The Five Functions of a Lawyer - Arthur T Vanderbilt

Chapter Notes by Uma Gopal*

About the Author: Arthur T. Vanderbilt1 graduated from Wesleyan University in

1910. He was a student leader at Wesleyan. He then went to complete his L.L.B
degree from Columbia Law school in 1913. He practised law privately from 1913 to
1947 and also took night school classes at New York University as a full time faculty.
He served as the dean of the law school. He taught nearly every course in the
curriculum, published hundreds of articles in legal periodicals, and originated
numerous ideas in legal education that brought research, teaching, practice, and
continuing education together. He was American Bar Association2 leader, a legal
reformist and proponent of court modernization, In the autumn of 1947, he became
the Chief Justice of the New Jersey3 Supreme Court, until his sudden death in 1957.
Here he brought in many reforms and revamped the state court system from the
bottom up, tirelessly working towards it, in spite of facing stiff opposition.
Another outstanding achievement was Arthur Vanderbilt's effort in the re-origination
of the modern law centre as a place where scholars, judges, practising lawyers,
businessmen and labour leaders could collaborate on the great problems of the day.
He brought the Law School out of isolation; he recognized its obligation not only to
teach law but to aid in the continuing education of the bar and to engage in
co-operative projects of reforming and simplifying law.

Summary

Addressing the delegates in the meeting of the American Law student association, in
one of his speeches, Vanderbilt tried to awaken the conscience of young law
students, outlining the five essential functions of great lawyers, which included
counseling, advocacy, improving the profession (including the courts and the law
itself), leadership in garnering public opinion and the unselfish holding of public
office. He urged the lawyers not to neglect the three latter functions, in pursuit of the
first two for their clients. He also advocated and suggested the means to achieve
judicial reforms. This address was given when he was the Chief Justice of the New
Jersey Supreme Court.
He believed that no student of law is a born lawyer, it’s not a gift of Gods. It is an art
that must be learnt at the Law school, where the law school must not only teach ‘who’
and ‘why’ but also the ‘how’ of law. He wants that the shortcomings of the law is
discussed openly in the law fraternity so that there is a responsibility on the lawyers to
correct the shortcomings also. He bats for raising the standards of legal education
through out his country.
A shortcoming, he mentions, is the improper administration of justice because of
which there are delays in the dispensation of justice. The delays arise because of: (1)
Judges arriving late to courts in the mornings (2) Lack of preparation and resources

1
Arthur T. Vanderbilt Political, Professional and Judicial Papers, Retrieved on May 30, 2018, from
https://www.wesleyan.edu/libr/schome/FAs/VA1000-186.xml#series5
2
The American Bar Association (ABA), founded August 21, 1878, is a voluntary bar association of lawyers and
law students, which is not specific to any jurisdiction in the United States.
3
New Jersey is a state in the Mid-Atlantic region of the North Eastern United States.

*Assistant Professor at Christ Academy Institute for Advanced Studies,Bangalore, India 1

before the actual trial. This includes (a) liberty to assign Judges in courts where they
are needed according to their area of expertise; (b) Lack of pre-trial conferences,
which if done, will compel the plaintiff and defendant’s lawyers as well as the Judge
to be aware of the case details before the hearing (3) Judges taking the matter under
‘advisement’ and thus delaying their decision on the matter.
He offers solutions to the three problems:
(1) If lawyers and judges are morally responsible they will arrive to the courts on time
like the senators of the State Capitol.
(2) If the presiding judges are given the power to assign judges according to the
requirement in various courts and the lawyers conduct pre-trial conferences, it will
further reduce the delays
(3) If judges are made accountable by writing down reports for reasons in delays on
decisions in the matters, the need for advisement may not arise at all, unless
absolutely necessary for which the reasons will be justified.
Vanderbilt also believes that ultimately the public needs to be satisfied with the
prevailing system of justice of a state. The public gets annoyed by the decisions
based on technicalities of procedures and pleadings. The easiest way to remove this,
he says, is to make rules of procedures rather than to have a legislative code. He also
advocates giving the trial judge real power for decision making.
Most importantly he believes that good judicial administration is only possible when
judge’s code of conduct is exemplary and that too in the eyes of the public. The
judges must take care not to be associated with any political party ideology. Therefore,
the state must ensure that the judges are selected or elected very carefully, which will
only be possible with a strong Bar Association. Honest jurors are needed for an
intelligent citizenry, if justice has to be delivered in the courts. If there is an interest
and will to show action in the the progress of the judiciary, justice will be dispensed
in letter and spirit. Whenever there is scope for improvement, lawyers should not shy
away from it. Lawyer should be devoted to the betterment of their profession and
strive to achieve the most ideal justice system meant for a society. If there is any
hesitation in this will towards the devotion to be shown to their profession, an ideal
future for building a great Justice system is bleak.

