President's Perspective
One Size Does Not Fit All
By Steven R.
Sorenson
Recently, I read one of those wonderful stories in C. Lester
Gaylord's Stories et Cetera: A Country Lawyer Looks at Life and the
Law. This one was about "Society's Sweeps." In this short story
Gaylord talks about an inevitable transformation that takes place in our
society - transformation from an individualized, unique approach to a
specific problem to a generic, mechanized approach.
Gaylord begins by looking at his
practice and his community. He introduces us to Charlie, the village
street sweeper. He talks about Charlie who every day went out and swept
the streets of this small town. He reveals Charlie as a unique
individual who took his job seriously but who had time to tip his hat to
the ladies, share a few niceties with the gentleman folk and help a lost
animal that crossed his path. In this story, Gaylord reminds us of the
individualism and personal attention that are an essential element of
every vocation.
Gaylord explains how individualism becomes lost as we turn more and
more to machines. He does this by showing what happened when the city
council decided to create more efficiencies by replacing Charlie with a
modern, mechanical street sweeper. Now the city's streets get a surface
brushup, but there is no attention to the specific problems unique to
each street corner. There also no longer is anyone to give a few
moments' help to a stray animal, a few minutes' help to a stranger or to
listen to a citizen's problem. The machine is programmed to give the
street a generic sweep without attention to the road's specific
structure or contours and without regard to what damage could be done
given the generic nature of this approach to the problem.
Gaylord carries this theme into his own law practice. He openly
speculates on the increasing pressure to mechanize the way we deliver
legal services. One of his concluding comments sarcastically suggests
how wonderful the world will be when we have perfected the computer that
will accumulate the complaints, synthesize witnesses' statements,
analyze the veracity, sort through the case law precedence and
applicable laws, then momentarily hesitate as it excretes the
unimpeachable decision. Gaylord laments that certainly there will be no
reason for society to continue to rely upon lawyers and judges. The
waste certainly can be avoided and each of us will face the fate of
Charlie as we pick up our brooms (briefcases), no longer required to
sweep up society's messes or straighten out the confusion humans have
created. Clearly, there will be no need for "Society's Legal
Sweeps."
Reflecting upon this story one reaches the ultimate conclusion that
machines can never replace people if we are true to the demands of
professionalism. As we rush to codify all of the standards of behavior,
as we rush to make sure that all case law is at our fingertips, as we
rush to turn our courtrooms into the battlefields of technology, perhaps
we to need to step back and reflect upon our own common law training.
Since when did we place expedience ahead of individual rights? When did
we turn our legal system into a process of finding the lowest common
denominator?
Each year we watch as the Wisconsin Administrative Code becomes
larger. Each year we watch more areas of the law being transferred from
judicial determination or trial by one's peers, to administrative rule
resolution. We constantly strive to establish a universal criteria to
resolve that which we formerly left up to the community's standards of
behavior. The propensity to gravitate to a system free of human emotion,
individual inquiry and personal attention has captivated our legal
community.
Frankly, I am alarmed by the growing tendency of our Legislature to
establish sentencing standards that deny our elected judges their right,
in fact their duty, to impose appropriate justice given the case's
specific facts and circumstances. Everywhere we look, we find examples
of universal systems being enacted by our Legislature to strip away from
the lawyer and the judge the opportunity to discuss what is truly just
and appropriate under the facts and circumstances. Even our district
attorneys and judges who face the onslaught of the media, the
necessities of fundraising and the restraints of the political system,
are now captivated by the idea of uniform standards because this is the
way of the modern world.
I recently heard one of Wisconsin's most influential jurists declare
a need for lawyers to recognize that some people just can't be given our
individual attention. The jurist explained that such a practice -
although appropriate 10 years ago - no longer is financially viable.
These individuals must be dealt with in a modern, mechanical way
according to the jurist. She pointed out that we lawyers could not
afford, given our ever-increasing overhead costs, to represent certain
people in certain types of conflict situations - it would be unfair to
our firms and our families. Further, the jurist pointed out that we
could not waste the court's time and the valuable resources of the
judicial system on resolving such minor and financially insignificant
matters.
The jurist concluded that we need to establish an alternate method
wherein a person, by inputting answers to certain questions, could have
a computer resolve his or her legal entanglement. The result, although
not necessarily just, would be given in a timely manner based upon
mechanical calculations made from the input data. Society would be
assured that this individual's legal concerns had been resolved in the
most effective and efficient manner. Yes, the computer and the
courthouse now can solve society's legal problems, at least when there
is not a significant financial impact as determined by the Legislature,
governor or judiciary.
Just as the termination of Charlie's street sweeping job marked
progress in one small Wisconsin town, so also will the elimination of an
individual's rights to counsel, trial by jury and access to the judicial
system mark a certain type of progress in our society.
Do we forget that sometimes individual streets or in our case,
persons, need individual attention? Do we forget that as lawyers our
common law tradition, and our sense of professionalism, demands justice
be done no matter what the economies?
Certainly there is a place for efficiency and economy, but I believe
that efficiency and economy must take a back seat to the rights of the
individual. Regardless of popular thought, one size does not
fit all.
Wisconsin
Lawyer