who can practice hat trade and how they can practice it, and to facilitate the criminal prosecution of those who do not abide. They can deprive a person of hif or h r ri~t to practice a profession. Few pow- ers of the state are more coercive. And they exist allegedly because there serious mar- ket flaws, flaws with the unfettered exercise of the profession's prerogative. The broad public not the profession, must intervene through the are

rnmesty - leads to gumming up the worts. At- tomeys use the process not~ find the truth but to seek advantage for a client for money. And they defend_ the system. by citing the

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You're in the middle of your day and or write in a judicial opinion, that you believe a swamped with work, the phone rings and you person should pay another damages be-

cause .. .. you are able to test the reason and All this is called "thinking like a lawyer." come to believe that "thinking like a lawyer see if it is the genuine basis for the conclusion. profession's catechism: Hboth sides are repre- But there are two drawbacks. First, lawyers No, not every word IS a lie,_ but 1fyou exclude ,, th th effi t th lie half of the tru , e ec IS e same as a

pick it up, and the voice of someone else's secretary announces: "Mr. Fellmeth?"

sented the truth will, out. ~o holc:'5 are barred. Governors are not only attorneys, they are not

''Yes," you answer.

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You wait, paper is stacked everywhere your desk, you've got urgent mail unanswered for days. Then the strains of music begin to come over the line. You are on hold and you

and attorneys ~e expert at excluding the truth

around you, phone messages cover the top of means more than its significance deserves -

that hurts theu- case.

they begin to think they are special. The second problem is the moral relativism implicitinthewaytheSocraticmethodisused. .No matter what your principle or value or the- ou sis, I can find a fact situation where you will I'm not suggesting that students be inculcat- ed with a strict moral code or that legal train- there is another extreme, a nihilism which as- sumes that since all answers are imperfect, the

'Trial by Resource Exhaustion' A thousand years ago "trial by combat" was to settle disputes. It was rather primitive. ears a o, "trial by ordeal" was used. This invo ved dipping suspected Wfl'.Chil!l! in water to see If they would drown or recant. Now we have "trial by resource exhaustion." Translated, it means: "He who can afford to We all know what we have created. We have a systemwhere notjust the poor are shut out - o hun

continue to wait. Suddenly you realize that you There are no perfect answers, you are taught.

w · ·

are itting there wa

for some-

one to get to the phone ... w O calle you.

· Johnson fellow, but you now compromise it, limit it, maybe even reverse it.

don't know

su pect one thing: Mr. Johnson is an attorney. Three years of this has an impact.

