 And thank you for coming. Good afternoon. Thank you very much. It's a great honor for me to be testifying before this task force, which was launched to address what we all know is a profound problem, not only of the courts, not only of clients, but as Chief Justice Sofley of Maine emphasized, of democracy. To tell the truth, the decision to dedicate the task force to the preservation of the justice system sort of bothered me from the moment I first got my invitation. Because if we're honest with ourselves, I think we have to admit that for all that it does well, justice in America needs not just to be preserved, but to be restored and reconstructed in many instances from the ground up. If the promise of equal justice for all is to have any hope of being redeemed, just have to listen to some of the people we've heard today to see that. The witnesses we've heard today emphasize how bad things are for litigants and for our court systems in times of economic distress. But the truth is that even when the economy was doing well, we faced a chronic crisis, an indigent defense, in providing adequate civil legal assistance to the poor. And in making our legal system work well, not just for the wealthy and well connected, but for people in the struggling middle class, most of whom can hardly afford and barely comprehend the costly and elaborate machinery that we have constructed for them. Now I may offend a few people by being this direct, but after four decades of teaching and writing, I've come to realize that if you're not willing to offend, you might as well try a different line of work. So let me just start off with one of my favorite lawyer jokes. It may tell us a lot that there are so many to choose from. One of my favorites is a New Yorker cartoon in which a well-dressed fellow was hitting on a young woman at a cocktail party. Oh yes, I am a lawyer, he says to her, but not in the pejorative sense. So why do so many jokes and cartoons depict our vocation in such a pejorative light? Why do most Americans have a view of lawyers that is almost as bleak as their view of journalists and congressmen? John Adams, writing to his father after being reproached for representing British soldiers accused of murder at the Boston Massacre, said he had never harbored the expectation that all men should speak well of me, but only to do his duty. John Adams' modern day counterparts, the lawyers who agreed to represent the Guantanamo Bay detainees, and let's be frank, our co-chairman today, Ted Olson and David Boyz, who made the courageous decision to challenge California's same-sex marriage ban. Make people like me proud of the profession we chose, but may not do very much to redeem that profession in the public's eyes. We can do things like streamline and consolidate judicial structures and make more and smarter use of new technologies as the state chief justices who testified here this morning have done. We can extend FDIC insurance for funds that lawyers hold in trust for their clients, the so-called IOLTA accounts, as my office at the Justice Department did last year in promoting passage of a bill to close a loophole that would otherwise have jeopardized the second largest source of civil legal services funding. We can consider more radical measures like the litigation excise tax on attorney's fees or a systemic annualized funding process of the sort that Chief Judge Lippman has wisely championed in New York. We can do all of those things, and we should, but until we ourselves are redeemed in the public's eyes, our efforts to boost the level of assured funding for public defense so that we don't have to go begging as though we didn't realize that every dollar we spend on civil legal assistance brings back $5. But unless we make a real difference in the way we as lawyers are viewed in the society, legal services and the court system are likely to hit a pretty low ceiling in terms of what they can ultimately squeeze from the system. Something that I learned during my rewarding but frustrating time as the Obama administration's senior counselor for access to justice. The reason that we are held in such low esteem, although we don't like to admit it, we like to think that we occupy a high place in the public's view, may have something to do with the fact that although the ABA model rule 6.1 speaks of the professional responsibility of every lawyer to provide legal services to those unable to pay, the members of our profession average less than half an hour a week and less than half a dollar a day in pro bono contributions, only a small portion of which really go to the poor. But it is likely, I think, to have more to do with how little of the energy of our profession goes to addressing these perennial, chronic, systemic, structural problems and how much of the energy of lawyers is devoted to protecting their professional prerogatives and their economic turf by resisting the simplifications in legal rules and procedures that would make protracted litigation less essential, by interposing obstacles to discrete task legal representation, to unbundled legal services and especially to services that in many instances, non-lawyers could safely perform as well as lawyers can and sometimes better. By resisting improvements in the assistance available to those going forward with no legal representation at all and by opposing fair and efficient forms of dispute resolution, such as class-based arbitration that require less intense commitments of judicial resources and are more user-friendly for ordinary litigants. Now in the spirit of the human interest stories that we've just heard, from Shelby and Patty Baxter and from Wayne and Christie Hagee. And I submit they are human interest stories. There's no clash in my view between human interest and fact. In the spirit of those stories, just consider as one example, the two-year contract that Vincent and Lisa Concepcion signed for AT&T cell phone service to receive what they were told would be two free phones. AT&T instead charged them $30 and 22 cents in sales tax for their phones and they sued the company for fraud in federal