POLITICAL ISSUES BASIC TO IMPROVING OUR LIVES
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The Problem (overview):
Judges and the Court System
Appointed judges and the appointment process
Elected judges; the process and the role of money
Citizen's experiences and their perception of the court system
Judicial checks and balances (or lack thereof)
Judges conflict of interests
The Legal Profession:
A few statistics and a paradox
Abuses of the Process
The American litigation tradition (sometimes frivolous)
SLAPP Suits (hostile to the First Amendment)
Solutions, some suggested reforms:
Small Claims Court changes
Rules of evidence
Law suits ("Frivolous" - 2 phase verdict reform)
SLAPP suits reform
Civil and Criminal
Lack of access to the courts and attorneys for small non-profits and the poor
Other group's solutions to Judicial Reform (both civil and criminal).
The Judicial Reform Act (JRA)
Fully Informed Jury (FIJ)
Reducing frivolous law suits, Loser Pays
Related Website Links
If material is from another site, their web link is at the bottom and the top of that material.
The Problem (overview):
Judges and the Court system.
The average US voter is even less aware of the court system, its political alignments and the history of judges than that of other elected and appointed representatives in government (The US Supreme Court members may be the only exception).
Yet, the Judicial system represents one-third of the power of government to effect peoples lives in the United States, the other two being the Administrative and Congressional branch of government. Most states in the US have a somewhat similar structure to the federal three-branch structure.
To a large extent judges are subject to the same corruptions as the other elected officials, as outlined in this site's section on Campaign Reform. Many judges are elected and raise money in the same way as other politicians; or they are appointed by the same politicians who have been elected with large contributions from moneyed, special interest groups and corporations.
These same politicians select judges who will most likely represent what their large donors wish. The effect of money on judges, elected or appointed, is somewhat similar to other politicians; it is a corrupting force.
There are even less checks and balances within the judicial system than with elected officials: Their terms are longer, some for life; normally judges are less subject to public scrutiny (the news media's fault); the judicial system is even more of a closed system with judges and lawyers being there own keepers (outside intervention such as impeachment is effectively non-existent).
Some would argue that life terms-of-office insulate judges from the corruption of money; one only has to look at how a given judge was selected and by whom, to see the effect of money. Even if one were to argue that once appointed a judge will transcend his or her money-induced appointment, there is a point of diminishing return, if a system is attempting to be democratic and representative of the people's current needs, with the length of appointment.
A good case could be made for ten year appointments as opposed to life appointments.
The appointment process:
The noble idea that the appointment and confirmation of judges is supposed to be a process above the standard partisan politics, was lost on the U. S. Senate of the last four years. The number of judicial appointments held up by the Senate Judiciary Committee, Chaired by Orrin Hatch (Republican) is unprecedented in the history of America.
Even the Chief Justice of the Supreme Court Renhquist, a very conservative Republican, has called the current process unfair and pointed out that it is causing major delays within the total federal court system. (see the following congressional record)
The following was excerpted from US Senate proceedings in Sept 1999 (the situation is still similar in year 2000). It shows the degree that partisan politics plays in judicial appointments in the current congress.
Senator Leahy speaking:
"It is September 29 (1999) and the Senate has acted on only 17 of the 68 judicial nominations the President has sent us this year. We have only 4 weeks in which the Senate is scheduled to be in session for the rest of the year.
By this time last year the Committee had held 10 confirmation hearings for judicial nominees, and 43 judges had been confirmed. By comparison, this year there have been only four hearings and only 17 judges have been confirmed . Thus, the Senate is operating this year at less the half the productivity of last year. We remain miles
behind our pace in 1994, when by this time we had held 21 hearings and the Senate had confirmed 73 judges.
The Florida Sun-Sentinel said last week: "The 'Big Stall' in the U. S. Senate continues, as senators work slower and slower each year in confirming badly needed federal judges. This worsening process is inexcusable, bordering on malfeasance in office, especially given the urgent need to fill vacancies on a badly undermanned federal bench. . . . The stalling, in many cases, is nothing more than a partisan political dirty trick."
For the last several years I have been urging the Judiciary Committee and the Senate to proceed to consider and confirm judicial nominees more promptly and without the months of delay that now accompany so many nominations. Over the last couple of weeks independent studies have verified my complaints and concerns.
According to the report released last Wednesday by the Task Force on Judicial Selection of Citizens for Independent Courts, the time it is taking for the Senate to consider nominees has grown significantly, from an average of 83 days in 1993 and 1994 during the 103rd Congress, to over 200 days for the years 1997 and 1998 during the last Congress, the 105th. If fact, if they were to look at the average number of days from confirmation to nomination on an annual basis, as I have, they would see that it broke records in each of the last three succeeding years 1996, 1997 and 1998. In 1998, the average time for confirmation was over 230 days.
The report also verifies that the time to confirm female nominees is now significantly longer than that to confirm male nominees- a difference that has defied logical explanation. They recommend that "the responsible officials address this matter to assure that candidates for judgeships are not treated differently based on their gender."
The report recommends that the Senate should eliminate the practice of allowing individual members to place holds on a nominee.