A Speakerphonel Suddenly a voice come, over the line, but it does not ound quite right, it seems to have an echo. The speaker seems to be in a cave. A speaker-phone! Now you have dispositively identified your caller's occupation. Well, • 'm not going to gratuitously make fun of the l ng list otattomey pretensions. But I think the leg;µ profession has an underlying personality problem tluat affects how legal ser- vices are delivered in this nation. It starts with our law schools. We train our lawyers through what is called the Socratic method. If you seen the movie or TV series "The Paper Chase,'' you get a vague idea of the forma It involves attempting to arrive at the truth by cross-examination. You are asked a question and led to propose a rule Whatever the principle, the limitations of language make it possible to pose hypothetical tappeartoqualifyundertheprin- ciple but which o not seem o be right. For example, on my firs da of law school, I was asked bymy real property professor, "What ls real property." I said something like "real property consists of land and objects attached _/ to the land," and he counteredwith: "So ifl am driving a truck full ofland in the form of earth, is that real property?" "Well, no," I answered, "that would be mov- able dirt, not really land." "So," he said, "what about this building we are sitting in, is it real property?" "Yes." "Did you !mow that it was moved to this location?" "No, I didn't !mow that, it must have been difficult." "So you're saying, Mr. ellmeth, that real property is property that is difficult to move?" "Well. no, I don't think that Is quite right either." "Well then what Is it, Mr. Fellmeth?" "I don't really !mow, I guess." "You d n 1 t know, you don't know ... you don't even know what tiUe of this course is about, do you?" Humiliation Well, th1 of course humiliates you in front of your peers And I thought I was well-prepared for the Socratic method. I had studied the clas- sics and knew that Socrates was patronizing. But I also knew he was nev cruel or insult- ing; he was searching for the truth. Unfortunately, the students do not want the truth, they want answer. Any answer, but one that is acceptable to the professor. But all the professors have for three years is ques- tions, criticisms and hypothetical situations in which your answer does not work. None ofyour answers work. They all have problems, exceptions. Now this does three things, one good and two bad. The good: It teaches you to think with analytical skill - to move from premise to the- sis in logical and careful steps. And it does Robert FeUmeth is director of the Center for Public Interest Law at the Univ.ez:sity ~" Diego Lqu; ScMol and i3 discipline monitor for the-State Bar of California. This article is adapted frrmi a speech he gave earlier this year to HALT, a legal rejorm organization. or a principle. question though we. lost 'Goots,' we believe the defense can be better than last year's." "Goots" was team captain/defensive quarter- back John Gutsmiedl, a four-year starter. He's the Pi; member of the '87 starting secondary not to re I J Day will be joined by Chris King and Dar- ry ac , who started as freshmen. The strong saf~ty probatn,_ will be Mark Crisci, although re- cnnts G_reg ~rmen--"1.d Darby B ett figure to see playmg t~me some . jn the seco . Four of mne returmng det'-:i.ve starters a"" linebackers - senior Jeff Merlino a... ·, nlor Matt Haniger on the outside, Shawn Reza1an, Parris Sorianello and Frank Love on the inside. The tn~ inside backers shared the two starting spots in '87. The most surprising position switch on the team involved moving quarterback Braulion Castillo to outside backer to alternate with Haniger and Mer- lino. "Physically, I know I can do the job," said Cas- ·uo, a senior who transferred from the U.S. Mili- ry Academy Prep School last fall and shared the QB job with Murphy much of the season. "Mental- ly, I've got a lot of adjusting to do. But I want to help this team and this seem he best way to do that. It's just kind of hard to see the quarterbacks over there throwing and not to be part of it." Dave Dunn and Dave Gilmore are returning starters in the defensive line with the third spot likely going to John Gomez, a senior who played a lot m '87. Gilmore reported at 240 pounds, but still clocked 4.8 in the 40. Valhalla High recruit Jim Washam is expected lo play a lot as a frosh. Two sophomores, place-kicker Jim Morrison (7- for-7 on extra points last season) and punter John Gillis (33.4-yard average and 13 punts of 40-plus yards), return to anchor the kicking game. It's probably a meaningless trend, but the fact is bad years have alternated with the .500 or better ones in Fogarty's tenure at USO. Starting with 5-5 ·n '83, it's gone 1-8-1, 5-5, 3-7 and 6-3-1 since. "I'll be very disappointed if we end up some- bing like that (a bad year)," said the coach. "Ooce again, our biggest concern is lack of depth at cer- in positions, but that seems go with having a Division III program. ll we pan avoid a bunch of inJunes, our goals are rea~ble.... All of L

ing be replaced with religious dogma. But pay his lawyers the most money wins."

state.

Now those who serve on these boards do not differences are not a matter of passion, but of but almost everyone is shut out. It takes more view themselves as cartel agents, but aa pub- circumstance. Students are not taught the than three years and close to $100,000 to litigate lie-spirited citizens Improving their profession most important lesson of all: tluat although fairly simple civil disputes. Any dispute under and serving the public lilterest. And many are there are few perfect answers and all of our $30,000 is effectively foreclosed from court res- well-intentioned. But look at the unsuiprislng value judgments are relative, some answers olution with attorney assistance. record. Attorneys liave actually contended and are better than others. And it Is possible to care America's system of legal services suffers litigated their right to collusively fix pf'lceg, about a better answer, to care enough to work from more than bad manners and language. It Their argument was predictable: The hard for it, to not compromise it, and in our is largely controlled by judges and lawyers. professions" should be exempt - the bat history, to die for it - things generally beyond Their problems and wealmesses become those needs to fix prices at $100 per hour to pl'Otect the public.

