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By Richard W. Morris Nobody, but nobody, to date has proposed a real reform of the court system. This article does. The purpose here is to present an idea of true reform as distinct from the history of patchwork reform to a system of inherently poor architecture.
What is judicial reform? Let’s get our definitions straight from the beginning: The complete or partial change of the judicial system. Reform, in this context, means a fundamental change. An old saying goes: if you always do what you always did, you’ll always get what you always got. The State Bar of Arizona president, Joseph Kanefield, falls into this trap when he argues for more funding for the current justice system1 so we continue to get what we always got. Maybe funding is not the answer.
The first “reform” attempts were in 1922 when Chief Justice William Howard Taft proposed “at-large judges” to be assigned to congested courts. The already anointed federal judges, professors of law (both part of the Political Class) and wannabe lifetime appointees supported him because they hoped this would deflect the efforts of ne’er-do-wells who advocated an end to life tenure on the federal bench and more jurisdictional restriction of the lower federal courts. If we have learned nothing else as adults, it should be the truth of Lord Acton’s edit: Power Tends to Corrupt and Absolute Power Corrupts Absolutely.2 Those in power -1-
litigants or witnesses with courtesy.universally seek to increase the scope of their authority and deliver the message the little people are powerless against their awesomeness. as to the Superior Court. we have both an appointed and elected judiciary.3 arrogant judges not treating counsel. Perhaps there are better ways to select judges. depending upon the county. which includes today’s judges. King George appointed judges at his pleasure. those anointed are part of the “Political Class. congested calendars with associated delays.” and separated from the citizenry. Offend the king. the thirteen independent countries5 each adopted the Common Law and the accompanying judicial system. At the founding of the United States. lose your job — or your -2- . One of the hottest debates in judicial politics today is whether judges should be elected or appointed. but society at large. and all Justice Court judges are elected. The current system has spawned not only the typical problems of litigants feeling victimized by the courts. Either way. This is an example of the Fallacy of the False Alternative. professional allegiances and cognitive dissonance trumping truth. and a strained state budget. We now live with a judicial system that fails not only those forced to participate. At the time. wrongful criminal convictions. judges4 suing the state to keep their comfy pensions. In Arizona.
but a couple of centuries show this scheme does not work. Suppose judges are selected other than by appointment or election. and judging is not necessarily their full time job. If elected. The founders of the United States thought a new and improved plan: appointing a judge for life. -3- . Nice try. This. There has never been a real reform in the history of the United States or in any of the Common Law countries.6 they had to “know” the right people. To get appointed. but offers an entirely new concept of conflict resolution. If there are no permanent judges. by itself. and moved to the bench. with the hope of making the judge independent. they had to mount a publicity campaign in the judicial district to gain name recognition. then we also eliminate the pensions and all the perks government employees get with their jobs. Such a process eliminates objections associated with either of the current systems. whether appointed or elected. This article does not attempt to repair the rusting hulk of a judicial system moored by a frayed and rotting rope to an antiquated anchor seated deep beneath the sands of the Early Middle Ages. will reduce the cost of judicial proceedings.head. got hired by some government job (or large law firm whose clientele involved government in one manner or another). Judges are political. Far too many judges went to law school.
the court clerk reaches into a computer “hat” for a randomly generated individual who is thereby selected for any party refusing to select. people seem to enjoy the judicial power of telling others what to do — or love the title. I think all judges should take -4- . For better or worse. we don’t want to violate the 13th Amendment with involuntary servitude. such as professors who came out of law school in June and were assistant professors the following September. Given most lawyers are wannabe judges. After all.Ah. you ask. the two select the third who acts as the presiding judge. Qualifications to serve as judge: any lawyer licensed for X years. For the moment. the pool is probably as large as the one at San Alfonso del Mar resort at Algarrobo. we can figure out a way for them to join in the selection. on Chile’s southern coast. say ten years. Trial Judges We start with a three-judge panel. let’s keep things simple. If one side fails to select. how can we do this? Fire the judges and abolish juries.7 Of those lawyers qualified to serve as judges. Additional qualifications might exclude those who did not practice law. to give the individuals time to experience what the real world is all about. When multiple sides with conflicting interests pop up. Each side selects one judicial officer. only those who would like to do so would be included on the judicial panel.
and advanced evidence. Most are lucky to bill four. for reasons I will address in another article. which is tantamount to being the judicial officer. In civil matters. many ideas come to mind. Few “real” lawyers bill eight hours a day. the judicial wannabe’s will take this into account when setting their fee schedule. This process is already famous for making the resolution of disputes within the reach of the entire population. Those who want to be selected are obliged to be competitively priced. efficient thinking. and the third judge is paid by both parties at whatever the average of the amount each of the other two judges is paid.9 So. arbitrators or judges pro tempore. each party pays the rate for the judge they select. When -5- . many lawyers volunteer for free to be mediators. which may be lower than their “normal” charges. I say lower for several reasons.8 Each potential judge sets whatever he or she wants as a standard billing rate to sit as a judge. How much and who pays the judges? In a criminal case. For example. the state. The motivations probably run from wanting to do pro bono work to gaining experience and a reputation in dispute resolution.(and pass) courses in recognizing cognitive dissonance in themselves and others. Cost is one aspect of justice and litigants must consider the price of a judge in the selection process. Observing the situation today.
