Advance the Constitution – Our Civil Courts

August 9th, 2018

I live part of each year in the Middle East where the justice system of the nation of Israel has been in development for over 3000 years. Firmly established by the time democracy ultimately combined with a justice system in the Western world, there should be no surprises in the realisation that the United States court system remains an immature one. Still, the effort required to raise United States standards to provide for the equal treatment under the law for all who dwell here, is easily within reach. This post is an outline of how we may advance the constitutional practice of civil law without limiting court access to the poor.

Today, lawyers trust that their colleagues will not allow the justice system to challenge their oratory abilities. Trading the time-honored practice of presenting adversarial positions before the bench, the client is the new adversary in both criminal and civil cases. Accommodating generations of lawyers, who’ve successfully avoided taking cases to trial, speaks volumes regarding a growing contempt for clients.

Like planes over a crowded airport, cases are stacked on high and allowed to circle without landing upon the field of real justice – the courtroom. Judges sign off on deals in criminal cases in a manner not unlike the old Soviet ‘conveyor belt’, where the major decision made is when you pled guilty to any crime other than a capital offence.

Today, civil cases ignore the plaintiffs’ cause of action and defendants’ rights in favor of lawyerly bargaining skills in order to avoid trials. Civil courts have been fully privatized, leaving jurists captive to injustices performed beneath their own noses. Criminal cases are state matters, so defendants are guaranteed legal representation. Civil cases are arguments between individuals and therefore depend solely upon the efforts of private legal practitioners. In the criminal proceeding of “The state versus Horacio Alger”, a court appointed lawyer will bargain for Alger. However, in the civil action of “Horatio Alger versus Ghengis Khan”, Ghengis can win if his privately hired lawyer is capable of tying the case up for years until Horatio dies of his wounds.

Genuine competition in the legal marketplace is needed to return lawyers to the courtrooms in civil matters. Judges must be able to preside over cases that leave precedents instead of agreeing to the sealed settlements that presently comprise the lion’s share of financial ‘wins’ for lawyers. Significant cases can be left to die of old age merely by assuring clients the business is well in hand until the client is informed that the firm is no longer interested in the case. That’s shorthand for, ‘We couldn’t get a settlement offer and won’t go to court’. However, hiring new counsel for aged suits is near to impossible.

Competition for trial cases is easily created with the formation of a new division within the office of the D.A. of each municipality, agreed to by the state legislature. I believe we can restore quality to legal representation through creation of a civil prosecutorial office. Run like most non-profit law firms, suitable salaries and legal costs would be funded through winning case fees, thus ensuring the ongoing livelihood of the division. Clients will have more than one option in hiring and firing lawyers, should the usual run of ‘firm’ attorneys fail to perform in the legally required zealous fashion. Charges to the taxpayer are negligible.

Judges will get off the ‘sign this deal’ conveyor belt, when trial experience again becomes required among lawyers. Judges can help by insisting needless delays are avoided using the precedent known as ‘zealous prosecution’, adding the clause to legal contracts for many firms. It’s not too late for U.S. cities here restore full integrity to the courts.

This program is in review presently in California and Illinois. No law student should graduate expecting not to fulfill the responsibility of presenting cases as per original intent. No lawyer should expect election or appointment to the bench without extensive trial experience and we are running out of prospects for future jurist positions. The D.A. would further impede frivolous suits and pursue cases of perjury where witnesses lie for profit. Others who fear to speak freely may be assisted. Some cases may be deemed criminal, rather than civil, and remanded to the more appropriate division.

It’s past time we ended our teenage years in this country and fulfilled the promise the founders established with the signing of the Constitution in 1791 – not 1776! The country ran without that blueprint until we were satisfied with the framework. Let’s get the roof work finished instead of arguing over the size of the nails! Here’s hoping this nation of upstarts, who believed in freedom, will agree not to jeopardize the liberties granted by a just legal system.

Categories: commentary, Constitution, Life Observations, Practice of Law

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