Discussion in 'Debate and Discussion' started by Meserach, Feb 21, 2013.
Juries are there to decide matters of fact, not matters of law. Resolving and clarifying questions of law is a judge's job.
First. Law interns who think they know anything are bad law interns.
Second, the 'knowing' of law that those interns 'know' could be done by a robor, or a suitably robust flowchart.
I'm not sure how you philosophically mix those, but I do recall learning in law school that techn ically at least England left "common law" after a decision to no longer be bound by stare decisis - I think this was in the early 90s and didn't make much effective difference.
Fun fact is that most attorneys never step foot in a courtroom representing someone. I've practiced law for 7 years (mix of bigfirm and in-house), and I haven't been to court for work. I joke (only half-heartedly) that if I go to court, it's because something went horribly wrong in my personal life...
And in my opinion, the best attorneys aren't those who like to argue a lot. The best attorneys are the ones who can find common ground between your client and the opposing party, and come up with solutions (but again, I'm a transactional attorney, so that's what I do). Because in the end, if your client does end up taking an opposing party to court, everyone has lost something at that point (except the litigators, of course). You're really never "made whole" by the judicial process anyways.
In litigation, it's a whole different ballgame. While I would personally like to see a lot more collegiality between adversaries, there are times that the differing interests of the parties make it more or less impossible. For instance, in some situations, one side may know it has only a small chance to prevail in the case, but for whatever reason needs to delay the nigh-inevitable defeat as long as possible. Or they may just want to drag things out to bleed the other side's resources and thus force a better settlement. Just about the only thing the parties have in common is that, in the majority of cases, nobody wants to go to trial. I've been to court many times on a variety of motions, but trials are a rare and special beast.
Or their own client.
(I'm looking at you, some divorce attorneys).
Robert Heinlein is not one of my favorite authors and Stranger in a Strange Land is not one of my favorite books, but in there he created a profession known as a Fair Witness. This person had a photographic memory and basically acted as a professional uninterested observer of whatever was happening, and so for example could serve as unimpeachable evidence of an oral contract later in court.
In the real world is there any room for something similar, a kind of a professional juror role? I'm thinking a profession of persons who would be hired and trained by, I don't know some certification group or government group, to decide impartially on matters presented in courtrooms? Maybe it could be done similar to volunteer firefighting where training and certification is made and maintained, but only called up when needed?
I'm high on meds right now so please wail away if this is monumentally stupid heheh.
It's been tried in certain capacities, but the large vested interests that partake in the system end up getting favorable treatment because they have too much power and influence. See also, arbitrators.
They are called judges.
Sounds a lot like a judge to me, without the presiding part of the job. I don't know how you'd get around the concerns about judges that lead to the use of judges in the first place.
I'm a fan of the idea of investigative judges as used by countries such as (I believe) the Netherlands. It's probably not a perfect system either, but it seems better to me than just having an impartial judge as oversight and then relying on lawyers to present all the information in the case.
Yes arbitrators is more along the lines I was thinking thanks
AaronSofaer . So for instance if my NyQuil+Motrin addled arbitrator idea were some valued skill that could be taught, tested for, and certified (like volunteer firefighting or court stenography) then a jury would still be made up of one's peers-trained-in-thinking-about-facts rather than a panel of 12 judges each with their own law background, but might also provide some safeguards against the concerns raised in this article and elsewhere. Jury selection itself would change but as that process isn't grounded in the ineffable ink of Thomas Jefferson it should be an easier obstacle to overcome.
(naturally I'm talking about in the US although the article speaks about the UK)
Which of the following do you suppose is more likely to elicit the truth:
a) A single, overworked judge with no interest in the case asking a witness the questions they think needs asking; or
b) A lawyer or team of lawyers, sometimes extremely well prepared and sometimes not, trying to win their case by asking questions of a witness, who is being defended by another lawyer or team of lawyers, sometimes extremely well prepared and sometimes not, also trying to win their case; and then the latter lawyer or team of lawyers asking its own questions of the witness, and so on, with an impartial judge making sure everybody plays by the rules.
