General Practice, Solo & Small Firm DivisionMagazine
Volume 17, Number 2
A KINDER, GENTLER JUSTICE SYSTEM
BY JUDGE J. THOMAS GREENE
Today, U.S. courts have their hands full. In addition to strains caused by an expanding workload, the public perception seems to be that the justice system is broken; the jury system is not working properly; the amount of justice meted out depends on the amount of money a person has; there is disparate and unequal treatment of the races; lawyers are greedy; and judges are insensitive.
Surveys have revealed three troubling aspects of the public's perception of our justice system: It knows little about how our courts function; there is an underlying feeling of hostility toward the "Third Branch of Government;" and what little people do know or think they know about the courts comes mostly from 20-second sound bites, television dramas, or atypical high-profile cases. The public appears to think there are grave defects in our judicial system and that we need a more workable, kinder, and gentler justice system. The truth is that we do not need a kinder and gentler justice system. What we do need is a kinder and gentler perception of our justice system.
Placing Blame. In order to achieve this, we must identify those responsible for the unfavorable public perception of our system. The public in general holds lawyers and the legal profession in low esteem. The public's current dissatisfaction with the legal profession appears to have been brought on by an unsavory minority who have abused the system and employed sharp practices that have tended to discredit and demoralize the profession as a whole. Beyond the few "bad apples" of the profession, however, an eminent legal scholar placed blame on "a not inconsequential part of the profession," those who "do not cheat or steal or lie, but who also feel no professional obligation to provide counsel to the poor, shoulder the public service responsibilities of the bar, or work for law reform."
To the extent that the foregoing indictment was meant to apply to lawyers as a whole it is too generalized and unfair. The vast majority of lawyers selflessly devote a good portion of their time, gratis, to providing legal assistance to the poor, working on law reform, and taking on unpopular causes. These positive facts about lawyers need to be made more widely known. However, before lawyers can effectively defend and improve the public perception of the justice system they must work at improving their own public image.
Generally, it appears that the media is looking for negative subjects to cover because they are the ones thought to be the most newsworthy. Unfortunately, what is often newsworthy isn't always positive or insightful with regard to the courts. Clearly, the media rejects the notion that it has a duty to educate the public about the virtues of the court system. I submit, however, that the media has a duty not to mislead the public and not to report inaccurately. Beyond the negative reporting and emphasis on sensational subject matter, isn't there also a moral duty to report positive things in a balanced way?
Ideally, the judiciary itself should be its own best spokesperson. However, given the prohibitions on judges explaining and discussing their rulings in pending cases, this is not always possible. This inability to respond is particularly troubling when the judge fails to make his or her rulings clear and understandable in the first place. Lack of response by the judge or others to "set the record straight" may contribute to the public's unfavorable impression.
Some of the unfavorable public perception of judges and courts may reflect broader social and cultural dissatisfaction in the nation related to the disparity in wealth. The perception of how wealth may affect justice is typified in the well-known New Yorker cartoon in which the rich lawyer asked his client, "How much justice can you afford?"
Targets of Reform and False Solutions. The most common targets for reform are the adversarial system and the jury system. Critics often suggest the inquisitorial system of continental European democracies, wherein a judge has the principal responsibility of ferreting out the facts, as a preferable alternative. Under that system, the judge is not limited to what the lawyers present, but may consider anything that he or she thinks is pertinent. In addition, there is no jury. This approach has been studied extensively and rejected in a report by the Joint Conference of the American Bar Association and the Association of American Law Schools. Their study noted that where judges become sole fact finders without adversary presentations there is a tendency to emphasize those facts that fit a particular theory of the case, and to discount other facts. There is less chance that this could happen in our present adversary system.
Some have proclaimed that the jury system is obsolete and ought to be scrapped. Although abuses and miscarriages of justice occasionally occur, more often than not the jury system works. The collective wisdom and experience of 12 dedicated persons provides a large fund of common sense. Even where it is apparent that juries reach the right outcome for the wrong reasons, the result almost invariably is the achievement of a just result. The problem is that the offbeat, unusual, and outrageous jury verdicts are widely publicized and exploited by the media as representative of the so-called flaws in our system. As a result, the public makes unwarranted conclusions and engages in unjustified criticism without knowing the actual facts and circumstances presented at trial, and often based on incomplete or erroneous reporting of the case.
The upshot of the furor about the jury system is that there will be no radical reform, but that certain improvements will come with time. For instance, lawyer voir dire and lengthy jury questionnaires, which many consider to be time consuming and an invasion of privacy, may be restricted. Peremp-tory challenges may be on the way out in an effort to eliminate group stereotypes and the stacking of juries with persons who are not the defendant's peers. Eventually, jurors may not be subject to disqualification simply because they have read or heard something about a case outside of the courtroom, if they have formed no opinion and are otherwise found to be fair and impartial.
Alternative Dispute Resolution (ADR)-arbitration, mediation, summary jury trials, and other settlement-oriented programs-is bandied about by some as the solution to the alleged problems with our current justice system. There is much to be said in favor of these alternatives, not the least of which is the reduction in cost and delay. The problem with the ADR option is that some of the safeguards that help to ensure a fair and proper hearing are not present, e.g., the rules of evidence, a jury to find the facts, and the right to appeal. In pursuing this alternative, we should not forget that the fundamental purpose of the courts is to litigate differences, and that every citizen has a right to his or her day in court. Although ADR has a place in the resolution of legal disputes, we should view it as just what it is-an alternative, not a replacement.
Organized Bar and Service Organizations: The True Solution. The organized bar is in a better position than individual lawyers and judges to enlighten the public about the positive aspects of the justice system. This being the case, it must take the lead in letting the public know what good things the justice system does. In many jurisdictions, lawyers through their state bars are already providing much valuable public service. The public service activities of lawyers and judges should be more widely publicized and made known to the public at large. Public service organizations-the Rotary Club, for example-might address some of the areas of concern and controversy such as abuse of the system in certain high-profile cases; whether there is a need for cameras in the courtroom; whether the adversary system is outmoded and unfair; whether the jury system should be abolished or modified; and whether trials should be replaced by ADR. An enlightened discussion of these and other matters of concern would bring about an increased level of public understanding. An accurate and informed awareness and understanding of the justice system as it actually is and as it operates is the key to a more realistic and favorable public perception of the system.
J. Thomas Greene has been a practicing lawyer for 30 years and a U.S. district court judge for 15 years. He was a member of the ABA General Practice Section's Council for nine years and the ABA House of Delegates for 20 years, and served on the ABA Board of Governors from 1988-1992.
For more Information About the Judicial Division
- This article is an abridged and edited version of one that originally appeared on page 22 of Judges' Journal, Summer 1999 (38:3).
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- Periodicals: The Judges' Journal, quarterly magazine; The Judicial Division Record, quarterly newsletter to keep members current on the activities of the Division and its constituent Conferences.
- Books and Other Recent Publications: Judicial Outreach on a Shoestring: A Working Manual; Model Program to Respond to Criticism of Judges; The Directory of Minority Judges of the United States, 2d ed.; Litigation Control: The Trial Judge's Key to Avoiding Delay; Translations of Commonly Used Court Related Phrases.