No process should be subjected to major reform unless it can be shown to be either immoral or inefficient. Processes that are both moral and efficient are covered by the famous saying "if it's not broke, don't fix it." So is the American legal system a good candidate for reform?
The Moral Case for Legal Reform
St. Thomas Aquinas, in his Summa Theologica Part 1 of the Second Part questions 90 to 108, assures us that the social order created by man must comport with the natural law created by God. Therefore, judicial decisions, laws, regulations and governmental processes should not offend that internal mechanism created by God called the conscience. In America today the list of laws, judicial decisions, and regulations that fail to comport with the natural law is long. Morally sensitive writers repeatedly bring up legalized abortion, no fault divorce, affirmative action, banned prayer in school, uncompensated restriction on the free use of private property, etc. But these writers never mention the flawed governmental processes that have put morally numbed people, mostly lawyers, in positions where they can create and impose these flawed laws, decisions and regulations.
The moral numbing of America's lawyers begins during their period of training. Good, bright young people go to law school where they are required to accept as "true" principles which violate the natural law. When university professors insist that a student accept tainted principles as "true," scandal is given, the conscience is compromised, and moral numbing begins. Take an example:
In moot court classes, law students are taught it is right for a lawyer to shape the facts, make objections, and use dramatic touches effectively to create confusion in the midst of a trial where a person's life, freedom or fortune is at stake? These activities would be classified by moral theologians as dissimulation, that is an attempt to disguise the real nature of things without actually speaking a falsehood. Law students are taught that the full illumination of the truth is not their goal. Rather maximizing their client's chance of success is their goal. (See Catholic Catechism para #2468 discusses dissimulation and hypocrisy.)
After law school, these bright young people enter various careers where the damage they do to common sense, natural law principles escalates. Consider these practices:
(1) The frivolous lawsuit is designed to force a settlement which is somewhat less than the defendant's cost to carry the case through trial. Where possible frivolous lawsuits are aimed at two or three defendants such that each defendant has to have his own attorney. Defense attorneys love frivolous lawsuits because each defendant needs a lawyer to respond to the plaintiff's filings and negotiate settlements. The natural law, and common sense argue for a screening mechanism that protects the innocent from this harassment. Because lawyers of both the "plaintiff's bar" and the "defense bar" resist such a mechanism, the innocent continue to get hit with frivolous lawsuits. (The "defense bar" has proposed "loser pay" rules, but only 5 percent of cases actually go to trial which means that there are "official losers" in a very small percentage of cases; there is also the deterrent effect that such a rule would have on cases that have merit but might be lost at trial.)
(2) Some lawyers take cases they have no willingness to try. They do this without advising their clients of their feelings. These lawyers want the fee income that comes from doing the early discovery and some depositions. However, as one of these cases approaches its trial date, the lawyer will begin running up the bill with a view to forcing a settlement. A case that was initially estimated to cost $50,000 has suddenly consumed $125,000 and is getting more expensive daily. Such lawyers steal from their clients by doing unnecessary tasks and oftentimes they further injure their clients by forcing them into settlements which are unfair.