But they were defeated. How do they ltegll'- late now? They regulate where it is not needed. But if regulation ls needed because there irTeparable harm from incompetence, dlen they should do it. What I am suggesting ii that the basic reason for regulation - this assur- ance of competence - has not been even a the- oretical concern of regulating agencies con11lalma of the profeuion regulated. Not really. These regulating agencies are .funda,'. mentally fraudulent structures. Discipline System Now the one area inciting a certain amount of activity ln California is the question of disci- pline. If the bar cannot prevent incompetence, the least it can do ls drum out those who have proved their incompetence. Certainly that af. fects the quality of legal services. There is ba4 news here aa well. For the discipline system of California focuses on criminal behavior or to- tal client abandonment, not on incompetence, even egregious incompetence. This is a basic flaw, but even as to dishonest attorneys the systems are a sad spectacle. There is nothing mysterious about what is needed in a worJring discipline system: the aggressive detection of attorney wrongdoing and incompetence; the preliminary assurance of that competence by continuing education and testing in the areas of actual practice; the quick prosecution of those who fail standards after independent investigation; clear author- ity for interim suspension and for license re- striction to protect the public short of disbarment where appropriate; a hearing be- fore a lmowledgeable and independent referee or judge; and a one-step appeal - not the 3½- step appeal process cons~ four to seven years common in most states. And there is no mystery about what our legal services systems should be like. First, we should have less need for legal services at the outset. Where needed, they should be providett more by paralegal or by more-competitive at- torneys. Small-daims jurisdictions should be enhanced, at least up to $10,000. Decisionsmust be made with maximum information, but even more important, quickly and by someone with authority. There must be a resolution. Awrong decision attempted in good faith and quickly and authoritatively issued with finality and at low cost ls going to be a lot better than what w«; have now, even If some of these decisions are wrong. We need the system to open itself to large cases - those most efficiently adjudicated fol' the greater good: civil rights, class action and antitrust cases especially. We need, in essence, real regulation of attorneys. / ~ - ----==-~

A thousand years ago 'trial by combat' was used to settle disputes. Two hundred years ago, It was 'trial by ordeal.' Now we have 'trial by resource haustl.nn.' Translated, it means: 'He who can afford to pay his lawyers the most money wins.'

of the system. We have too few judges and too few of those are sufflcienUy decisive. Many are appointed based substantially on political alle- giance. Campaign contributions have reared their ugly head, and not only in Texas. It now costs $85,000 to get on the official candidate's statement for Superior Court ln Los Angeles - more than the salary for the position. Where does this money come from? From lawyers who practice before the courts. Also,judges are not educated to be judges. In general, they are attorneys practicing in some specialized field and they are appointed. It is as if the hand of God has touched their collec- tive sl ves and imparted omniscient powers. They are given very little if any education or apprenticeship before they take the bench; they simply walk in and start to do it. They learn on the job. This is very sad. But the biggest problem with our current dispute-resolution system remains licensed at- torneys. One cannot practice law - a term

the ken of law school discourse. It is the abandonment of human responsibil- ity by the profession and its teachers that is its ultimate disgrace. For legal training, by what it chooses to exclude, has committed the legal profession to a general moral abdication. Personality impact and moral relativism are important underlying issues. And there is an- other that is more mechanical, but that exacer- bates the problems of both and has its own independent impact on legal services: the abuse of the English language by the legal profession. Any profession has a right to jts terms of art. But lawyers deal with the rules of our society and their territory is too precious to be left to a gratuitously arcane and incompre- hensible language.

fair!l Council.

Tht• Southw• t Business De- velopment etwork w ,II pres, nt South •rn ( 11lifornia Pacific

George Orwell was notwriting about lawyers in his fam~~ essay, "Politics and th e ~n!fll5h Biggest Problem Language, but he could hav': bee~. · great ene Y of clear lan~age IS, insmcet?,ty,

When there Is a gap _betwce O and one's declared rums, one turns as it were instinctively to long words and exhausted idi- ms like a cuttlefish squirting out ink." Let's discuss the system oflegal services this environment has wrought. The purpose of a 8 real arms 0 •

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not _wrut for ~- Why. Because we_ have decided that mcompetence means a kind of

and we must prevent it by

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making sure in the first instance that those to profession, a proper value systemwould teach, whom the public entrusts this function do not is to eliminate itself. A physician's task ls to cause harm - that they are honest and prevent disease so his or her services are not competent. required. A teacher properly teaches students But he~ too we have a problem. We have how to learn without further teaching. And at- state agencies with the majestic power of the tomeys should focus on preventing disputes state acting for the public, and, remarkably, and on eliminating the need for their services controlled by and indeed consisting of practic- as much as possible. ing lawyers. Now this is not a unique arrange- Now is this what attorneys have collectively ment. Doctors, accountants and dentists, for done? Some give preventive advice, of course. instance, have managed the same advantage. But as a group lawyers have created a thing They all make the same argument to justify called probate, and another thing called bank- their self-serving control of a public body de- ruptcy law, and tax law and.... They have signed to limit their market abuse: The com- created complex and very specialized systems plex task of regulation requires expertise. for dispute resolution that require their other- But the decision-makers setting policy on wise unnecessary services. They have not al- behalf of the state - that is, the public - ways done so malevolently. But they have should not consist of members of the trade or spent far more time gumming things up then profession regulated. simplifying them. Now this is such an obvious proposition I do The very process of adversarial conten- not know how it is debated by anyone. It is not a