Comprehension

Question 1: What does the author imply by the expression, ‘ full growth’ in the
sentence, ‘ Many lawyers fail to attain full growth’?

Answer 1: Arthur T. Vanderbilt, an eminent attorney, legal educator and proponent of

court modernization who also was the Chief Justice of the New Jersey Supreme Court
(1948-1957), emphasizes on the need for lawyers to be mindful of the necessities of
the legal profession by being a visionary so that they are able to serve the society by
dispensing justice not only to upkeep the ethics of the profession from a personal
point of view but also meeting the expectations that is required of a lawyer from a
professional point of view. This is how he says, a lawyer will attain ‘full growth’. He
opines that lawyers should be visionaries of the legal justice system to understand and
deliver in the right way what is expected of them individually as well as on behalf of
the legal team as a whole, to attain full growth personally and professionally.

*Assistant Professor at Christ Academy Institute for Advanced Studies,Bangalore, India 2

Question 2: Comment on the use of alas in the second sentence of the first
paragraph.
Answer 2: The author laments at the lawyers having misplaced priorities while
serving their legal profession. Lawyers, whose aim is to deliver justice by mere
manipulation, to serve the interests of their clients and thus serve personal interests,
using the laws thereof provided by the Constitution as a mere set of mechanical rules,
will not be able to attain full growth. Eventually such lawyers will neither be able to
attract clients not serve them well. Such lawyers will not enjoy solid and durable
satisfactions that come from a well-rounded, complete life in practising law.

Question 3: Explain what is meant by ‘the decision in every great case is likely to
be written with the lifeblood of some lawyer.’

Answer 3: While practising law, an advocate needs to be trained in the art of

prosecuting as well as defending the legal rights of people in trial courts and on
appeal. Supporting a cause or proposal through advocacy, is one of the most intensive
work an advocate can perform. Arthur T Vanderbilt during his practise as an advocate
observed and concluded that the intensive work that is done by advocates while
delivering justice for any great case requires them to put in their mind, heart and soul
into each and every case, which becomes a path breaking case setting examples in the
field of Advocacy.

Question 4: In what sense is advocacy not a gift of the gods?

Answer 4: Arthur T Vanderbilt remarks that it is assumed that every student who
comes to the law school is a born Webster4 or a Choate5. It is blissfully assumed that
such a student has good subject knowledge as well as he is a good orator. Therefore,
no law school pays much attention to teaching its students the distinct art of trial and
its appellate aspects. As a result students do not master these skills. However, it is
important to realize that a person is not born knowing the rules of advocacy but
masters it in due course of him learning and mastering it in a law school. Thus, it
cannot be assumed that Advocacy is gift of the Gods. Assuming this can be disastrous
to the legal profession.

Question 5: Comment on and discuss the following statement:

The author holds the college, the law school and the individual lawyer equally
responsible for gaining education in the five functions of a lawyer.

Answer 5: The author lists the five functions of a great lawyer as:
a) Wise Counseling
b) Advocacy
c) Improving the profession, the courts and law
d) Leadership in moulding public opinion
e) Unselfish holding of Public office

4
1782-1852; U.S. statesman & orator,
5
Choate, as used in American law, means "completed or perfected in and of itself”

*Assistant Professor at Christ Academy Institute for Advanced Studies,Bangalore, India 3

Although these functions should be taught in law school, it is an individual lawyer’s
responsibility to learn and hone these skills not only in the law school but through out
their working years. This is what is called practising law in a grand manner.