(3) Criminal procedure in America makes wonderful reading: defendant's have the right to remain silent, defendant's are entitled to a jury trial, defendants are entitled to have their cases tried in a court room open to the public, defendant's are entitled to an attorney even if they are indigent, defendant's are entited to have the case against them proved beyond a reasonable doubt, and defendant's are entitled to have their bail set at a reasonable level so they might have their freedom until their trial. This is taught in civics classes and through the mass media, however, the reality is that over 90% of criminal cases are plea bargined. No trial is ever held. Judges, prosecutors and public defenders realize that a proper American trial is very time consuming and costly. So they all work to get a plea bargin from the defendant so a trial can be avoided. In order to get the defendant to give up all his rights, they have to pressure the defendant. Here are some of the things they do: (a) The prosecutor claims that with this defendant there is a "risk of flight" and therefore his bail should be set very high; the judge is aware that the prosecutor will have a better chance of getting the defendant to "plead guilty" if the defendant is sitting in jail, so the judge goes along and sets a high bail. (b) The prosecutor usually has several statutes which the bad behavior of the defendant has violated; the prosecutor therefore has the right to charge the defendant with one crime or several crimes and further he has the right to ask for either concurrent or consecutive sentencing; these give the prosecutor tremendeous leverage over the defendant who can plead guilty to one crime with say a 3 year sentence or go to trial and risk being found guilty of four crimes with consecutive sentences totalling say 12 years. (c) In certain cases, where particularly reprehensible crimes like rape or child molestation may have occurred, the prosecutor will offer a simple guilty plea on an assault charge; the public defender will remind the defendant that those who go to prison for child molestation oftentimes are killed by their fellow prisoners. (d) certain defendants have a strong desire to keep the details of what they did secret from the press, the defendants work with the prosecutors to get a plea bargin on the provision the details of their misdeeds do not get to the press. (e) defendants, who insist on their right to a trial, fall into that small minority that makes work for judges, prosecutors, and public defenders and can expect a harsh sentence if they end up being convicted. From a moral persective all this is very problematic: Should schools teach young people one criminal justice model when a different model is really being used 90% of the time? Should prosecutors have the right to "change the charge" depending on whether or not the defendant is willing to give up his rights? Should plea bargining be used to deprive the press (and the public) of knowledge about particularly heinous acts or acts committed by famous people?
(4) Some plaintiff's lawyers, particularly those doing contingency fee debt collection work, sometimes have to deal with a client who wants to win a judgement for the full amount of the debt and won't settle for less. The defendant typically offers to settle for a fraction of the full amount say 50% and hints he will hide his assets to avoid paying more than the 50%. The contingency fee debt collection attorney is put in a difficult position. He has no lever to force his client to settle, and yet if he wins the full judgement, he might have a difficult time collecting the judgement. This lawyer, working with the other side, can arrange a "non trial" trial. Such trials involve perjury by the defendant, while certain key plaintiff witnesses, usually the persons who notarized or witnessed the notes, somehow fail to get subpoenaed and don't show up at trial. The drama is scripted so a judgement close to the 50% settlement offer is obtained as a judgement. A majority of those involved are happy. The defendant and his lawyer are happy. The plaintiff's lawyer doesn't have to do any collection work, so he's happy. The plaintiff is unhappy because he is forced to accept half of what's due less the continency fee due his lawyer. The moral problems with "non trial" trials are numerous: the plaintiff is not properly represented, the system of justice is subverted, the defendant is coached by his attorney to commit perjury, etc. If the plaintiff tries to bring a perjury action, he will find that perjury is not a civil wrong. Perjury is only a crime, and further he will find that prosecutors have no interest in bringing perjurers to justice, unless their perjury causes the prosecutor to lose a case.
(5) Divorce proceedings are conducted in an adversary proceeding that naturally heightens tensions when all of society's energies should be devoted to lowering tensions in hopes of keeping couples together. Divorce proceedings should be handled in non-adversary forums where trained marriage counselors work with the judges and the parties. Lawyers trained in adversary techniques should be generally excluded from these proceedings.
(6) St. Thomas advocated a simple unchanging set of laws (a) that treat all citizens the same, (b) that are in harmony with the natural law, (c) which men could learn once and (d) feel confident they were operating within the law for the foreseeable future. Do any lawyers accept this common sense directive as a guideline for their life's work? Lobbyists, many of whom are lawyers, ask legislators, many of whom are lawyers, and regulators, many of whom are lawyers, to write laws and regulations that give their clients special advantage. This process generates a flood of new laws and regulations, mostly written in legalese with special interests in mind. These in turn generate requests from private citizens and small businesses to private lawyers for advice on what the new laws and regulations seem to mean. Then comes the lawsuits designed to find out what the courts say the revised law really means. In America the changes in the law and regulations come constantly. The result is exactly the opposite of the preferred result. People can't become comfortable with the law. They can't organize their lives with assurance that things won't be up scuttled tomorrow. (This problem is discussed at greater length later.)