S n Diego, CA (Sun Drego Co.) Evening Tribune (C,r. D. 123,064) AUG 3 0 1988

...Al~~ ,. C. 8

far ""

t USD hopes for better things

Last year was fine,

San Diego, Ca lif. Sou thern Cross (Cir. W. 27,500)

San Diego, CA (San Diego Co.) Evening Tribune (Cir. D. 123.064)

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?-7

By Rick Davi

AUG 2 6 1988

JI.list~ ,. c. a Esr. 1 ua 1~ !\ E PAPER ORK -· Tho~e YSD basket- ball fans who remember guard Eric Musselman frnm a few seasons ago will be intrigue1 by this update: '"'J-'t 5'«,- ' A few days ag , Musselman was_ ll",!P.~ru:Per- al manager of the CBA's Rapid' dtj>(S.D.) Thrillers who finished with an lS-38 record last seaso . Musselman, who formerly scouted f~r the L.A. Clippers, didn't waste any time cleamng hous~. In his first day on the job, he traded aW<>-Y six players, hired a new coach and picked 10 pl.ayers m the CBA draft. _,,,,-- ...

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OFFE SE gene ted 1,486 yards by rush- .. ...._.,,,,.,,.Iv 60 percent of Its total

ing the ball

offense. A big reason ~· y p ans a similar em- phasis now IS the pr~nce of five experienced running backs - Virgil Enriquez (limited to 121 yards because of inju1es), Todd Jackson (405 yard , 4.6 average), Tj Barskdale, Scott Slykas and Pat Hefler. Enriqmz and Jackson were the proJected starters enterng fall practice Sophomore Brendan urphy will start at quart- erback unless Southw tern CC transfer Doug Piper or Bakersfield 0:: refugee Mike Williams find a way to supplant hm Murphy, who bad off- season arthro copic s Ider surgery, threw for 769 yards and eight touMowns ID '87. ~urphy's two most f:equcnl targets last season - Lionel De orst an Jeff Mansukhani - are gone, but two big-play receivers in Ken Zampese and Ken Jones are ba:k The tight end will be David ottoli, who backed up DeMorst and had a team-fastest 4.65 time 1cross 40 yards the opening day of fall camp. The other three offetsive starters returning are guard Mike Cassady aid tackle Mark Garcia. Ray Smith, at tackle, and Neal Curry or Jeff Car- penter, at guard. also figure to start with the cen- ter spot, in Fogarty's words, "up for grabs." Scott Salcido, a redshirt freriman who prepped at Uni- versity City, then mad~ the Boston College squad as a walk-on last fall, could wind up with the job. DEFE 'SE Any apprehension ahout switching from a bend- but-don't-break philoS-Ophy to an aggressive, gam- blmg one in '87 were obliterated by the results Those Torer thr w four utouts in 10 games, m luding three 28-0 blankmgs on consecutive weekends. Only one oJponent (St Mary's) scored more than 17 pomts against the fense. "We built a lot of ide 1n our defen e by wbal we accompl1 l season," said Day, who led th team m tackles (35), a ists (56), fumbles forced (three) and mterceptions (six). "And even

USD

"Contemporary Documents In lltu lcal Music," a course which rntroduces the bas,c principles of musrc in relationship lo Christian ritual, will be given Sept. 7, 1 4 , 21, 28 and Oct. 5, 7-10 p.m., at the University of San Diego. The program will be directed by Father Nicolas Reveles. Sponsored by the Institute for Christian Ministries and presented through the certificate program in liturgical music. "Introduction to Lllurgy," a course which outlines the basic principles of Christian worship wil be held Sept. 12. 19, 26, oci. 3. 10 and 17 from 7:30-1 o p.m., in Salomon Hall at the University of San Diego. The course will be directed by Father Dennis Krouse. Sponsored by the lnS t itute for Christian Ministries and presented through the certi_ficate program in llturglcal music.. "The Hymnal," a workshop dealing with all aspects of the hymnal, will be held Sept. 17, g am.-4:30 p.m., Camino 131 at the University of San Diego. • Sponsored by the Inst ltute for Christian Ministries and presented through the cei:tificate program in liturgical music.

San Diego, Calif. Southern Cross (Cir. W. 27,500) AUG 2 61988

Jlllen 's P. c. B

h t. 1888

SD professo given Fulbright scho arship A~CALA PARK~(1~ Anderson, asso ·1ate professor-otleconomics at the University ofSan Diego School of Business Administration, has been awarded a Fulbright cholar Grant. The grant is for research at the Central Bank of Ecuador in Quito, Ecuador, from September lo December 1988. In addition to academic and professional