This summer Professor Sheldon Goldman and Elliot Slotnick published their most recent analysis of the confirmation process in President Clinton's second term in Judicature magazine. They note the "unprecedented delay at both the committee and floor stages of Senate consideration of Clinton judicial nominees" and conclude: "It is impossible to escape the conclusion that the Republican leadership in the Senate is engaged in a protracted effort to delay decision making on judicial appointments whether or not the appointee was, ultimately, confirmable."
In spite of efforts last year in the aftermath of strong criticism from the Chief Justice of the United States, the vacancies facing the federal judiciary remain at 65 with 17 on the horizon and the vacancies gap is not being closed. We have more federal judicial vacancies extending longer and affecting more people. Judicial vacancies now stands at approximately 8 percent of the federal judiciary. If one considers the additional judges recommended by the judicial conference, the vacancies rate would be over 15 percent and total over 135.
Nominees deserve to be treated with dignity and dispatch -- not delayed for two and three years. We are seeing outstanding nominees nit-picked and delayed to the point that good women and men are being deterred from seeking to serve as federal judges. Nominees practicing law see their work put on hold while they await the outcome of their nominations. Their families cannot plan.
Certainly no President has consulted more closely with Senators of the other party on judicial nominations, which has greatly expanded the time this Administration has taken to make nominations. The Senate should get about the business of voting on the confirmation of the scores of judicial nominations that have been delayed without justification for too long.
Just last month, in his remarks to the American Bar Association, the President, again, urged us to action. He said: "We simply cannot afford to allow political considerations to keep our courts vacant and to keep justice waiting." We must redouble our efforts to work with the President to end the longstanding vacancies that plague the federal courts and disadvantage all Americans. That is our constitutional responsibility. I continue to urge the Senate and, in particular, the Republican leadership to attend to these nominations without obstruction and proceed to vote on them with dispatch."
Elected judges; the process and the role of money.
The following information about the effect of money on elected judges comes from the state of Pennsylvania. The data could apply to many states, Texas for instance has a worse situation than Pennsylvania.(see 60 Minutes interview with judges on the subject)
The following is from: http://www.libertynet.org/pmcpms/blue/blue_Main.htm
1. In July 1998, an American Bar Association (hereinafter referred to as "ABA")
Task Force reported that from 1983-1989, the cost of a race for the Pennsylvania Supreme Court had increased 500% and, from 1987-1997, had increased 159%. Report and Recommendations of the Task Force On Lawyers' Political Contributions, Appendix 3, Table 1, page 83. The largest amounts of money raised by contenders for a seat on the Supreme Court increased from $407,711 and $115,457 in 1987 to $1,848,142 and $926,019 by 1995.
In a press release issued September 3, 1997, announcing the appointment of a Special Commission To Limit Campaign Expenditures (hereinafter referred to as "Special Commission") to study judicial campaigns, Pennsylvania Supreme Court Chief Justice John P. Flaherty Jr. stated: "This commission reflects the Court's concern for the integrity of the system and the perceptual danger to that integrity due to the increasingly large amount of money involved in judicial elections."
2."Justice for Sale." A poll commissioned by the Special Commission in January1998 indicated that 88% of the respondents believed that decisions made by judges in their courtrooms are, at least sometimes, influenced by large contributions made to their election campaigns. (Lake Sosin Snell Perry & Associates and Deardourff/The Media Company poll)
That an overwhelming majority perceive there to be a link between campaign donations and judicial rulings is highly disturbing. (5) While there is scant concrete proof in Pennsylvania of campaign dollars yielding preferential treatment in the courtroom (6), there is clear anecdotal evidence that many donors support candidates who they believe will be predisposed to rule in their favor. (7)
3. Lawyer Donations. While there is an appearance of impropriety occasioned by any potential litigants contributing to the campaigns of future judges, contributions from lawyers are perceived to be particularly problematic. (8)
Research recently compiled by the ABA reveals that, from 1981 to 1991, 57% of all contributions to candidates for the Pennsylvania Supreme Court came from lawyers and law firms. In 1995, 78% and 85% of the two Democratic Supreme Court candidates' contributions came from lawyers. Interestingly, lawyers' donations made up a much smaller portion of the totals secured by their Republican opponents: 17% and 33%. (Report and Recommendations of the Task Force on Lawyers' Political Contributions, Appendix 3, Table 2, page 91)
It is particularly telling that candidates themselves recognize that much of the criticism directed toward campaign fundraising has focused on the legal community. One 1997 candidate for a Pennsylvania statewide judgeship pledged that contributions from lawyers would not exceed 1/3 of the total donations received. Another 1997 statewide judicial candidate limited lawyer donations to a maximum of $100.
4. Negative Campaigning. Partisan contests often result in campaign tactics designed to impugn the character and qualifications of opponents. While voters have come to expect this with politicians seeking other offices, many believe that negative campaigning -- such as portraying opponents as "soft on crime" while touting one's own "law and order" credentials -- diminishes the integrity and independence of the judicial office. (9)
Concern over the proliferation of inflammatory advertising prompted the Pennsylvania Bar Association to develop fair advertising guidelines in time for the1995 judicial elections.
5. Post-Election Campaign Fundraising. The pressure to contribute in judicial races is exacerbated once a candidate is elected to the bench. Until the Pennsylvania Supreme Court acted in November 1998 to require judicial candidates to terminate all fundraising activities "no later than the last calendar day of the year in which the election is held," (10) the search for funding was permitted six months into the next calendar year.