Personally, I feel that the adversary system is more likely to elicit the truth and thus lead to the just result. It has problems, particularly in cases with a large resource disparity between the parties (such that one side's team of lawyers are better prepared or just plain better), but it takes opposing sides that each seek vigorously to present their case to ensure that the most relevant information comes to light.
shift6, the problem with creating a professional class of jurors is that any such class would likely be both relatively small and quickly known to the biggest interests. That presumably makes it much easier to suborn jurors for those with the most resources, which is more difficult when you get a jury of whoever couldn't come up with an excuse that morning.
We do sort of have that here in the US for some disputes with exec agencies, called the Administrative law judge. And the non-govt parties generally end prefer not to have to go thru them...they're not always impartial.
Your example mentions oral contracts. The thing to fix that is written contracts, even just writing things down. Write shit down and have both people sign it.
US courts can, and do, appoint "special masters", to be objective experts on technical matters (the also often makes sure that orders are followed). Basically expert witnesses for the judge, rather than one of the parties. We also have arbitration, which might be the closest thing to what you describe that would be viable here.
I take your point, but not the way you phrased your comparison of the two systems.
Lay judges operate more or less like that.
That's what our system does. Any trial where the accused denies guilt and where the punishment can result in prison or the loss of a right (like the right to drive a vehicle or work in a certain profession) we have one judge and two lay judges (Domsmænd). If the case goes to appeal the higher court (Landsret) uses three judges and three lay judges.
Anybody can be a lay judge (just like US jurors) and your employer must give you time off (the court compensates your loss of wages to an extent), but most (all?) lay judges are taken from rosters provided by the political parties (I assume it was originally to ensure engaged people in good standing... but of course this tilts the selection heavily towards older people). You serve as a lay judge for 4 years and lots are drawn from the lists.
If punishment is more than 4 years of prison it goes to jury trial - 3 judges and 6 jurors (3 and 9 at appeals), but jurors don't deliberate alone - 2 judges and 4 jurors have to agree on guilt.
So here is your rendering of my comparison:
a) A single expert judge fully invested in the case through greater knowledge of all the evidence asking a witness the questions they think needs asking; or
b) A lawyer or team of lawyers, sometimes doing it for the hourly rate their client can barely afford to pay, trying to win their case by character assassinating a witness, who is being defended by another lawyer or team of lawyers, also watching their hourly rates; and then the latter lawyer or team of lawyers giving easy questions they've discussed earlier with the witness, and so on, with a single bored judge who is trying to avoid getting their findings overturned and / or creating any grounds for appeal.
Now we will go through the many ways in which it is wrong.
"A single expert judge fully invested in the case through greater knowledge of all the evidence."
Greater knowledge of the evidence than who? How do they acquire this amazing amount of knowledge? Do your hypothetical judges spend seven hours deposing each witness during discovery? Do they review the millions of potentially relevant documents produced by the parties? Do they pore over the opposition's expert reports looking for flaws, as well as over everything the expert witness has ever published to determine if that expert's testimony is inconsistent with views they've expressed elsewhere? The amount of time required to fully explore the evidence in a complex case far exceeds the amount of time any reasonable judiciary could dedicate to it.
"A lawyer or team of lawyers, sometimes doing it for the hourly rate their client can barely afford to pay . . . defended by another lawyer or team of lawyers, also watching their hourly rates"
First, whether or not the client can barely afford to pay the hourly rate is irrelevant. Lack of access to resources is a real problem, of course, but not one that particularly supports the fanciful notion of uberjudges. In any event, as long as the lawyers are getting paid (and even if they're not), they are bound to do their best to serve their clients' interests. I realize it is popular to joke about how unscrupulous lawyers are, but the lawyers I know take their ethical obligations extremely seriously. [Insert obligatory joke about slimy plaintiff's attorneys here.]