court as part of a class of people similarly duped. AT&T said the contract that they had signed required the Concepcion's and the rest of the plaintiff class to submit their claims one by one to individual bilateral arbitrations, each for some $30. Federal trial court, upheld by the 9th Circuit US Court of Appeals, struck down that clause in the boilerplate contract as unconscionable under the applicable California law and held that the plaintiffs could proceed against the company in a federal class action seeking class-based arbitration of a sort that other cases had previously pioneered. The United States Supreme Court dividing last month along dismayingly predictable five to four lines found the California law preempted by the Federal Arbitration Act of 1925. As Justice Breyer pointedly asked in his dissent, what rational lawyer would have signed on to represent the Concepcion's in litigation for the possibility of fees stemming from a $30 and 22 cent claim? Judge Richard Posner observed in a 2004 opinion, the realistic alternative to a class action is not 17 million individual suits but zero individual suits. Only a lunatic or a fanatic sues for $30. Now the reason I talk about this case is not that I expect you to be all that sympathetic with the mere $30 loss compared to the human losses that we have seen described in the testimony this morning. That may seem trivial, but a system that can't even get it together efficiently to resolve disputes over $30 is a system that is fundamentally broken. To me, the AT&T decision painfully illustrates how ordinary citizens victimized by in that particular case corporate greed can effectively be shut out of the halls of justice by the work of lawyers. AT&T's lawyers in the first instance doing a perfectly good job who drafted the fine print in the contract that the customers signed. The Justice Department's lawyers in the second instance whom I have to confess during my time there I was unable to persuade to even file an amicus brief supporting the Concepcion's even though there is in my view a clear federal interest in access to justice. The lawyers in the Supreme Court majority find lawyers all in the final instance who let technical devotion to the letter of the contract and a truly cramped reading of federal preemption doctrine blind them to the common sense that led the four dissenting justices see that the upshot was to let a well-lawyered company to quote from Justice Breyer's dissent deliberately cheat large numbers of consumers out of individually small sums of money. Now this is an example in which no large new appropriation was needed to make access to justice a reality. What was needed was devotion, dedication, energy, commitment, a willingness to see through the superficial technicalities, a willingness to recognize that access to justice should be an important weight on the scales whereas here the arguments one way and the other under the preemption doctrine could have gone either way. Nobody thinks that the legislative fix co-authored by Senators Al Franken and Richard Blumenthal and Representative Hank Johnson stands much of a chance on Capitol Hill. I think it's regrettable that the Obama administration that I served despite its genuine commitment to access to justice sat on the sidelines in that case. I think it's a shame that the ABA which I commend for initiating this task force but which ought to be a strong and principled voice in support of access to justice sat the case out as well. Now I think it would be tempting for this task force to look solely at ways of increasing funding for the system of justice, of improving the use of technology, of consolidating and making the system more efficient administratively. It would be tempting to do that but if consumers and workers can be cut off at the knees and shut out of effective relief by the good work of lawyers then much of what the task force does will be undermined because the power of persuasion which is ultimately all this task force has it has neither the power of the purse nor the power of the sword. The power of persuasion is undercut when the profession and vocation in whose name we seek to persuade does not get it to act together more consistently and more coherently and more compellingly to advocate for access to justice in so many ways. I think when lawyers and the legal profession are seen as less than friendly to the cause of justice then the efforts of a task force like this will ultimately be undercut. So if there is one thought I want to leave with you today and I've been deliberately brief, I know people are hungry and I hope to have some dialogue with the panel but if there's one thought I want to leave with you today it's that we need to work harder and do more to overcome the basis for all of those nasty lawyer's jokes if we are ever to close the justice gap in America. I think our country's greatness demands nothing less and I want to thank you for the opportunity to address you today. Thank you very much. Thank you for coming and thank you for your literally decades. Neither one of us wants to remember exactly how many decades. Don't remind me. Too many decades. Your decades of service to this profession. As usual, you've given us a lot to think about. What would you say would be the two, three or four concrete things that we could recommend that you think would improve things? Well I think you would certainly take some important leaves from the more concrete and precise testimony you've heard today. From the best things that have been done in Maine, in Connecticut, in Massachusetts, in Vermont, in the other states represented here, I think what you would do is hold them up as models. That other states too should be looking for ways not to make access to justice a pay-as-you-go affair as Judge Lippmann put it. Ways of regularizing and systematizing in the budget process, access to justice. I think that's one thing. I think the second thing that you might do is recommend that information be pulled together to remind people that these are not expenditures, they are investments. That the money that we