6. Voter Unfamiliarity With the Candidates. Polls confirm that an overwhelming majority of the voters have no idea who is running for statewide judgeships. A survey of registered voters in Erie County taken in May 1997 showed that, when asked to name a candidate for the appellate court other than the one judicial hopeful from Erie, only 2% of the 1,966 voters even knew another candidate's name. Editorial, Erie Morning News, May 22, 1997.
7. Voter Apathy. Judicial races draw few voters to the polls. The 1997 general election brought out 32% of voters statewide (attributed in part to a controversial Allegheny County sales tax referendum), and only 18% in Philadelphia where contests for appellate judgeships topped the ticket. These figures, however low, are still an improvement over the primary election that same year. According to figures compiled by the Philadelphia-based Committee of Seventy, an election watch-dog group, statewide voter turnout was barely 20% while participation in the state's largest city was a scant 10%.
8. Geographical Imbalance On the Bench. Twenty-six of the current 31 statewide judges hail from either Pittsburgh or Philadelphia or their adjacent counties. The1997 election marked the first time in 16 years that a Justice from another area was elected to the state Supreme Court. Only eastern and western counties are represented on the Commonwealth Court.
In an unpublished article sent to PMC and to selected state lawmakers, one unsuccessful "outsider" -- a 1997 Superior Court candidate -- explained the impact of this on the pool of candidates seeking statewide judgeships: "[M]any of my judicial friends from small counties do not even attempt to obtain an appellate court seat, knowing that their geographic base is too small to support a candidacy."
That geography plays a key role in voter choices was made clear in the 1997 Democratic statewide judicial primary election. Aided by a contested mayor's race on top of the county ticket, all six successful nominees hailed from Allegheny County. (Four of those candidates had spent significantly less than their opponents). Allegheny County voters expressed their loyalty even in quieter primaries: three of the four successful 1995 Democratic statewide judicial primary candidates were from Allegheny County as well.
9. Qualifications Irrelevant. A persistent complaint about judicial elections is that the qualifications of candidates are insignificant to the point of irrelevancy. While highly capable individuals run for, and reach, the appellate bench, many believe this occurs despite elections and not because of them. As polls have shown, most voters have only the sketchiest information upon which to base their ballot choice.(11)
This is not to imply the lack of efforts to determine which candidates are best suited for judicial service. Endorsements of statewide judicial candidates are made by many newspapers, and candidate ratings are issued by certain statewide and local organizations. One such organization, the Pennsylvania Bar Association (PBA), sought to improve its ratings process during the 1997 elections by joining with the Pennsylvania Newspaper Publishers' Association to co-sponsor an independent Pennsylvania Judicial Evaluation Commission. A poll taken two months after the 1997 elections showed that 78% of the respondents had not read or heard anything about the Pennsylvania Judicial Evaluation Commission.Lake/Deardourff poll. (page 3, question 9.)
10. Few Minority Judges. Within the minority communities, the perception exists that it is exceedingly difficult for minority candidates to attain statewide judicial office. Only two African-Americans now sit on the appellate courts, and only three others have ever served (one was an interim appointment who never ran in a statewide judicial election). No members of other racial minority groups have ever served on the appellate bench.
In the 1997 election, two African-Americans sought, but did not receive, the Democratic party endorsement for one of the four seats on the Superior Court. Neither of those candidates survived the primary, finishing 5th and 11th in a field of 11 Democrats.
11. Name Recognition. With candidates largely unknown to the electorate, an easily recognizable name can provide an extraordinary advantage (12) and, sometimes, the key to success. So much so that it is not unheard of for candidates to change their names prior to an election. (13)
One 1997 statewide judicial candidate who had the same surname as a former mayor of Pittsburgh (no relation), an incumbent Supreme Court justice (no relation) and an incumbent Commonwealth Court judge (no relation) survived the Democratic primary despite having received a "not recommended" rating from the Pennsylvania Judicial Evaluation Commission following his refusal to submit to the evaluations process and having spent less money than all 10 opponents. (That candidate later lost in the general election).
12. Ballot Position. PMC is unaware of any statistical analysis of the significance of ballot position in Pennsylvania's statewide judicial elections. However, a study of the impact of ballot placement conducted by a Maryland political scientist suggested that, in non-newsworthy races, the candidate whose name appears first has a 3-4% advantage over competitors. The New York Times, July 13, 1998.
Both the Democratic and Republican state party chairmen, commenting on Pennsylvania's 1993 judicial races, conceded that a crowded field increases the importance of drawing a high spot on the ballot. The Patriot-News, Harrisburg, March 20, 1997. (14)
The average American's experience with the Judicial System.
The following are results from a national survey at: http://www.ncsc.dni.us/PTC/results/execsumm.htm
Only 10% of the survey respondents felt the courts in their communities handled cases in an"Excellent" manner, with 20% indicating criminal cases and family relations cases are handled in a "Poor" manner and nearly 30% indicating juvenile delinquency cases are handled in a "Poor" manner.
Hispanic respondents expressed the greatest satisfaction with the performance of the courts.
Whites/Non-Hispanics report assessments that were somewhat lower than those given by Hispanics.
