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The Florida Bar
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November 15, 2013
Letters

The Profession’s Future
Thank you for publishing the October 15 front page piece on the future of our profession. It has renewed my interest in the reasons (if there are any) why anybody would voluntarily be a member of The Florida Bar.

The Board of Governors, the courts, the profession as a whole understand and admit that there are serious flaws in how legal education and legal services are administered and now there is real debate as to how the profession is going to survive into the next decade, let alone the next century. 

The article focuses on the fact that we’re turning out substantially more lawyers than the market can absorb; that nobody wants new lawyers without experience (law students take note); that “for the first time lawyers have serious competition from nonlawyers;” and that they just better get used to it because they “should no longer count on ‘reflexive’ regulatory protection.” It goes further to say that really nothing at all can be done about the proliferation of technology so we had best just deal with that, too.  

If The Florida Bar can do nothing to protect us from the unlicensed practice of law from nonlawyers and can do nothing to protect us from the onslaught of new lawyers who are just now figuring out that the days of making money in this profession are slipping away fast and can offer no real benefit to the individual members of our profession, but instead concern themselves with such pressing issues as diversity and professionalism, what is the real raison d’etre of The Florida Bar? Why am I paying almost $300 per year for membership in an organization that isn’t protecting me from competition from people who are paying nothing? And why is diversity important to me? What do I care if there aren’t enough minorities in the profession if I’m worrying about making payroll next week? 

Somebody better take note. 

I speak for a lot of people who are thinking the same thing, but are afraid to write things like this because it’s not politically correct. I think The Florida Bar could be a powerful tool against the things that threaten our profession, but for whatever reason, like Neville Chamberlain at Munich in 1938, they choose not to step up.

Ernest J. Mullins  
Kissimmee

DCF
Developmentally disabled children in the Florida Department of Children and Families’ care and custody are the most vulnerable children in Florida; however, often they have no one to advocate for their needs or argue in juvenile court on their behalf before governmental agencies.

DCF has the apparatus to provide care, but this population often doesn’t get the attention it needs from DCF, its community-based care providers, and particularly from the Agency for Persons with Disabilities and the Agency for Health Care Administration.

Tamiyah Audain, 12, paid the ultimate price for this lack of attention. The girl, who suffered from autism and a rare genetic disorder, was orphaned and became a ward of the state when her mother died and her father refused to care for her. She was sent to various family members. She suffered malnutrition and bedsores.

Throughout her ordeal, child welfare agencies contracted by DCF debated who should pay for her care. Critical care and benefits that would have protected her were denied. Staffings and evaluations were cancelled. Late last month, Tamiyah became the 21st Florida child known to have recently died while under the watch of DCF.

If only she had an attorney or attorney ad litem to represent her in the state dependency system and to obtain critical benefits before these other agencies, Tamiyah might have received the care and medical waiver benefits she needed to prevent her death.

We must put an end to this needless and senseless wrongful death, personal injury, and physical abuse. Advocates have admonished DCF and its providers for not seeing that these citizens receive the critical and appropriate medical care and governmental benefits they need.

Advocates have lauded the Legislature for providing funds this past session to make sure legal counsel is available for medically fragile children. Now it is time for them to similarly help other children who cannot protect themselves — developmentally disabled children in foster care.

One child advocate attorney could have prevented her death. Instead, providers and governmental agencies collectively ignored her needs, and somewhere along the line, no advocate was there to make a difference to save Tamiyah’s life.

Howard M. Talenfeld
President of Florida’s Children First
Ft. Lauderdale

Rethink the System
The adversarial system should be rethought, because this throwback to the medieval mode of trial by combat, also called wager of battle and judicial duel, no longer can be justified in a time when the public interest and the general welfare must be served.

The public interest and the general welfare cannot be subsumed under the special or selfish interests of the client. Indeed, what is good for society must be good for the client.

It is not the other way around. If it is pollution, for example, society must be the winner.

If it is consumer fraud, society must be the winner. And, in other situations, the demands of the client at the expense of society must take second fiddle.

But society and the general welfare are also not served because the adversarial system is not a level playing field.

Generally, the party with the money to support a large legal team will win out over the party lacking in funds even for one lawyer.

Lady Justice may be blind, but so much of the judiciary is not blind to ideological conditioning and a particular jurisprudence that serves one party well and another party poorly.

As in the olden days, today’s adversarial trial is a judicially sanctioned duel, but so often the duelists are not of equal ability or capability. And this cannot be said of the jurors, so many of whom are not qualified by lack of education or experience or objectivity or plain common sense to serve justice well, if at all. This problem becomes ever more serious the more complex the facts and the legal issues of this or that case.

Lawyers practically do rhetorical summersaults in their efforts to persuade or dissuade the jurors from this or that verdict, regardless of the truth of the case.

The adversarial system becomes a modern day trial by ordeal where the witness or the defendant may be subject to the most egregious questioning. And the plaintiff or the defendant, in many cases, has to spend a life’s accumulated fortune to defend against claims of guilt or innocence. And then may come the appeal that will use up what money is left and more, the party being left many times in a veritable state of bankruptcy.

What would replace the adversarial system that is a most imperfect method of determining the truth of the matter at hand? The answer is the scientific method in which adversarial combat is replaced with the objective search for the truth. Ask any medical research scientist or any astronomer what the objective search for truth is; and see their results that have served society well.

The scientist seeks to let the reality of the situation speak for itself. The attorney, on the other hand, seeks a reality that suits the client. The scientist’s pursuit of experimental control and reproducibility diminishes the effects of cognitive biases. But the biases of the client are precisely that with which the attorney willingly works, if the attorney wishes to be paid or hired in the first place.

The scientist needs to know all sides of the question, but the attorney is concerned — unless the attorney is a very good one — only with the client’s side. The scientist thus analyzes all the data, while the attorney is devoted only to the data that will prove his client’s case.

True. An attorney cannot experiment as does a scientist. Cannot experiment. Cannot replicate. Cannot test hypotheses and thus cannot predict.

But an attorney can have the objective mindset of the scientist, and instill in the client the essential need to be objective.

In short, let justice be served not by the adversarial system that is not capable so often of doing so, but by the scientific method.

Stephen Schoeman
Westfield, NJ

[Revised: 04-18-2014]