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1) Small case trial reform - On small cases, misdemeanors and
civil cases involving an actual damage amount of $100,000 or less, a court appointed
"presenting lawyer" should be engaged. These lawyers would be paid by
the state and would gather all facts and evidence and present this
evidence to the judge and jury. The parties could still have their
lawyers but these lawyers would follow the court appointed lawyer's
questioning the witnesses. Only the "presenting lawyer" could make
opening and closing statements to the jury. People would soon realize
that they needn't hire an attorney because the court appointed lawyers
were getting fair results. The government fund which pays these
"presenting lawyers" might be maintained by putting a 2% surcharge on
every civil judgement regardless of size.
2) Legal Education Reform - Only lawyers who had worked as a
court appointed "presenting lawyer" would be allowed to take a new
fourth year in Law School to become a "large case litigating attorney".
This effectively means that no one could become qualified to handle a
large adversary case until they were in their late twenties and had
quite a bit of court room experience. The advantage here is that it
would allow law schools to remove Moot Court, adversary brief writing,
and other courses that teach students to dissemble from the basic
curriculum. Law schools could reserve this experience for the returning
fourth year men. Since most lawyers would never return for the fourth
year, far fewer people would be exposed to formal, class room based
training in dissimulation.
3) Separation of Powers - Since lawyers have a special loyalty to
the judicial branch by virtue of their education and membership in bar
associations, it is best that no member of the bar serve in an elected or policy making position in the executive or legislative branch. If a lawyer really wanted to
serve in the legislature or executive branch all he would have to do is
resign his bar association memberships and agree to retake and pass the
bar exam if he choose to reenter the practice of law later.
4) Tougher Treatment for Lying Lawyers and Lying Clients -
Dissimulation, a form of lying, is a chronic problem with lawyers.
Lawyers sometimes pass these skills on to witnesses as they prepare them
to testify. New rules need to be developed to help people root out any
hint of lying on the part of a lawyer or a witness. This means that the
tort of perjury must be reinstated so victims can go after liars.
Furthermore, there needs to be a law that says whenever a tort case for
perjury is filed the persecuting attorney must present the facts of
the case to the grand jury for possible indictment. In addition, all bar
associations and/or state supreme courts that maintain disciplinary
committees must initiate disbarment proceedings immediately if a civil
jury finds a local lawyer coached a client to commit perjury. Finally,
citizens must be given absolute immunity from liable and slander charges
if they bring information about a wayward attorney to the attention of
the disciplinary authorities.
5) Strict Liability for Lawyers who bring Frivolous Cases -
Currently, if a lawyer files a case for a client and the facts are such
that the client has no possibility of prevailing, the lawyer is
absolutely protected from any counter suit from the person who he sued.
The party who was improperly sued may sue the other party but not the
other party's lawyer. This is an important distinction because oftentime
the party bringing the groundless case is relatively poor and in fact
had been induced by his lawyer to bring the case in the first place.
This situation needs to be changed so that both the lawyer and his
client can be sued if the facts show that there was no good reason to
bring the lawsuit in the first place.
6) Jury Reform is Needed - Jury selection in this country allows
lawyers for both sides to have preemptory challenges which they use to
shape the jury to their liking. The processes usually leave the jury
panel stripped of its most experienced and well informed members. In
Britain, the jury selection process is conducted by the court before the
lawyers arrive. If this process were instituted in America, trials
would be faster, cheaper, and the juries would contain a better cross
section of the population. Another improvement that has been suggested
is reinstituting the ancient practice of Jury Questions. This
practice found in medieval England, had the jury together the advocates
(lawyers) asking questions of the witnesses. There could be a
final moment, just before a witness got down from the witness stand,
when any jury member could pose questions.
7) Supreme Court Reform - The Founding Fathers wrote Art. III,
Sect. 2 into Constitution obviously intending for Congress to provide
serious direction to the Courts. However, over the decades the
Congress has let its powers under this provision atrophy through disuse.
The Supreme Court, on the other hand, has not been shy about increasing
its authority. The Court's power grab began in 1803 when Marbury
v. Madison was decided. In this case the Supreme Court gave itself
the "all important" right to interpret the Constitution and thus the
power to declare the acts of the states or the other branches of Federal
government unconstitutional. The net effect has been to make the
courts the most powerful branch of our government. Some experts have
gone so far as to say that a Supreme Court session is the equivalent of
a Constitutional Convention. Whatever the court says the Constitution
means, it thenceforth means. This is an extraordinary power to be
vested in nine men whose quality of service is greatly influenced by the
aging process and whose length of service is dictated by fate. If the
court is to have this extraordinary power than the court's decisions
need to be subjected to a review process that gives this nation's
legislative bodies a chance to force the court to reconsider a given
decision. The existence of this process, which might be called
"temporary nullification" would force the Court to consider all its
decisions in the light of what the average person or legislator feels
is right. (For more on how this "nullification"
process might work.)
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Legal Ethics and Reform