The opinions of African-Americans were consistently the most negative about the courts.
Approximately 53% of respondents indicated some personal involvement in the courts, with almost one-half of personal experience taking the form of jury service.
The proportion of Americans who have served on a jury has grown over the last 16 years, rising from 16% to 24%.
Respondents who reported a higher knowledge about the courts expressed lower confidence in courts in their community.
Almost two-thirds of respondents felt they knew "Some" or "A Lot" about the courts. Respondents indicated reliance on electronic sources (59%) and print sources (50%) for information about the courts.
The American public is close to evenly split between those who believe the media's portrayal of the courts is accurate and those who disagree.
Sixty-eight percent of respondents disagreed with the statement "It is affordable to bring a case to court," with 38% strongly disagreeing.
Eighty-seven percent of Americans strongly believe that having a lawyer contributes
"A Lot" to the cost of going to court.
Likewise, 42 to 57% of respondents said court fees, the slow pace of justice, the complexity of the law and the expenditure of personal time (e.g., missing work) contributes "A Lot" to the cost of going to court. At the same time, the majority of Americans (six out of ten) believe that it would be possible to represent themselves in court if they wanted to.
Most respondents (74%) "Strongly" or "Somewhat" agree that court personnel are helpful and courteous, but as compared to Whites/Non-Hispanics, African-Americans were significantly less likely to agree with the statement "Court personnel are helpful and courteous."
Respondents overwhelmingly believe cases are not being resolved in a timely manner-46% strongly agree. Fifty-six percent of respondents agree that "Most juries are not representative of the community" and, as compared to Whites/Non-Hispanics, both African-Americans and Hispanics were more likely to agree.
Seventy-nine percent of respondents agree that "Judges are generally honest and fair in deciding cases" and, as compared to Whites/Non-Hispanics, both African-Americans and Hispanics were significantly less likely to agree.
Although most Americans (83%) feel that "people like them" are treated either better or the same as others, that perception is not shared by African-Americans. Two-thirds of African-Americans feel that "people like them" are treated somewhat or far worse than other people.
Almost 70% of African-American respondents think that African-Americans, as a group, get "Somewhat Worse" or "Far Worse" treatment from the courts, whereas over 40% of White/Non-Hispanic and Hispanic respondents have that opinion.
Forty-four percent of respondents agree that "Courts are out-of-touch with what's going on in their community" and, as compared to Whites/Non-Hispanics, all other groups were more likely to agree.
The vast majority of respondents (81%) agree that politics influences court decisions. This pattern holds across racial and ethnic groups.
Seventy-eight percent of respondents agree that "Elected judges are influenced by having to raise campaign funds" and, as compared to Whites/Non-Hispanics, other groups were more likely to agree.
Judicial Check and Balances (lack thereof):
The following quote applies to any life-time judicial appointment such as the federal Circuit Court of Appeals:
"They enjoy immunity from suit and lifetime perpetuity; they never face
or answer to the voters. Their salaries cannot be touched, no matter how treasonous
against American principles, corrupt or conspiratorial the court may be. While
impeachment by Congress is possible, never in American history has it been done.
There are no checks and balances, just sheer unbridled power. The maxim "Power
corrupts, and absolute power corrupts absolutely,..." is increasingly appropriate.
The following is from: http://www.geocities.com/Pentagon/6315/law/
An inside look at the Supreme Court Closed Chambers by one of its former law clerks Ed Lazarus came out in 1998. He writes: justices "resort to transparently deceitful and hypocritical arguments and factual distortions as they discard judicial philosophy ... in favor of bottom-line results." If anything, it is worse on appellate courts and with judges because they have less scrutiny.
Anyone who has been in court will recognize the truth of what Lazarus writes - judges decide on whim or status who they want to win and truth and justice have nothing whatever to do with it.
An early 1998 survey of civil lawsuits in four states by the Kansas City Star, found 57 examples of judges deciding cases where they had a financial interest in one of the litigants. That was about 17 percent of the time. The judges even admitted it but said they were too busy or blamed their staff. Those are excuses that would never work if you were guilty of breaking the law or ethical violations.
The problem of corruption in judges is so constant that it is the reason that the English adopted the jury system. People have more faith in twelve average people.
Unfortunately, in America judges can override jury decisions and manipulate them through jury instructions.
"The abilities required in a good interpreter of the law, that is to say, in a good judge, are not the same with those of an advocate; namely the study of laws...The things that make a good judge, or a good interpreter of the laws, are, first, a right understanding of that principal law of nature called equity; which depending not on the reading of other men's writings, but on the goodness of a man's natural reason, and meditation, is presumed to be in those most, that have the most leisure, and had the most inclination to meditate thereon.
Secondly, contempt of unnecessary riches and preferments. Thirdly, to be able in judgment to divest himself of all fear, anger, hatred, love, and compassion. Fourthly, and lastly, patience to hear; diligent attention in hearing; and a memory to retain, digest, and apply what he hath heard." Thomas Hobbes, 1651
A 1993 national commission found that 95 percent of all complaints against federal judges were dismissed summarily by other federal judges put in place to review them.
Judges conflict of interests:
The following excerpt examines an area of Judicial conflict. The large institution mentioned could be replaced in the example by other institutions and corporations, the same problems apply.
