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