". . . trying to win their case by character assassinating a witness."
This is not 'Nam; there are rules. "Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait." Fed. R. Evid. 404(a)(1). Additionally, "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403. You can't just put a witness on the stand and insult their parentage. Moreover, it seems to me that this point in particular, and your reasons generally, overstate the importance of witness testimony in cases. There are a substantial number of cases that turn very little, if at all, on witness testimony. Admittedly, this is in part based on my experience, which is mostly with cases primarily involving interpretation of contracts, securities laws, and the like.
". . . and then the latter lawyer or team of lawyers giving easy questions they've discussed earlier with the witness."
Unless your adversary has completely bungled its direct examination, you're not going to be able to rest on a handful of pre-screened softball questions.
". . . with a single bored judge who is trying to avoid getting their findings overturned and / or creating any grounds for appeal."
Lots wrong here; we'll start at the back: is not a judge who is "trying to avoid . . . creating any grounds for appeal" a judge who is trying to get the decision right? Do you have a problem with judges writing opinions that are thorough and well-reasoned, which are the types of decisions that leave the least room for appeal? I thought not. The same goes for judges "trying to avoid getting their findings overturned," since an opinion typically won't be overturned if it's, you know, correct. With respect to judges being bored, I can only say that, in my experience, I've not come across a judge who seemed bored during any serious matter; the only times I've seen judges appear bored involve endless, petty bullshit sniping between parties about things that don't matter.
What's most wrong with this last statement, though, is that it reflects a surprisingly low opinion of judges for somebody who is advocating that judges be given more to do in the process. To the extent you're thinking that judges are bored with their current roles but would become more engaged and better if given more to do in their cases, I must ask: have you ever reviewed, redacted, and produced two hundred boxes of documents in a week? I have, and I doubt anybody would find their job more engaging if forced to do such things.
My point was your original statement was prejudicial. I'll highlight he key words for you.
You wrote 19 words about situation a) and 78 words about situation b), placing much greater emphasis and nuance on that second scenario that you obviously support. I rewrote the statement so that situation a) was more favourable and situation b) less favourable, although if I really had the interest I should have added a lot more words to situation a).
As I said, I accept your take on the situation, but not the way you had phrased it. An inquisitorial system doesn't have to depend on "single, overworked judge" who "aren't interested in the case" any more than the adversarial system depends on lawyers who only care about their hourly rates and judges who are only looking to make it through the day and go home.
Fair point. To explain:
- My reference to "single, overworked judges" is based on the current state of the US judicial system, where typically one judge is involved in a case (although sometimes with assistance from a magistrate judge, special masters, etc.) and courts are buried under overloaded dockets.
- I meant "no interest in the case" in both senses--that they assuredly have no skin in the game (or, at least, they had better not), but also that they likely don't find most of the cases particularly interesting, because most cases just aren't interesting. I don't even find my cases interesting; I can't imagine the court will.
- The judge is asking the "questions they think need asking" because the judge will likely have little if any guidance if they are running the whole show.
- I referred to teams of lawyers that are sometimes extremely well prepared to highlight the potential upside of the scenario.
- The "impartial" judge ensuring that everybody "plays by the rules" is basically aspirational and does not necessarily reflect my experience.
Hmm, we seem to have resolved this without setting this thread aflame. I believe that's a violation of these forum rules and now I have to insult your mother or something.
Sure, but guess what else is aspirational and doesn't reflect the vast majority of experiences with the legal system?
You're applying a double standard by comparing the upsides of one system to the downsides of the other. If you want to compare the two systems in any sort of sound manner, what you should do is determine what the distribution of outcomes is in the system. This requires doing a lot of research, but even on a theoretical level you're failing to compare upsides to upsides and downsides to downsides.
I would note that you conspicuously omitted my "and sometimes not." In any event, I don't compare upsides because, as far as I am aware (and, to be candid, this is not something I have researched), there is really no significant upside to a system that turns the judge into the investigator. Moreover, in a country with as much litigation as the United States, it's just not plausible.