A letter from: Carl Bernofsky on site: http://www.tulanelink.com/tulanelink/reform_99a.htm
April 10, 1999:
Professor Leslie W. Abramson, in the introduction to his book(1) on judicial disqualification, states: "A fundamental goal of the American legal system is equal justice under the law. One means of achieving that goal is to insure that court proceedings are presided over by a neutral and detached judge. A judge who is free of bias or interest in the parties, attorneys, or the subject matter of the litigation is also a necessary prerequisite to maintaining public confidence in the legal system." Abramson then goes on to describe various circumstances in which a judge's impartiality might reasonably be questioned, thus prompting his recusal.
Those who instruct young law students generally assume this moral high ground when it comes to teaching ethical values. Nevertheless, it is possible for university law schools to abuse the very principles they purport to teach, creating a two-track system of ethical standards. The potential for this abuse arises when a university engages judges to serve as faculty members in its law school, and these same judges are then called upon to sit in cases in which the university is a defendant.
The appointment of judges as adjunct professors in law schools is a common practice that gives law students the valuable opportunity to view legal issues from the experience and perspective of a judge. In exchange, the appointed judge enjoys the prestige of a university professorship, fulfills a service obligation to the profession, interacts with administrators and other law professors in a university setting, and has other privileges. The dedication of a faculty judge to the university may be measured, in part, by his willingness to teach without financial compensation, although judges are already well-compensated by the public, whom they have sworn to serve.
A reasonable person would understand how a judge who is devoted to a university might feel obliged to protect it from a potentially costly judgment. This creates an ethical dilemma in which justice itself may become a casualty. To avoid this dilemma, a judge should not allow himself to be placed in a position that would cause him to be torn between loyalty to a university and his civil duty to provide justice for what may be a plaintiff's meritorious claim. However, in cases where a judge's vision is so blurred by partisanship that his judgment over this issue is impaired, the Appellate Court should have the good sense to recognize and correct the problem. To do otherwise would only damage public confidence in the judiciary.
The issue of faculty judges who sit in cases brought by faculty plaintiffs against the same defendant university is no mere academic question. There are a number of reported instances(2) where plaintiffs, associated with a university, failed in their attempt to recuse a judge associated with the same defendant university, and others are still pending. It is a troubling and growing concern among those who feel that the breach of ethics inherent in this scenario works to erode public trust in the judicial process.
That judges associated with a university may feel obliged to defend it is not lost on administrators who have aggressively sought to add judges to their law school faculties. To understand how an educational institution can benefit from this situation, one need look no further than to Tulane University, with which the author is familiar. Tulane's Law School has at least four judges(3) who are adjunct professors and who have been repeatedly called upon to preside in lawsuits brought against Tulane by its former employees. In these cases, the advantage gained by Tulane is evident from the degree of success it has enjoyed in meeting the legal challenges of the aggrieved plaintiffs. One can only speculate on how many other university law schools with judges on their faculty are responsible for a state of affairs similar to Tulane's. It is a subject that merits nationwide examination. However, one thing is clear: as long as judges are allowed to disregard the code of judicial conduct for political considerations, the principle of equal justice under the law will remain an elusive goal.
The Legal Profession
A few lawyer statistics:
The American Judicial system has evolved to be the most litigious system in the world.
The US has approximately 2/3's of the worlds lawyers while only 1/23 of the world's population.
The United States has 281 lawyers per 100,000 population; Germany 111; Britain 82 and Japan 11.
Year; Number of Lawyers; Ratio to population; - 1945; 169,489; 1/790 -1990; 777,119; 1/320
There is a "burgeoning number of lawyers at the same time that increasing numbers of ordinary citizens are unable to obtain effective and affordable representation of their personal legal problems." (McCrate -Duke Univ. site.)
The ABA, in a 1995 report states that they are failing miserably with poor people practically unrepresented and moderate income people under represented more than 60 percent of the time.
"At the state level, NY is supposed to have the nation's top oversight organization. Over 85 percent of complaints are dismissed without investigation. Since they have a cartel and regulate themselves, you might expect that they would recognize the high responsibility. No, the issue of whether clients are well served never concerns them. They never punish lawyers who violate fiduciary duty laws. The American legal system is simply a money making machine. The whole argument for cartel and licensing restrictions was to guarantee quality of legal services, but these moral lepers demonstrate what a fraud that argument is by showing they don't even care whether customers are ripped off, cheated, or receive any legal value at all. Failure to regulate clearly shows that the rationalization for the cartel was at its core a fraud, a way to cheat the public. The CA Bar receives 140,000 hotline complaints a year and 'investigates' 15,000 allegations of attorney misconduct. This shows how well licensing works - the state should not put its seal of approval on these attorneys, but rather "let buyers beware". At least it would cost consumers less when they get fleeced, they would have more choice and they would be forewarned."
The American litigation tradition (sometimes frivolous)
Part of the tradition that has been established in the American judicial system is that "everybody is entitled to their day in court" which on the surface seems good.
However, the real phrasing of the tradition as it is practically implemented should be - "everybody is entitled to their day in court no matter how frivolous the plaintiff's case, no matter how long it drags the defendant through the expensive process while the plaintiff is hoping that the defendant or the defendant's insurance company will just settle to get rid of the protracted and expensive procedure!"