(7) Lawyers use preemptive challenges to disqualify the brightest and best educated prospective jurors. Natural law principles would say that such jurors would strengthen any jury and should be kept on the jury. However, lawyers rightfully sense that such jurors are less easily manipulated by spinning and orchestrated confusion. Gordon Tullock in The Case Against the Common Law noted that nine hundred years ago when the common law system was evolving in England people where required to plead their own cases and could not hire others to plead for them. In like fashion, early juries where composed of people acquainted with the parties involved in the dispute and some jurors even had first hand knowledge of the facts of the case. The people in twelfth century England were following common sense ideas of how to get a fair trial.
There are many lawyers who never engage in any of these immoral practices. However, all lawyers are implicated by silent acquiesce. Lawyers are members of the state bar association and are supervised by the State Supreme Court. These entities, if properly prodding by lawyers, would probably initiate efforts to purge these immoral practices. Lawyers generally risk disbarment if they publicly criticize the bench or bar, so prodding of this kind is not likely to be reported in the press. In the meantime morally sensitive people can only wince when a lawyer prosecutor, or a lawyer legislator, or a lawyer regulator assumes a "holier than thou" attitude toward some troubled person or situation. Didn't Christ say "Look to the plank in your own eye before attempting to remove the splinter from your neighbor's eye."
The Inefficiency Case for Legal Reform
It may not be immoral to keep an inefficient process, but it's certainly an offense against common sense. Any process has to be analyzed from three different perspectives: dollar cost to get a result, time cost to get that result, and quality of the result obtained.
Obviously the three are interrelated. High cost, time-consuming processes are generally believed to generate more desirable results, but not always. It is also true that the highest quality process is not suitable for many, perhaps most, of those who need the process. The best barber in town might give wonderful haircuts by charging $50 and taking two hours on each customer, but most men would opt for a cheaper, faster process that gave a good, if not a great, haircut.
It is also true that some processes impose costs (or benefits) on unrelated or undeserving parties, and these factors must be considered. For example, a dry-cleaning establishment might decide to dump its used dry-cleaning fluids in a local creek rather than pay to get it hauled away and processed properly. The cheaper disposal method allows the dry clearer to cut its prices so customers get cheaper dry cleaning. Competing dry cleaners are unable to compete and are forced out of business. The fish in the creek die. This situation creates quite a mix of winners and losers.
Legal processes and processes dominated by lawyers are very interesting when subjected to economic or efficiency analysis. Let's look at a couple situations: (1) a typical civil dispute, and (2) the passage of a new law which requires the issuance of new regulations and which imposes new costs on many businesses.
Situation #1 -
The Hudsons contract for $27,000 of concrete work to be done around their house. They sign a contract saying the work will be completed to "a high standard of workmanship". They also discussed the job and the details were ironed out orally and with the help of several diagrams. The contractor does the work but because of rain delays the job isn't finished very quickly and has to be done in stages. In addition, the concrete while structurally sound and properly placed doesn't have exactly the same color or surface texture everywhere. The Hudsons want it redone the contractor says the job is acceptable. The Hudsons decide to sue. The parties hire attorneys and the process begins.
Each attorney charges $175 per hour. These tasks must be performed: The Hudsons' lawyer prepares the initial filing. The contractor's lawyer prepares a reply. The two attorneys prepare requests for documents directed to each other. This is followed by interrogatories by each attorney which in turned must be replied to. At this point the process has been underway for five or six months.
The court in an attempt to promote settlements requires the parties and their attorneys to attend a pre trial settlement conference. The judge remarks that parties have probably spent a total of more than $15,000 in legal bills and the whole project was only worth $27,000 to start with. The lawyers agree but point out that the parties feel they want "their day in court". The judge points out that only 5% of the American people have enough extra money laying around to "have their day in count", everyone else has to settle for whatever they can get. He urges the parties to settle as soon as possible. After some discussion the parties still want their "day in court". The settlement attempt having failed, the case is set for trial one year after the Hudsons filed their case.
