Legal Ethics and Reform

Open Letter to Supreme Court Justices on Civil Procedure and the Rise in Immorality

Dear Justice ________________

I write to request that you begin taking a case or two each year that deals with civil procedure, and to request that you more closely align your decision with traditional Judeo-Christian values.

REGARDING CIVIL PROCEDURE

America has rightfully redressed, to some degree, the power imbalance between the plaintiff and defendant in criminal cases, but this imbalance between the more wealthy party and the less wealthy party in a civil court case remains unaddressed.

A couple of facts are worth considering:

1) a lawyer, named Fox, who advises the trial judges in St Louis County Missouri, mentioned once that the considered opinion around his court is that only 5% of the citizens of the county can afford to carry a case through a full trial. This of course means that, barring an interested contingency fee attorney, 95% of residence in St louis County are forced to settle for essentially whatever the other side offers.

2) Jim Cramer from CNBC, when asked what the civil legal system costs, said “about 2% of GDP”. (This answer does not consider the lost economic activity that stems from the uncertainties that effect other aspects of the parties’ economic life.)

If the medical system costs the economy 17% of GDP and delivers decent health care to 80% of the people, and if the legal system delivers decent civil justice to 5% of the people for 2% of GDP. You can see the legal system is in as much need of adjustment as the medical system.

Thus the rational for my request.

The need for change is obvious, but what changes to make that’s is not so obvious.

One possibility, is the example of continental Europe, when litigants arrive at the courthouse, the state appoints a lawyer (a young fellow training to be a judge) to investigate both parties’ allegations, documents, witnesses, etc and write a report summarizing the situation and applicable law. This report, after review and refinement by an older supervising judge is forwarded to a three judge panel for their further investigation, consideration, and decision. Now well heeled litigants are allowed to supplement this report, but normal folks with $25,000 or $50,000 at issue usually accept the report of the “junior lawyer in training” and the decision of the three judge panel. Of course, if say Mobil is suing BP, the lawyers on both sides would prepare massive supporting and opposing briefs to augment the record.

I understand that the costs of the “junior lawyers in training” is covered by a fee of 3% to 5% exacted from every civil judgement levied. In this system, the Mobil v. BP case is likely to pay enough to support the system for hundreds of small litigants. An advantage of having the judicial system share in the eventual judgement, makes it more likely that the state will not allow hiding of assets or income as happens in the US today.

Obviously this European system yields quicker, cheaper, and probably better results than our poorly disguised “forced settlement” system. Of course, the European system uses a system built on laws which are very general codes. I can’t figure out how to square this European system with our appeals procedure that require attention to so much detail of the statutes and the common law. This attention is present during trials, to set the stage for any possible appeal later. Perhaps in America, the small claims format might be expanded to much higher limits (eg. the annual salary of the president of the US) with a government lawyer appointed to serve both sides equally, and the parties allowed to hire their own lawyer if they wish.

The current system benefits many lawyers as they are engaged looking into the dispute and then informing the "poorer" party that he just has to settle. Of course, the lawyers get paid by the hour to study the facts and discuss the settlement. Ideally changes civil procedure should occur in the legislatures of America, but the influence of lawyers, as members and lobbyists, is so great in legislatures that changes such as this would have to originate in someplace like the Supreme Court.

So here is your challenge, how can America get to a cheaper, quicker, better trial system to serve the under served 95% and still keep your court’s role intact as the ultimate arbiter of what will or won’t fly in America. . After all, if the elected branches had to sort out for themselves “well reasoned, Constitutionally permissible “ laws and regulatory programs, we would have to return to the founder’s system were only the educated, knowledgeable substantive, morally sensitive members of the community could run for office.

AMERICA’S JUDEO-CHRISTIAN ROOTS

Which brings me to another thing you need to be careful about. America is built on the Judeo-Christian ethos, and people need a common shared underpinning or moral foundation. Lately your court has been creating gaps between Judeo-Christian understandings and what is currently acceptable law in America.

People need fixed and steady guideposts particularly in the realm of morality. The recent book The (Honest) Truth about Dishonesty supports this point strongly. Ultimately the human psyche has to be recognized and accommodated by all systems, including the legal system. It might seem to you that longstanding understandings can be discarded, but each time you do it a dichotomy or difference is created that splits families and communities. The presence of one small dichotomy can, with difficulty, be accepted and adjustments made; two is more than twice as hard to accept, three begins to create stiff resistence and pickets appear in front of your court, four triggers calls for impeachment , five rump political parties (like the Tea Party) appear, six ..... etc.

I don’t need to recount the list of your departures. I suppose Roe v. Wade is the most troublesome. Some of these decisions need to be reversed, but exactly how to do this in light of “stare decisis” is a challenge.

In closing, I wish you all the best, you have a very difficult tight rope to walk. It is only going to get worse as the country splinters over moral issues, as normal people feel left out of the system, and as that which was formally a settled matter becomes the latest cause celebre.

Very ttruly yours,

PS I enclose two essays, of my own composition, that bare on these questions.......An essay on civil procedure and An eassy on increased immorality.

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