The plaintiff and the plaintiff's lawyer know that judges almost never require the plaintiff to pay the defendant's court costs even if the plaintiff's action proves groundless when it finally reaches the day in court. So, going on legal "fishing expeditions" hoping for at least a settlement in groundless lawsuits, has little disincentive.
The exception to this restatement of the "day in court tradition" is if the defendant is a politically well connected corporation represented by a well politically well connected law firm, then the case has a better chance of being tossed even if the plaintiff has a good case.
To some extent, we get the worst of both worlds. Small numerous "looking for a quick settlement" extortion cases clogging the courts and brutalizing relatively innocent citizens, versus large corporations or politically well connected individuals getting off.
SLAPP Suits - An Abuse of the Litigation Process
The United States and California constitutions grant every person the right to participate in government and civic affairs, speak freely on public issues, and petition government officials for redress of grievances. Yet, individuals and community groups are being sued for exercising these constitutional rights. These suits are known as "SLAPPs," or "Strategic Lawsuits Against Public Participation."
Generally, a "SLAPP" is a (1) civil complaint or counterclaim; (2) filed against individuals or organizations; (3) arising from their communications to government or speech on an issue of public interest or concern. SLAPPs are often brought by corporations, real estate developers, government officials and others against individuals and community groups who oppose them on issues of public concern. SLAPP filers frequently use lawsuits based on ordinary civil claims such as defamation, conspiracy, malicious prosecution, nuisance, interference with contract and/or economic advantage, as a means of transforming public debate into lawsuits.
Ultimately, most SLAPPs are not legally successful. Nevertheless, while most SLAPPs do not succeed in court, they "succeed" in the public arena. This is because defending a SLAPP, even when the legal defense is strong, requires a substantial investment of money, time, and resources. The resulting effect "chills" public participation in, and open debate on, important public issues. This chilling effect is not limited to the SLAPP defendants -- other people refrain from speaking out on issues of public concern because they fear being sued for what they say.
The filing of a SLAPP also impedes resolution of the public matter at issue, by removing the parties from the public decision-making forum, where both the cause and resolution of the dispute can be determined, and placing them before a court, where only the alleged "effects" of the public controversy may be determined. For example, imagine a company asks for a zoning variance to place an incinerator in a residential area. When local residents object to the city council, the company sues them for "interference with contract." The judge hearing the suit cannot decide the real issues -- the location of the incinerator -- but will have to spend considerable judicial resources to decide the side issues of the alleged "damages" or other consequences of the public debate on the real issues.
Every year, thousands of people are sued for participating in government or for speaking out on public issues. SLAPP targets have been sued for engaging in a wide variety of protected speech and protected expression activities, including:
The Solutions, some suggested reforms.
There are no panaceas to reforming a system as huge, complex and entrenched as the American judicial system, only small important improvements.
Small Claims Court changes:
Increase the number of Small Claims Courts and increase the claim amount to at least $25,000 indexed by the inflation rate automatically each year. Use the court model that exists in some states that excludes lawyers representing defendants and plaintiffs in the court setting.
The court procedure should be divided into at least two phases: The pre and post penalty phases. The judge's decision should be rendered before asking questions about the individual protagonist's net worth. No evidence should be allowed about the net worth of the individuals or companies involved until the penalty phase of the Small Claims procedure.
Small Claims Court Judges should be required to have some form of standardized legal training and experience but it should not be required that they must have passed the bar exam.
The particulars of how the judges are appointed or elected to Small Claims Court is important and will be detailed in the future on this site.
These reforms should partially address two problem areas:
It would allow for greater, easier and less costly access to the court system by the average citizen. Small Claims Court cost containment is important in this regard.
These Small Claims Court reforms should decrease the cost, frequency and delays associated with the many relatively small civil litigation claims now crowding Municipal and/or Superior Courts. As a by-product, it will decease the delays in larger civil litigation because it will decrease the case load of the regular court system.
Some form of this Small Claims Court improvement is frequently proposed in state legislatures but is constantly defeated due mainly to lawyer's association lobbying efforts.
Rules of evidence
For all civil law suits principally directed against individuals (not corporations) the rules of evidence should be changed so that the court cannot require the defendant to answer questions about the depth or shallowness of a defendant's wealth (or if they have insurance coverage and how much). The corporate exception is not referring to corporations that are only one individual like a professional corporation.
It is well know that numerous law suits intended to extract a monetary settlement, are propelled and prolonged in direct proportion to the defendant's wealth or their depth of insurance coverage. The merits of a lawsuit should be the determining factor not the fees the attorneys from both sides can directly or indirectly bill the defendant and/or their insurance company.
One may ask, why should only individuals not corporations be shielded from the problem of "the worth of a defendant not the merits of the case" being the base of litigation? In theory this same unfairness applies to companies, but in practical, not legal terms, a corporation is not an individual.
The pratical intention of the proposed reform is to create changes that improve the problem without going overboard. In the case of most C corporations, the plaintiffs are likely to learn the net worth of the defending corporation through public records and credit checks; why impede that process? C corporations normally "shield" their officers and stockholders or at a minimum spread the monetary risk. Also the real damages that a corporation can cause are in most cases large compared to an individual.