Note. one court for each case. The implementation will be gradual.10 perks.12 which makes the employment of each judge substantially more than first appears by a simple look at the posted salary. A system which is cheaper to operate. Cases filed after January 1 would be handled under the new system. get a job. Better court availability because there is. Current cases would remain on the existing system or the parties could elect to change to the new and improved procedures. and apply to be part of the pool. not many cases crammed into one court. This plan is cheaper than the current system of salaries. that individual’s rate goes up or down and this controls how larger cases are decided by pricier judges and smaller cases by more inexpensive judges. For example.a particular person’s reputation spreads as to the quality of decisions. The major advantages are: 1. in essence. Without going county-by-county I can’t get a total of how many Superior Court judges and commissioners are sitting. this does not change the law and the courts would still be bound by stare decisis. 2. but I suspect more than a couple hundred. allowing the court to more deeply -6- .11 and pensions. Arizona has 41 Superior Courts spread across its 15 counties. as judges come up for a “retention” placement on the ballot13 they would leave the bench.
Beyond the direct and indirect costs. This civic responsibility comes at high cost. indirectly. not only directly due to administration. his or her family. but. 3. for the administration of dispute resolution and justice. With a large percentage of Americans living paycheck-to-paycheck (if employed). Jurors are placed in the position of -7- . More civility among participants where judges treat participants with greater respect because the judges could be on the opposite end of the legal proceedings as counsel (or party) at one time or another as well as that pesky item: the participants are the folks paying them. the income loss is devastating to the individual. and to the employer who can no longer get the job done for which the person was hired. Jury The above does not count the cost of juries. or some other public-trough). the city. because of the cost to the society at large by reason of snatching productive people from their jobs.consider the law and the facts in the individual case. more importantly. Juries are expensive. even a short-term trial affects the juror’s income. Unless the juror works for a government agency (like the post office. the issue is more serious. and 4. Judges are in tune with the real world because they work in it and are not cloistered in their protected environment.
15 as a means of taking the census and collecting taxes. hire a professional.” Worse: if they couldn’t escape.17 -8- . Rather than argue about what is a good method to select a jury. which is not much better in terms of justice. To do this. they are compelled to sit as slaves. presumably we would experience more “just” decisions.” and the Magna Carta in 1215 recognizes the concept.16 Back then. from which they evolved into “doing justice. is cause for disqualification.14 Written history shows they go back at least to the assizes of Henry II. If we had a professional jury pool. hundreds of years ago. Today court cases are more complex and such knowledge. the cases were more simple than today. let’s ask a more basic question: Why a jury in the first place? In law school. A universal rule applies: When you want a job done right. the pay must be high enough to attract qualified people rather than the person described in the bromide that “nobody wants their fate decided by a jury so stupid they could not get out of jury duty. This holds true from brain surgeons to yard workers. I was taught various hypotheses about the origin of juries because the origins of the jury system are a mystery. as Judge Brownes points out. They served to settle a quarrel between neighbors.being fact-finders with no education in the subject. jurors were acquainted with the litigants and the dispute. In fact.
self-justification and a host of memory and thinking errors which operate in the minds of all humans (yes. respond: “To determine the truth. compounding the factfinding function when they make thinking errors in processing the information. and jurors). including judges. psychology and memory function. Mark Twain picked this up a hundred years ago when he said: It ain't what you don't know that gets you into trouble.While British subjects a thousand years ago did not understand the mental machinations of cognitive dissonance. Psychologists Carol Tavris and Elliot Aronson18 point out everyone has trouble accepting information that conflicts with a belief we “know for sure” is right. confirmation bias and self-justification. However. It's what you know for sure that just ain't so. they had experienced an arrogant political class dressed in the elegantly robed-andwigged trappings of arbitrary authority and viewed the jury as their best protection from the government’s biased judiciary. Science now knows about the psychological processes of cognitive dissonance. causing people to receive information and remember differently what facts actually flowed into their brains. through scientific research in various fields of neurology. we know today an eyewitness account is the worst method to learn of the facts surrounding an event. when asked the purpose of a jury.” My. lawyers.19 -9- . confirmation bias. Most lawyers and judges. that does have a pleasant ring.