So because you don't like the system, you compare the best possible case of the adverserial system with the worst case of the inquisitorial system, and you think that's a reasonable way of looking at it?
Make the best case for the other system.
I'm asserting that you're arguing in bad faith. The solution to this, from my perspective, is not to pay heed to your demands that I engage you on the subject, but rather to wait patiently (because I don't generally expect people actually will) for you to reframe your arguments in good faith instead, at which point I'd be happy to engage with you.
You are literally comparing the best possible scenario for the adversarial system with a failure-state example of the inquisitorial system. This isn't something that gives me any confidence that, were I to put actual effort into a reply to you, you would engage with that reply in an honest manner.
edit - also, I dunno what kind of lawyers you hang out with, but public defenders in Baltimore are, to a man, so overworked that the quality of their work approaches abysmal regardless of their personal competence, and they have essentially no access to investigative resources.
1) You are overstating the manner in which I described the adversary system. To bring back the text, I described it as: "b) A lawyer or team of lawyers, sometimes extremely well prepared and sometimes not, trying to win their case by asking questions of a witness, who is being defended by another lawyer or team of lawyers, sometimes extremely well prepared and sometimes not, also trying to win their case; and then the latter lawyer or team of lawyers asking its own questions of the witness, and so on, with an impartial judge making sure everybody plays by the rules." The only aspect of this that is fairly deemed aspirational or otherwise depicting the best possible scenario is "an impartial judge making sure everybody plays by the rules." It is otherwise a bare-bones description of how the adversary system works during trial.
I would also contend that my characterization of the inquisitorial system (as "a) A single, overworked judge with no interest in the case asking a witness the questions they think needs asking") is grounded in reality, as it is based on my experience with existing judges, who I do not believe will become magically more interested in cases just because they are given more to do, and it is axiomatic that giving them more to do is not going to make them less overworked. Thus, I disagree that I'm "literally comparing the best possible scenario for the adversarial system with a failure-state example of the inquisitorial system."
2) It is not incumbent on me to conduct lengthy research into a proposed system that I believe isn't even good in theory. A subset of the reasons I think it's a poor idea even in theory were given in an earlier post, which I'll reproduce (in part) here:
Reason number one that the inquisitorial system fails even as theory, therefore, is that it's wildly impractical. We don't even have enough judges to handle their comparatively limited role in the reality of the American judicial system, nor could we reasonably field enough competent judges to handle this role. There is too much litigation. End of story.
As an additional practical hurdle, the appointment of federal judges is already a point of enormous political contention. What do you suppose happens when those appointments a) increase in number by several orders of magnitude and b) take on drastically more importance because of the expanded role of the judiciary? In fact, nothing, because this is a totally fanciful proposal that has a snowball's chance in hell of going anywhere. You might be able to move it through here and there at the state and local levels, but state and local courts are such quagmires of incompetence that you could put ferrets on the bench and nobody would know the difference.
Here's how this situation is now working in my mind: I know the reality of our court system, because I am a part of it. I have a reasonable sense of its strengths and its weaknesses, at least with respect to civil cases. When presented with the proposal of an inquisitorial-judge system, I evaluate it as a matter of theory and find it utterly lacking. Because I am a lawyer, the analogy that comes to mind is that the existing court system has moved for summary judgment and made a prima facie showing that it is entitled to judgment in its favor. The burden then shifts to the inquisitorial system to rebut that showing. To the extent that I have a dog in the fight, it's the adversarial system, and I have neither the time nor the inclination to spend time looking to support a position that I think lacks merit. If a reasonable case is made for it, I'm happy to read and assess it. I am not happy to throw my time away on something I think is, at best, wholly impractical.
