Address to the Annual Meeting of the American Bar Association,
August 13, 1991 - ( On Legal Reform )

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Now, as Justice Blackmun wrote in the Pacific Mutual case, there are only modest due process limitations on punitive damages. So the tough issues of reform are left to the political branches. Here is the proposal agreed to by the Council. First, to restore the quasi-criminal nature of punitive damages, they should be awarded in a separate proceeding ,after the jury has determined liability, and only where there is some element of intent involved. Second, and most importantly, the trial judge would set punitive damages at an amount not to exceed the amount of the plaintiffs actual harm.

This reform will be good in every respect. For starters, it will preserve the rights, of plaintiffs to collect punitive damages in egregious cases, and continue to serve the goals of punishment and deterrence. But it will curtail the randomness of the system - and restore some measure of certainty to commercial transactions. And, of course, it will leave unchanged the law of compensation.

I've covered for you only some of the high points of the Working Group's report. But the 50 recommendations touch quite a few other aspects gf the administration of justice. For example:

• Changing the rules on expert evidence. We recommend that expert testimony be admissible only as far as it relates to a community of opinion or scientific thought. We think it is time to reject the notion that "junk science" is truly relevant evidence. We're also recommending that contingency fees for experts be eliminated. An expert Witness should not be an advocate.
• Reforming summary judgment. Where it is appropriate to grant summary judgment, it should be mandatory.
• Instituting greater flexibility in judicial assignments-to ensure that we have the judges in the places we need them.

A word now about implementation. The Working Group was formed in response to a system we believe is in danger of spinning out of control. For that reason, the Group worked intensively these last eight months, and received input from state. and federal judges, scholars, practitioners, and laymen of varying backgrounds. And for the same reason we have a strong plan for action on the recommendations.

Some of the proposals envision formal legislation, and we will take that to the Congress. In the same vein, well be making contact with appropriate officials at the state level, and encouraging them to adopt reforms in their systems. In fact, I'll be presenting some of our recommendations later today to the National Conference of State Legislators. We'll also be communicating with relevant policy groups, and proposed changes in the federal rules will be taken through the proper channels.

And in the executive branch, we intend to take our own advice. The President will soon be issuing an executive order that will apply some of these proposals to the federal government when it engages in litigation. Specifically: to follow the recommendations on expert witnesses to allow parties in disputes with the government to elect the English Rule and to require a policy-level review of discovery requests.

I'm personally optimistic - and I know Judge Starr and his colleagues share this view - that many if not all of the Council's ideas. will be adopted. Our inspiration came from the American people: they've seen the problems, they've told us to act, and now they expect us to follow through.

After all, let's ask ourselves: Does America really need 70 percent of the world's lawyers? Is it healthy for our economy to have 18 million new lawsuits coursing through the system annually?" Is it right that people with disputes come up against staggering expense and delay?

The answer is no. We are serious about challenging the status quo, and the proposals I've just outlined are offered to inspire dialogue, discussion, and action. Should we succeed, the American people wp1 be the beneficiaries. And so, too, I suggest, will be the legal profession.

This is no time to be timid. If we believe in progress, we must not fear change. And on this bicentennial of the Bill of Rights, we should remind ourselves of the memorable words of Justice Robert Jackson: "Civil liberties had their origin and must find their ultimate guaranty in the faith of the people." Our job in government, and your job as leaders in the law, is to strengthen the faith of the people - in the resolute protection of their rights, and in the effective delivery of justice.

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