Frivolous Lawsuits (2 phase verdict reform)
As many Americans have experienced, if you are sued and you successfully defend yourself in court, the chance of being reimbursed by the plaintiff for all your court and legal costs is very small. As described in the problem section of this Judicial Reform discussion, there is very little incentive for clients and lawyers NOT to start down the litigation path in the hopes of extracting a settlement.
If we want to solve the problem of frivolous lawsuits (the ones that probably cause so many lawyer jokes), and as a country we want to keep our tradition of "everybody gets a day in court no matter what", then we should change the burden of proof requirements for "malicious" litigation or better, add a new legal category, something less than malicious in its burden of proof.
Perhaps, all civil cases that reach a jury or judge verdict should be required to have a secondary verdict be rendered right after the first. If the plaintiff lost on all complaints against the defendant, then the jury or judge would decide if the litigation was without any merit (i.e. frivolous).
The jury or judge would then be compelled to award some degree of reimbursement to the defendant based on the legal and court costs the defendant has incurred. To achieve the correct total system balance, an appropriate range might be from 25% to 125% of incurred costs. The percentage the jury or judge assess should be based on the degree of frivolousness they found in the plaintiff's case.
Good features of this proposed reform are: One, there is no second trial with the inherent delays and costs. Two, there is an automatic disincentive to continue litigation that has a high potential to be classed as frivolous. Three, it still allows good cases to proceed with little disincentive.
Judges with some constraints can effectively implement many of the elements described above now, but they do not because of a number of political and legal reasons. This is why it probably would require a statute to become an effective reform.
Reform of SLAPP Suits
A simple and reasonable reform would be to have other states enact a law modeled on California's statue.
The information below is from another site: http://www.sirius.com/~casp/survival.html
California's law that specifically protects people from SLAPPs. Code of Civil Procedure section 425.16, which took effect in 1993, allows a judge to decide at the outset of the suit whether the SLAPP has a "probability" of winning. If the judge finds that it does not, the SLAPP must be dismissed, and the SLAPP target wins his or her legal defense costs and attorneys' fees.
The expressive activity which is protected under the new California law is broad. Code of Civil Procedure section 425.16 states that activity which is protected under the law includes:
Other states have similar protections against SLAPPs. Washington and New York
have "anti-SLAPP" statutes: Washington Revised Code sections 4.24.500 - 520;
New York Civil Practice Law, Rule 3211(g) and Rule 3212(h), and New York Civil
Rights Law sections 70-a and 76-a. The Colorado Supreme Court ruled in 1984
that citizens of that state are protected from SLAPPs (Protect Our Mountain
Environment v. Superior Court, 677 P.2d 1361). For the text of statutes
and court opinions from these and other states, see Other States: Statutes and
Cases (you can access these materials from our Home Page or any main menu).
Solutions to Access to the Courts and Attorneys for Small Non-profits and the Poor
An excerpt from a Duke University law school web site:
"Pro Bono, so far, this is an aspirational rule only.
Even the earliest canons of ethics recognized the professional obligation of individual attorneys to assist the poor.
The ABA calls upon lawyers to contribute 50 hours per year and says a substantial amount needs to be legal representation."
Following is a proposal for a decentralized, somewhat non-bureaucratic, partial solution based on relatively small changes in the way law firms handle pro bono donations:
Codify in law-firm licensing and federal tax-law, a form of required Pro Bono legal work donations, with the required level related to the firms net profit. In addition to the current tax deductibility that now exists, there would be a graduated (by the firms net profit) tax penalty if the law firm did not meet minimum pro bono donation levels set by the firm's income bracket. In addition to the in house pro bono work, the firm could partially achieve their pro bono requirement by donating an attorney's time or cash to a non-profit set up to do legal work for the poor and/or small non-profits.
There should also be a set of rules governing the level of income and size of a non-profit that qualifies to receive the pro bono deduction; this is to prevent abuse of the intention of the pro bono deductibility.
Solutions from some other groups to Judicial Reform (both civil and criminal)
(knowthecandidates.org does not endorse all details of the following three proposals but feels they have some merit)
The Judicial Reform Act (JRA)
AUTHOR'S SHORT SUMMARY OF INITIATIVE (From: http://www.wisr.net/artist/reform/petition.htm)
Seeks to restore integrity and public confidence in our judiciary by creating Statewide Special Grand Juries (three twenty-five member Special Grand Juries with statewide jurisdiction) having power to judge both law and fact charged with determining whether any particular judge, based on the evidence, should retain his/her shield from civil suit.
Applies a "Three Strikes And You're Out" to judges, and prevents disciplined judges from receiving full retirement benefits.
Also, upon a finding by the Special Grand Jury of the appearance of criminal activity by any judge, provides for criminal prosecution of judges by creating a special trial jury, who tries the defendant judge before a retired judge by a special non-government prosecutor.
Seeks to restore integrity and public confidence in our judiciary by creating Statewide Special Grand Juries charged with determining whether any particular judge, based on the evidence, should retain his/her shield from civil suit.
Applies a "Three Strikes And You're Out" policy to judges, and sanctions disciplined judges by preventing full retirement benefits.