The parties now go to depositions. The Hudsons and two employees of the contractors who negotiated the job and two experts needed to give meaning to the words "high standard of workmanship" are deposed. The lawyers want to know exactly what was said at the time the job was agreed to. Transcripts are prepared. After these are studied, the lawyers prepare legal briefs to advise the court on the statute law and case law governing this case. Finally, the two sides are ready to go to trial. The lawyers feel it will take four hours to select a jury and six hours to try the case. The sum of the legal bills is more than the value of the concrete work; see the table below:
Analysis of Situation #1 -
Obviously the Hudsons and the contractor have an honest difference of opinion about the issues. Both have an obvious desire to have their case heard and decided by an objective third party, in this case a jury. Just as obviously the procedural costs incurred by the parties are badly disproportionate to any jury verdict which might reasonablely be rendered. These facts raise the question: Is it possible to provide a more cost efficient and time efficient method for citizens to get access to a independent third party decision maker?
Any reformation of our court processes is really at root an information system design problem. Information System Analysis is a two-step procedure: First the existing processes are broken down into their component parts, the roles of participants are studied, ends or goals are investigated and similar processes in other places are reviewed to get ideas on how other organizations (or societies) accomplish similar results. Finally the information systems analyst would take into consideration the peculiar needs and eccentricities of the organization (or society) he is serving. The second step is the synthesis of all information gathered in the first step. In other words, it's a reassembling of the necessary elements into a more efficient, more useful system. Of course some elements may be found to be unnecessary. These would be discarded.
Looking at civil cases generally, an information systems analyst would study the following elements: (1) the information must get from witnesses and physical things like documents to the decision makers, (2) some organizing of both the facts and the relevant law must also be provided by a person(s) knowledgeable in the law and legal processes so the decision makers can quickly and intelligently sort things out, (3) experts are needed sometimes to give meaning to phrases like "high standard of workmanship", (4) the decision maker(s) should be qualified to deal with questions of law and fact, (5) familiarization with modern technologies is important as some new device might be useful, etc.
The information systems analyst would look to other similar systems to see "how they do it" The obvious place to look would be Western Europe. Here a system analyst would notice (1) that the judge served both as judge (supervisor of the process) and as a member of the group that makes the final decision. (2) that the facts and relevant law are organized by one court-appointed lawyer (not by two private lawyers going back and forth), (3) that many cases never require a formal trial because the dossier prepared by the court appointed lawyer are deemed complete by the parties and judge, (4) that most cases went from initial filing to final decision in a matter of weeks rather than months or years. (5) that the court appointed lawyer got his own expert opinions as needed, (6) in order to reduce the need for appeals the trial court is given wider latitude to decide both matters of fact and law, (7) the laws are written in general, straightforward language, (8) in criminal cases plea bargaining is not allowed and trials are required, (9) in England judges, not the lawyers, select the jurors from the prospective jury pool.
The system analyst might read books like David Luban's Lawyers and Justice - An Ethical Study which argues that wholesale adoption of Continental European System in the US is impossible because it down plays the importance of stare decisis and would interfere with the American appellate processes that largely determine American civil procedure. He also argues that Americans are attached to the idea of having a "jury of their peers" and "their own lawyer at their side". He also feels that Americans are attracted to the high drama of the America trial and would feel cheated by the quiet deliberative approach used in Continental Europe.
Now the information systems analyst would have to put it all together keeping some elements, dropping other elements, and changing some elements to get to a faster, cheaper, more accurate legal process. The resulting synthesis might include: (1) A jury selected by the trial court judge without the involvement of the lawyers. (2) The judge might join the jury as a non-voting member during its deliberations. (3) With the judge advising them, juries might be given the specific right to exercise jury nullification of the law. Juries do this in a rough way today. Juries sense that they should have this right. History agrees; nullification was their right under both in the Magna Charta in England (1215) and in this country under Georgia v. Brailsford (US Supreme Court 1794). (4) A suggestion that plea bargaining in criminal cases be curtailed; this would force prosecutors to charge wrongdoers with the crime the facts clearly support. Today American prosecutors like to charge a wrongdoer with crimes that the facts could never support in the hopes of gaining a plea bargain for a lesser charge and thus avoiding the hassle of a trial. (5) A court-appointed attorney might join the existing plaintiff's attorney and defendant's attorney; and the presentation of the case might include three parts: the plaintiff's case, then the defendant's case and the appointed lawyer's case. (In time, of course, litigants may realize that there was little need to incur the cost of their own lawyer and would simply depend upon the court's lawyer to organize and present the facts.)