spend on making court delays less dramatic and devastating. The money that we spend on making it possible for people to go to court, that that money is returned multi-fold. And that just as the money we spend on public education ought not to be sort of compared with the current consumer outlay, this ought to be institutionalized as something that is critical to the infrastructure of America and the infrastructure of democracy. I think the third thing that ought to be stressed is that expenditures on technology in particular are vital. That is, unless we take advantage through e-filings, through the use of video conferencing, through the other technologies that are now available to us and that weren't available before, we will have no way to exert a magnifier effect, a multiplier effect on the increasingly scarce dollars that are dedicated to the system. I could go on, but I haven't really tried to encapsulate all of the fine testimony you've heard earlier and I will submit something in writing, but I think that those are among the things that could be recommended. Thank you. Professor Tribe, this morning, for the last few hours, we've heard a recurring theme, the phrase access to justice. I think everyone who has spoken to us today has used that. Is it your sense that the problem we face and what we need to address is a public lack of confidence in accessing our system of justice in this country today? Well, a lack of confidence based on the reality that justice is indeed very inaccessible. That is, when I went around the country, visited all kinds of places that were trying hard to make justice more accessible. Occasionally, I was inspired by what a particularly far-sighted judge was doing and, for example, making mediation more readily available in avoidable foreclosure situations. But on the whole, I was, to be really honest, a little bit more depressed than inspired because throughout the country, there were people who had simply opted out of going to court because they knew the delays would be so long it would be impossible. When I looked at data that said that something like 80% of the nation's justice needs are unmet, I wondered how in the world is that compiled? It's even more difficult than the unemployment figures when people drop out of the labor market. There are so many people who accept their lot, who accept that there's nothing that the legal system can do for them because it's too complicated, it's too labyrinthine, it's too costly, and who have really given up. They haven't gone to the streets. We do have a remarkably resilient system, but many people, including among the most vulnerable in the country, the victims of domestic violence, whom I met, the homeless vets whom I met, many people have simply given up. And so it's clear that it's not just a lack of confidence in the sense that we could kind of pump up the confidence rhetorically or by hiring some mad men kind of Madison Avenue outfit to say, come on, be more confident in the system of justice. People lack confidence because access is genuinely limited, and it's limited not only for the very poor, but as I said, for the middle class. And it's limited often because we don't have the kind of commitment to simplifying the law. I mean, one of the things that's remarkable is that the laws are often written not only in terms that most law students can't readily understand, certainly a fortiori in terms that most people can't get. The legal profession has, like it or not, a vested interest in keeping those laws complicated. I mean, you invest all this money, as you heard, you graduate from law school with a massive pile of debt. How much of your time are you going to spend in streamlining the laws so that your services are less necessary? That's something that needs to be done. Professor Trab, thank you for coming in to speak with us today. All right, nice to meet you. Good to see you. Good to see you. Professor Trab, in the case that you just, the recent case that you just described to us, Supreme Court case, we both know full well that the court knew exactly what it was doing and that it was closing the courthouse door to millions of people affected. They had to have known that would be the result of that decision. Why do you think they did it? Well, I don't question their good faith. I mean, I do honestly think that the five justices in the majority felt that a fair reading of the Federal Arbitration Act of 1925 made it preempt the California law. Whether they might have seen it through a slightly different lens, if at least the Justice Department had weighed in, because there were arguments, excellent arguments, that I thought could have been made and that were only partly articulated, whether one of those five votes might have been different if the Justice Department had played a more active role, I can't know. But I tend not to question the motives of the judges. I mean, they surely persuade themselves that they are reading the law fairly. There is a case that David and Ted and I were involved in, for example, in which I did not join some of the critics of what the court did. On the basis of some allegation that they were trying to preserve a Republican form of government with a capital R rather than a small R. I didn't believe that. I didn't believe that. I still don't. I think that legal questions are sufficiently complicated that people of good faith can reasonably disagree, but that means we have to try all the harder to put a weight on the scale through the best arguments we can muster in support of positions that will make justice more accessible. Did any amici make the argument that the Justice Department would have made? Well, there were so many amicus briefs, I was so disappointed when I was unsuccessful in persuading the office of the Solicitor General that I didn't read them all, to be honest with you, so I'm not sure. But there is, for good reason, an added weight that the argument made by the SG carries if it's made. I think if Ted Olson had made it, or if Elena Kagan had still been there and had made it, it would have carried some weight. Thank you, David.