The lawyer must use his intelligence to master the textual as well as practical
knowledge. Lawyers must have a sound knowledge of human nature and that of a
modern society. One must also be able to forecast the trends of law to create
dynamism in the field for adjudication as per the needs of the society. This skill will
help lawyers to become wise counselors.
One must also realize that sound counseling can happen only if the lawyers
understand the art of Advocacy. It is in the courtroom that the law is applied to
concrete facts in specific cases. The advocates along with the judges in the last
analysis of the case set the course of law. This skill needs to be mastered in the law
school and must be supported by the law school that ought to teach both the art of
trials and appeals, rather than assuming that Advocacy is a gift of the Gods, which
need not be taught in the school. If this is kept in mind, it will help a law student to
achieve what Webster achieved in the American law field or perhaps become a
Choate.
It is the duty of the law school professors to inculcate the values in the students so
that through out their professional career, lawyers are able to contribute to the
improving and bettering of the profession. The society is a dynamic society and each
and every profession, whether it is business or science and technology or even human
life progresses at great speeds. Therefore, lawyers cannot be lethargic and must
evolve with the changes in the society to keep abreast with the changes in other fields.
Merely teaching a course in legal ethics is not the answer. This was aptly put forward
by the great American President Theodore Roosevelt6, who emphasized that every
man owes some time to building up the profession to which he belongs.
A lawyer must also listen to public opinion intelligently in an impartial manner,
without which even courageous leadership may fail. Vanderbilt gives the classic
example of American President Franklin D Roosevelt7 who had warned of dangers of
WWII four years before Pearl Harbor8. Unfortunately he was blamed of
warmongering. And so was Charles Lindberg’s9 caution ignored, six months before
the WWI, who had warned about Germany’s plans as he had seen 30,000 war planes
in Germany. If one lawyer each from each community in his country had supported
Lindberg and moulded public opinion, then possibly history would have been
different.
A lawyer at some point in time of his life must also be oriented towards serving the
call for public office, rather than just being so immersed in serving private clients, so
that when the actual call comes, the lawyer has lost contact with the spirit of the

6
Theodore Roosevelt Jr. (October 27, 1858 – January 6, 1919) was an American statesman and writer who served
as the 26th President of the United States from 1901 to 1909.
7
Franklin Delano Roosevelt Sr.,( January 30, 1882 – April 12, 1945), often referred to by his initials FDR, was an
American statesman and political leader who served as the 32nd President of the United States from 1933 until his
death in 1945.
8
Pearl Harbor was a surprise military strike by the Imperial Japanese Navy Air Service against the United States
naval base at Pearl Harbor, in December 1941
9
Lindbergh, Charles Augustus (1902-1974), an American aviator, made the first solo non-stop flight across the
Atlantic Ocean on May 20-21, 1927.

*Assistant Professor at Christ Academy Institute for Advanced Studies,Bangalore, India 4

problems of the day in such a way that all his efforts even if he wants to put prove
abortive.
Education about these five functions of a lawyer should partly be taught in the law
school but in large measure is the responsibility of the individual lawyer from the
learnings at school that should continue till his working days.

Question 7: How and for what reason does the author plead in favour of pretrial
conferences?

Answer 7: The author observed early in his career that very often both the plaintiff
and defendant’s lawyer would not have given much importance to the case till the trail
date. This holds true for the judge too, who may not have paid much attention to the
case from the beginning without the pretrial conference. There is a possibility that
he may be unfamiliar with some proposition of the law. This may lead to unnecessary
delay in cases getting on to trail and pronouncement of judgement.
Therefore, the author pleads for pretrial conferences, where in the lawyers on each
side of a case can consult with each other about the issues of law and facts in the case
before they present it in front of the judge in an open court. The judge then can easily
proceed to the state of issues, shaking out the non-essentials in the case if any in the
pleadings. This will mean that the case will be ready for presentation at the trial itself,
without calling to attesting the witness, removing any disputes in the documents.
Defining the issue, providing the necessary amendments if any, to the pleadings
would have been taken care of and the admission of each side will be well stated. The
lawyers by this time would have got a true picture of the adversary’s case. In case any
of monetary settlement is possible outside the court, it can be managed. After the
pretrial conference, whether it is in the metropolitan, suburban or rural court, seventy
five percent of the cases can be settled between the pretrial conference date and the
date of trail without the judge saying a word about the settlement. All in all, the
lawyers, the judges will all be well versed with the details of the case, and the
proposition of law involved in the case from the beginning. This will ensure speedy
pronouncement of the verdict or settlement as the case may be, thus saving the court’s
time, ensuring that more number of cases be heard and verdicts pronounced, thus
leading to a speedy justice system, that would the benefit the society.

Question 8: What are the advantages of having rules of procedure instead of a

legislative code of procedure?

Answer 8: Legislative codes of procedures forces the judges to give decisions based
on the technicalities of procedures and pleading literally and exactly. At times the
merits of the case gets ignored. At least the court of last resort should eliminate the
legislative code of procedure and make their own rules of procedures and thus grant
autonomy to the court. The rules of procedures should be made and interpreted by
judges, which in all probability would be better designed for litigation. Such
procedures should contain a purpose of the rules in the advancement of justice and
prevention of delays and that and they should be construed in such a way that the
judges have the privilege of waiving them in case the judges conclude injustice while
pronouncing their judgement.

