Thomas: Bring back the counselors at law

Former Federal Judge Neil Thomas talks to Chatter Magazine about his culinary ventures.
Former Federal Judge Neil Thomas talks to Chatter Magazine about his culinary ventures.

What has happened to the likes of Atticus Finch? What are lawyers becoming without his focus on what is right and just. And what is the method becoming by which we achieve justice - the jury trial. Is it what it should be? Or is it fading and becoming something different from what mankind has fought to preserve. Have we slipped into a world dominated by rules of procedure and mountains of documents that have caused us to lose sight of what is important - the economical resolution of disputes in a fair way to achieve a just result?

In our first jury trials, jurors did their own investigation of the dispute and resolved it. That system, however, created partiality because jurors started taking sides. So, the impartial jury system came into being. Under that system, in stark contrast, the jurors were not supposed to know anything about the dispute but were presented the facts of the dispute by witnesses and lawyers. But what was presented was often kept secret until trial and that resulted in a complete surprise to the other side. This became known as trial by ambush, which was viewed as uncivilized.

So, starting in the 1960s, there developed what is known as "discovery" where one side finds out everything which is known to the other side before it is presented to a jury. In the distant past, that storehouse of knowledge was somewhat limited. We didn't have the "computer" and all the documents it can create. Or emails, and all the "letters" they replaced with the touch of a key. Now, instead of a few witnesses and a few documents, there are thousands of documents and scores of witnesses to "discover" through depositions and requesting documents from the other side. And, so, the preparation of a case for a trial has become a monumentally expensive task that not everyone can afford . Let me give an example of that expense.

One of our most famous jurists, Judge Frank Wilson, presided over a significant dispute between the Tennessee Valley Authority and one of the manufacturers of its turbines against two steel companies. The trial of that case, a jury trial, lasted for almost six months, and Judge Wilson, at the end of the trial compiled some statistics. He found that the trial had consumed almost 17,000 pages of transcript with 1,139 exhibits. The jury heard from 25 lawyers, 89 witnesses, and it cost about $22,000 per day for a total cost of almost $2 million in court time. The "discovery" or what one side found out about the other, covered 37,500 pages. Surely, Wilson said, there was a better way.

"The parties could have stipulated a great amount of the relevant matters and saved much time and expense both in the discovery stage and at the trial," Wilson said. "If only the attorneys at the start of the litigation would take the time and make the effort to state the undisputed matters and call upon their opponent to admit such matters, it would reduce the time and cost of litigation dramatically."

What Judge Wilson was suggesting was innovative and let me suggest that something innovative is needed. So, heeding the words of Judge Wilson, what do we do?

Lawyers should resume their obligation to society by resuming their roles of counselors at law and take control of the process, not let the process take hold of them. Judges can only do so much to help. From the start of a lawsuit, lawyers must try to understand where and how they disagree? They should be able to understand and define where they disagree, and, more importantly where they agree. Try the case to the jury only on where there is true disagreement. And use the art of persuasion on the jury for the true disagreements.

photo Former Federal Judge Neil Thomas talks to Chatter Magazine about his culinary ventures.

At the start of the lawsuit, the lawyers should meet and describe candidly what their positions are, what documents are important and what are not, and which witnesses are important, and which are not. Then see what can be agreed upon. What is uncontroverted by the documents? By the witnesses? In doing that, the disputed facts are defined. But don't stop with the first meeting. Keep the communication open until the case is developed to then define precisely the disputed legal issues and let the trial judge rule, to the extent he or she can, on those legal issues before trial, further narrowing down what is for the jury.

Also, ask the other side to "Show me where I am wrong." At least such a process would narrow what is in dispute, making it clearer to present to the person or jury who is going to decide "who is right" and clearly defining what the controversy is. This process would also have to involve a word which lawyers hate: concession. But the beauty of concession is knowing when to make it and the significance of making it. Good lawyers - counselors - know when to make them and when not. This process dictates that the lawyer knows his or her strengths and weakness, and with that understanding come to resolution. That resolution would, of necessity, require the lawyer to become, again what he or she should be, a counselor at law and guide for the client. And perhaps, just perhaps, in the process civility may be used, and resolution may be reached.

All of this underscores our need to change through communication, for, too often, as cool hand Luke once said, "What we've got here is failure to communicate."

Neil Thomas served as a Hamilton County Circuit Court judge for 20 years before he stepped down from the bench in 2017. He is now a partner in the law firm of Thomas & Thomas in Chattanooga.

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