Situation #2 -
The recent Enron and WorldCom scandals combined with the scandals involving Wall Street stock research analysts have caused Congress to pass laws, like Sarbanes Oxley, which effect all publicly traded companies and all brokerage companies. However, Congress has left preparation of implementing language to the Securities and Exchange Commission (SEC). State governments have gotten into the act with lawsuits and legislation. Various listing entities and self regulatory organizations (NYSE, NASD, AICPA, NASDAQ, etc.) are staffing up to handle the extra audit work that all there governmental restrictions will require. The actual regulated entities, publicly traded corporations and brokerage firms, are coping as best they can: (1) many small publicly traded companies (sales of less than $100 million) are looking at ways to "go private" or merge with larger companies to avoid the high cost of compliance with rules requiring the rotation of auditors, the auditing compliance with corporate procedures as well as financial statements, and the retention of highly paid, highly qualified, outside directors. Many small publicly traded companies are controlled by founding families that resist wasting money on non-productive activities. (2) smaller brokerages are giving up their "in house" market letters and research reports because the new rules separating functions are difficult to set up in small organizations. Small brokerages and small publicly traded corporations are spending more time and money discussing their options with their legal advisors. It is interesting that solutions to problems created by large entities, such as Enron, Merrill Lynch, Morgan Stanley, and WorldCom, are having their most profound effects on much smaller entities.
The preceding paragraph does not contain the word lawyer, but anyone with the slightest knowledge of American government and business realizes that lawyers have their fingers in every aspect of what's described above. Lawyers occupy most of the seats in Congress, lawyers are the Congressional staff members who draft the wording of the legislation, lawyers testify to the Congressional committees that are drafting the legislation, lawyers lobby the Congress to include or exclude certain features, and SEC lawyers write implementing regulations, and lawyers are the legal advisors to corporate managers trying to respond to all this.
While the new laws have imposed new record keeping and other costs on publicly traded companies and brokerages, the actions which would have truly rained in these bad actors were assiduously avoided. Was Merrill Lynch forced to spin off investment banking into a separate company under separate ownership and control? Were special purpose entities, which ENRON fraudulently used to hide debt and increase reported revenues, outlawed? Was the unregulated energy grid, which ENRON manipulated to make excess profits, re-regulated? Was WorldCom (now MCI) forced out of business for fraudulently claiming billions in phantom revenues, raising $40 billion on new capital with phony financial statements, and cheating local phone companies out of access fees? Were special purpose entities outlawed? Was the Glass Stigel wall between commercial and investment banking, which had worked for 70 years and which was dropped a few years ago, re-erected? Jack Grubman and Sandy Weil would never have been in the same organization if Glass Stigel had remained in place. The answer to all these questions is NO. Maybe none of these were good ideas, but they weren't even debated.
Mark C Miller in The High Priests of American Politics has pointed out several interesting aspects of lawyers in the legislative process: (1) Lawyers want to be in charge and they use their verbal skills to capture key committee appointments and other leadership posts. (2)Lawyers prefer to deal with other lawyers, so most of the important staff positions are held by lawyers. (3)Lawyers who serve in staff positions in legislative bodies tend to give abbreviated briefings to non-lawyer members and full briefings to lawyer members. (4) Lawyer legislators are attentive to lawyer lobbyists who can brief not only on the substance of the bill but the likely reaction of the courts to the bill. (5) Lawyers like to legislate in incremental, "baby steps" to see how the courts will react to the new statute. (6) Lawyers are very concerned about everyone's rights and they don't want to limit or expand rights very much at any one time. (7) Lawyers don't mind revisiting a given area of the statute law again and again, perhaps as often as once every two or three years. (8) Lawyers don't like specificity in legislation, instead they like to give authority to the lawyers in executive agencies to issue implementing regulations. (9) Lawyers are confident that they are best able to lead the legislative process.
With lawyers setting America's legislative agenda, the following realities obtain: (1) laws, whether trumpeted as major or minor steps forward, are almost always modest changes of existing law, (2) the shape of the law after any revision will soon be a mishmash of statute, regulation, and court decision which will likely require additional change in a few years, (3) the actual writings that set out the law and regulation will be difficult to comprehend, average citizens will need to call their lawyers to get a precise understanding, and (4) no citizen or small businessman can ever say with assurance "I am fully knowledgeable of the current state of the law governing my activities, and am confident these laws won't change soon."