3) I hang out with fancy expensive lawyers because that's what I am and that's usually who my adversaries are. I sometimes encounter slimy, shitty lawyers in my work and I loathe them and everything that they stand for. I am confident that your assessment of Baltimore public defenders is both accurate and generally applicable, because there is no money in any budget anywhere for public defenders, so you're not going to attract many good lawyers to do that work and even the good ones won't have the resources they need to deal with the job properly. Since I can't conceive of a world in which you could dredge up the funding and political will to gut the system and replace it with enough competent inquisitorial judges to do a better job but could not dredge up that same funding and political will to make public defense both attractive and adequately funded, I don't see the relevance of this point. If the issue is that there aren't enough resources to do the work that needs to be done, the solution is not to blow up the system and replace it with a shittier one. The solution is to devote more resources to the problem.
Herein lies the problem: you're giving the breadth of the adversary system (sometimes extremely well prepared and sometimes not, etc) while giving the failure-case description of the inquisitorial system. I could as easily describe the adversary system as "A team of lawyers using their greater access to investigative and legal resources to legally bludgeon the other side into submission", which is a failure case of the adversary system.
If you're going to go for "grounded in reality" in your description/depiction of one system, you should do the same for the other.
Anyway, I think the world in which we can dredge up the funding and political will to devote a sufficiency of resources to public defenders is the same totally unrealistic, never going to happen world in which we can do the same to find enough competent inquisitorial judges. Our legal system is fucked*.
*A more politically feasible partial solution is to end the War on Drugs. When that's a more feasible solution than something, you know it's crazytown time.
Overworked judges who don't give a flying fuck about the case is the upper bound of the inquisitorial system. There are too many cases. If I were to give a range, it would continue down from there to include things like "moronic judges who pay zero attention, do no work, and get everything wrong." Additionally, your example of "a failure case of the adversary system" falls well within the range I posited as an example of a case in which one side's lawyers are extremely well prepared and the other side's aren't. This certainly does happen.
I also doubt we will ever adequately fund public defenders, much less critical assistance with civil matters for people who don't have the resources to get the legal help they need. It is a subset of the overall theme that America Fucking Blows.
Slash the number of cases by decriminalizing victimless crimes such as drug use and solicitation and there might not be too many cases for a properly funded* inquisitorial system to be "Overworked judges who don't give a flying fuck".
*Overworked judges who don't give a fuck because they have too much cases probably couldn't be much worse, on the criminal end and on the civil "don't have the resources for legal help against this massive team of lawyers" end, than what we currently have. It's already the case that in, say, Baltimore, the vast majority of criminal cases that go to trial are reliant on the judge to ensure that justice is done.
I suspect there are vastly more civil cases than criminal cases. Also, I think that "lowly individual versus massive juggernaut lawyered-up company" doesn't happen that often. I'm thinking more of mundane issues like landlord-tenant, debt collection, etc. The people who represent landlords and debt collectors are, in addition to being bad people, generally awful lawyers,* but awful lawyers are still better than not even knowing that the lease you're looking at right now has tremendous legal problems.
* While the following should not be construed as attorney advertising, I can say from experience that I have had bowel movements that are better lawyers than the cretins that represent debt collectors. Today.
Eh, even just "individual vs company that has a lawyer on retainer" is kind of brutal. At that point you're already rolling the dice on finding a lawyer who's halfway competent who'll represent you on retainer, and the vast majority of people do not have the resources to hire a lawyer otherwise.
They are called notaries.
If your claim is meritorious, the company's lawyer on retainer (or, more likely, in-house counsel) will probably recognize that and settle. I will, of course, not disagree with the sentiment that plaintiff's lawyers are bad.
I was curious about this, too. That's true in the federal court system (note these are filings, not trials, to show actual workload on the judges)..
And add in 1.5 million bankruptcy filings to the civil total (though those do go to specialized judges).
State numbers, though...good lord.
Roughly 20 million criminal filings, 19 million "civil", 6 million domestic, 2 million juvenile...and 54 million traffic cases. LOL.
Municipalities funding themselves through traffic cases is also bullshit and should be nuked from orbit.
Separate names with a comma.