*Assistant Professor at Christ Academy Institute for Advanced Studies,Bangalore, India 5

The author also feels that the rules of a court must be amended continuously as is
required and it should be the responsibility of either a judicial conference or judicial
council which keeps reviewing and improves the overall system of dispensation of
justice. This will enable equitable justice removing the scope of delays which will
make the public happy. More importantly the citizens will benefit the real purpose of
a judiciary.

Q 9: What is needed to have good judicial administration?

Answer 9: To have good judicial administration it is important to have good judges,

who know the law, who can think, express themselves clearly and who are diligent in
their work. Moreover, the judges should be honest, who do not compromise the code
of ethics. Most importantly, in the eyes of public the judges must pass the code of
honesty and integrity. Public perception of an inequitable justice system beats the
very existence of a judicial system in any country.

Question 10 : Why is ‘thinks’ italicized in the sentence: ‘ I don’t know that these
28 percent are wrong in their impression of their judges - I would stake my life
on that statement - but the fact that the public thinks they are dishonest is just as
bad from the standpoint of respect for the law as if they were in fact so.’

Answer 10: Based on the answer given by the 28 percent of the people who were
questioned in a national poll about their local and county judges that they thought that
the judges were dishonest, Vanderbilt felt the answer was far from being true. He said
he would stake his life on the fact the judges were honest but ultimately the public
perception about judges being dishonest is also to be taken seriously. He felt that the
public having scant respect for the judiciary and discounting their role in the upkeep
of the law in a society, also needs to be considered. The word think is italicized
because Vanderbilt in his speech stresses that the notions of public even if it is far
from the truth also needs to be considered seriously. He felt that this was bad from the
standpoint that the public had scant respect for law and have declared that it is the
truth.
He further explains how the perception is built because some judges move around
with the candidates for the post of a Governor, for a senator, for the Congress and the
state legislature, attending all political meetings, dinners are clambakes10. The public
very well knows that these judges are smarter among the political people and judges
must be running their political and primaries campaign. A judge, if he gets re-elected
time and again fits into this bill even more appropriately and is generally declared
dishonest by the public with even more conviction.

Question 11: ‘Does it not suggest to us that in every state we should carefully
examine the method of the selection of judges - and that goes for the appointed
judges as well as elected judges?’ What does ‘it’ refer to in the above sentence?

Answer 11: The ‘it’ means public perception about judges, including the appointed as
well as elected judges being dishonest. Vanderbilt believes that this is built because
10
Informal. any social gathering

*Assistant Professor at Christ Academy Institute for Advanced Studies,Bangalore, India 6

these judges move around with the candidates for post of a Governor, for a senator,
for the Congress and the state legislature attending all political meetings, dinners are
clambakes. The public very well knows that these judges are smarter than the political
people and the judges must be running their political and primaries campaign. A judge
if he gets re-elected time and again fits into this bill even more appropriately and is
generally declared dishonest by the public with even more conviction.

Question 12: Find out the linguistic evidence from the text to suggest that it is a
speech.

The entire essay is very interactive, with the author posing questions and giving
answers. Use of discourse markers such as: ‘first of all, next, finally suggest that it is a
speech. He also quotes personal examples; ‘When I was a law student, the teaching of
the procedural law was limited to common law pleading and evidence; All I can
remember …’ Such sentences in the essay prove that he is addressing a gathering of
law students. He also uses the word, ‘you’ which clearly indicates that he is delivering
a speech. Further he ends the speech by saying, “Let me end by quoting him….using a
quote of Mr Justice Holmes11. “ Law is business to which my life is devoted, and
should I show less than devotion for if I did not do what ……my heart.” These
linguistic evidence suggest that Vanderbilt is delivering a speech.

Reference:

1. Bhatnagar. R.P. (2016). Law and Language. “In the Court”. ISBN:
978-93-5138-012-2. Bangalore. M.P.P House. pp. 98-108.
2. Vanderbilt. Arthur. T (January 1, 1954). The Five Functions of a Lawyer:
Service to Clients and Public. American Bar Association Journal. 40 (1). pp.
31-34,76-77. Retrieved on Feb 6, 2018 from
https://www.jstor.org/stable/pdf/25718670.pdf?seq=1#page_scan_tab_contents

11
An American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to
1932. Noted for his long service, his concise and pithy opinions, and his deference to the decisions of elected
legislatures, he is one of the most widely cited United States Supreme Court justices

*Assistant Professor at Christ Academy Institute for Advanced Studies,Bangalore, India 7