Analysis of Situation #2
The efficiency analysis of this process reveals massive confusion and waste. Incremental laws design to curb the abuses of wrongdoers sometimes have unintended consequences. The people affected by a changed law have to spend money and time with their lawyers figuring out the meaning of the new laws, regulations, and judicial decisions. While the government and courts have to spend a lot on money every couple of years on legislative hearings, on passing laws, on rewriting regulations, on hearing cases contesting various portions of the revised law, and on issuing court opinions interpreting those laws. It must be remembered that cases don't get to an appeals court unless private parties have contested at great cost some aspect of the law or regulation in a trial court. If laws must be changed because some reform is truly needed, then it is incumbent on legislators to go slowly and enact a reform that can last for at least a decade.
So what reforms would likely lead to greater clarity and longevity for new laws: (1) Legislative language should be as simple as possible and should repeal antiquated laws even as new laws are passed. (2) Legislatures, including Congress, should resist the urge to give to executive agencies the power to issue "implementing legislation". Lawmakers should strive to produce a product that can stand on its own. (3) America should adopt Teddy Roosevelt's suggestion that any judicial opinion overturning or modifying a law could not go into effect until the legislature (or Congress) had by "up or down" vote approved that judicial decision. (4) All regulations, statues, and judicial opinions should be reviewed and rated for clarity by non-lawyer English scholars before they were issued. These ratings should be published. Since clear thought is a precursor to clear writing, this reform would make the law not only more readable but more logical as well. (5) Restrict lawyers to government service in the judicial branch of government, this would strip lawyers out of Congress and the executive agencies. Laws and regulations would then be written by non lawyers. These five suggestions should make for fewer, clearer, and longer lasting changes in the law.
With regard to clarity in court opinions, Anthony Kronman in his book The Lost Lawyer: Failing Ideals of the Legal Profession has pointed out that the many sloppy, inconsistent decisions issued by America's appellate judges have broken the courts' commitment to precedence and stare decisis. This trend has made it difficult for lawyers to explain the law to their clients. Kronman argues that the typical lawyer has lost a great anchor in his psyche as the consistency and integration of the law has eroded. He worries that a nation ruled by law is becoming a nation ruled by men.
Some Final Thoughts
The activities of some lawyers, whether in courtrooms or in the hearing rooms of Congress, makes work for other lawyers. It's a "whirligig" that syphons great chucks of wealth from corporation reserve accounts and the middle class savings accounts into the hands of lawyers. Obviously reform has been needed for years so what factors keep legal reform from breaking onto America's reform agenda? Consider:
1) The American people express their dissatisfaction with lawyers and legal processes by their repeated telling of vicious lawyer jokes and by their recounting of their personal horror stories from various legal proceedings. However, no movement for overall reform emerges. Perhaps Americans unconsciously believe that a functioning society requires some kind of aristocracy and that lawyers have for good or ill assumed that role in American society. They might not be able to articulate these feelings. They sense that while lawyer jokes might be acceptable, actually tampering with this stratum of society is a dangerous thing to attempt.
2) Reform movements need visible leadership. Doctors, college teachers, business managers, and newsmen are the obvious group to take on this leadership role. However, these non-lawyer leaders are closely linked scocially to lawyers. They live together, attend the same functions, send their children to the same schools and in many cases are related to each other. In addition, a significant percentage of newsmen and businessmen are law graduates themselves. All of this makes it unlikely that a non-lawyer leadership group will emerge to champion a major overhaul of America's legal processes.
3) The most formidable obstacle to systemic legal reform is the overwhelming presences of lawyers in all three branches of government. Of course the judicial branch is 100% lawyers except at the municipal judge level. In the other two branches lawyers may not actually hold all or even a majority of the elected or appointed offices, but the key advisors surrounding these elected officials are largely lawyers. Lawyers also serve in leadership positions in the lobbying organizations that provide the money to elected officials for future campaigns. No elected official in any legislative or executive office would take up this cause unless that official had decided not to run for re-election.
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