Upon a finding by the Special Grand Jury of probable cause of criminal activity by any judge, provides for criminal prosecution of judges by creating a special trial jury which tries the defendant judge and issues the sentence, cases to be tried by a special nongovernment prosecutor.
FULLY INFORMED JURY ASSOCIATION (from: http://www.fija.org/juror-handbook.htm)
Jurors' Handbook: A Citizen's Guide to Jury Duty , June 9, 1999
The Fully Informed Jury Association argues in this statement that trial juries may nullify laws by finding defendants who are "factually guilty" innocent of the crime for which they are charged.
Did you know that you qualify for another, much more powerful vote than the one which you cast on election day? This opportunity comes when you are selected for jury duty, a position of honor for over 700 years.
The principle of a Common Law Jury or Trial by the Country was first established on June 15, 1215 at Runnymede, England when King John signed the Magna Carta, or Great Charter of our Liberties. It created the basis for our Constitutional, system of Justice.
JURY POWER in the system of checks and balances:
In a Constitutional system of justice, such as ours, there is a judicial body with more power than Congress, the President, or even the Supreme Court. Yes, the trial jury protected under our Constitution has more power than all these government officials. This is because it has the final veto power over all "acts of the legislature" that may come to be called "laws".
In fact, the power of jury nullification predates our Constitution. In November of 1734, a printer named John Peter Zenger was arrested for seditious libel against his Majesty's government. At that time, a law of the Colony of New York forbid any publication without prior government approval. Freedom of the press was not enjoyed by the early colonialists! Zenger, however, defied this censorship and published articles strongly critical of New York colonial rule.
When brought to trial in August of 1735, Zenger admitted publishing the offending articles, but argued that the truth of the facts stated justified their publication. The judge instructed the jury that truth is not justification for libel. Rather, truth makes the libel more vicious, for public unrest is more likely to follow true, rather than false claims of bad governance. And since the defendant had admitted to the "fact" of publication, only a question of "law" remained.
Then, as now, the judge said the "issue of law" was for the court to determine, and he instructed the jury to find the defendant guilty. It took only ten minutes for the jury to disregard the judge's instructions on the law and find Zenger NOT GUILTY.
That is the power of the jury at work; the power to decide the issues of law under which the defendant is charged, as well as the facts. In our system of checks and balances, the jury is our final check, the people's last safeguard against unjust law and tyranny.
Reducing Frivolous Law Suits - Loser Pays
KnowTheCandidates.org does not endorse all the details advanced in the following excerpt from another web site and prefers the reform advanced by this site as more practical (see Frivolous above). However, there are some similarities and also some food for thought advanced in the following.
Excerpt from site: http://www.perkel.com/pbl/loserpay.htm
"I've been giving some thought to litigation reform and the idea of "loser pays" as a way of discouraging frivolous lawsuits. The justice system of this country is a laughing stock of the world and it very much needs to be fixed. Most "normal" countries have "loser pays" rules so that if you sue someone, and you lose, you have to pay their legal expenses. This discourages frivolous lawsuits and makes it unprofitable for someone to sue you and get your money because it's cheaper to pay them off that to prove you're right. In America, even when you win you lose. The lawyers always win. And it's us citizens who are paying to support 2/3rds of the worlds lawyers. Many foreign companies won't do business in America because of our legal system. And I don't blame them. Our system is here to make lawyers rich and it needs to be changed to support the needs of the people.
I support loser pays if it is done right. Here's my thoughts on doing it
right. For loser pays to work, it should only apply to the plaintiff, the one who brings the suit. If it were to apply to the defendant then a well financed plaintiff would be able to take advantage of poor defendants and it would make things worse. There also needs to be a mechanism to make the judge be able to waive loser pays under certain guidelines. This would allow really close cases and special circumstances to be able to be handled in a just manner.
A loser pays plan should also include a provision for "lawyer pays". Lawyer pays should be used in situations where the judge decides that the case was brought without merit or in cases where the lawyers have violated the rules of professional conduct. If a lawyer behaves in a manner that isn't honest and ethical, the lawyer, not the client, should pay the legal expenses of the other party. This would help enforce legal ethics which are given mere lip service here in America.
In cases where a lawyer has committed fraud, or has participated with his client in the fabrication of false or fraudulent evidence, the lawyer should pay triple damages. Most people don't know this but lawyers are not allowed to lie in Court. If a lawyer lies to a judge the lawyer is committing "Fraud upon the Court" which in theory should get him disbarred. However, lawyers lying to the court is standard operating procedure in this country.
If these reforms are put into effect we can restore justice to the justice
system and allow law abiding citizens to not have to live in fear of the courts.
Our court systems have rules of ethics and rules of professional conduct. If
these rules which already exist were enforced we wouldn't have the world's worst
legal system. We citizens need to demand the highest standards of ethics and
insist that lawyers and judges meet these high standards. The judicial system
is suppose to serve the people, not to be a tool to make lawyers rich."
http://www.perkel.com/pbl/loserpay.htm This site does not agree with everything said in the above copied text.
A number of problems and solutions related to Judicial Reform were not covered in the this section and will be in the future.
If Judicial Reform is a subject of special interest to you please email us and put "judicial reform" (without the quote marks) on the subject line. We will inform you of future updates to this subject area. If you have information you think should be included or questions please include them in the body of the message.
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