bestow a bounty upon each citizen as an individual and the society at large. and demonstrate that our memories tell more about what we believe now than what really happened then. Professor Steven Novella. then it tips the scale. All of which means. and modern cases are too complex for untrained finders of fact. the litigants could have the choice between the new system or having a trial the old-fashioned way with the court peopled by cronies -10- .Tavris and Aronson illustrate the brain’s “blind spots” which make us unable to see our own prejudices. devotes an entire lecture to the “Flaws and Fabrications of Memory” in his course Your Deceptive Mind. Scintillas have varying weights. we do not need a jury. The Amendment could be repealed or modified and. In conclusion. biases. with a three-judge court. an academic neurologist. as in France. Especially when we give them a preponderance of the evidence instruction as a guide. If we no longer have a government judiciary. The Seventh Amendment? Fear not. telling them if there is one scintilla of weight for one side. do juries discover the truth? Probably not. corrupting influences.20 These are important issues when dealing with witnesses and evidence in a trial. then we no longer need the protection of a jury from that government. if left as is. and hypocrisies. If we eliminate juries we cut costs. depending upon the finder of fact.
Xplore Inc. and then again when they ran for office and failed to get elected. Kanefield. Tavris. 6. thus causing them to kiss up to successful politicians who would appoint them to the bench. 5.html?gclid=CNrwt9f OsrACFegbQgod1VynTA. Joseph. and Aronson. reported in the Arizona Republic. 2012. at 6. Carol. This is not a joke. April 2012. -11- . Lord Acton.21 1. 2012. front page “Valley & State” section. I know personally of one such case.brainyquote. While the civil jury is part of the fabric of our way of life. ISBN 978-0-15-603390-9. Bad Decisions. 2. Philip Hall. New York: Harcourt (Harvest Book). Mistakes were made (but not by me)—Why We Justify Foolish Beliefs. March 8. I suspect a litigant will choose my new plan and after it has been shown to be superior for a decade or so. The Price of Democracy. perhaps it is time to change the system so we stop getting what we always got and try a new suit.com/quotes/quotes/l/lordacton109401. represented by retired judge Colin Campbell. accessed June 3. Jefferson Lankford. Retired judges Ken Fields. 3. http://www. The Treaty of Paris was signed in 1783 and ratified in 1784. Elliot. 2012. 2007. BrainyQuote. There may be some truth to the old joke that appointed lawyers are failures twice over: First because they failed practice. and Hurtful Acts. See Chapter 5. 4.and those too feeble of mind to escape jury duty. An important fact often overlooked by modern historians.com. Arizona Attorney. 7. and Jon Thompson. then the process of amending the Constitution should be perfunctory.” Parliament and the Crown (and the former colonists) recognized the birth of thirteen new nations on the North American continent. The British did not recognize “America.
paid holidays (more than in private practice). The article states Maricopa County Judge Norm Davis believes the system is fair for judges.00 per year salary. in eight parts. http://law. 2012. January 1.edu/risk/vol1/winter/bownes. Vacation (lots of it). after 20 years are able to retire on a pension that pays them 80 percent of their final annual salary in the first year alone. According to the Pima County website. including judges. Could they really? According to salary. According to an Arizona Republic Investigation.html and www. 9. The National Center for State Courts. for example: Medical Insurance. but the use of the jury system appears to have stemmed from yet earlier times. before any cost-of-living adjustments kick in. which is technically the High Middle Ages. 10. An excellent example of how anyone in power wants to retain that power with the least oversight possible. elected officials. Baker. J. it would be all judges sitting by reason of the current system would be every two years.com. the Superior Court judges are now lobbying to have the retention ballot every eight years instead of every six. the perks available are. In true form.azcentral. 2011. 14. Which leaves us with the question: Was Judge Davis out of touch with reality? Read more: http://www. H. 2010. Yes. Payment. and Savings Bonds.com.com/news/articles/arizona-pension-funds-elected. Deferred Compensation. King Henry II.000.htm 15. See Arizona Senate Concurrent Resolution 1001. When one adds the salary and the perks. 12.unh.000. issued a report showing Arizona judges get about $155.023. 11. sick leave. State Retirement System and Long Term Disability. Brownes. wherein we find the majority of lawyers. even before the Norman Conquest in 1066. An -12- . March 18. The salary of a judge? $155. Dental Insurance. Short-Term Disability. (2002). Life Insurance. who could earn far more in the private sector as lawyers. If I had a choice. as it is now. Employee Assistance Program.8. we all know lawyers in larger firms bill 200+ hours per month by billing when they visit the restroom on the grounds they are thinking about the case. the median salary (not sole or small firm practitioner) for a Phoenix attorney (highest in the state) was $84. though important. 13. my guess is most judges never made that much in private practice and had little hope of netting such a largess. This is not true in smaller firms. ruled from 1154 to 1189.salary. is not essential to fundamentally reforming the system because it is an administrative item to be worked out later. This does not include perks. Hugh Henry. Subsidized Bus Pass Program. Should Trial by Jury be Eliminated in Complex Cases? University of New Hampshire School of Law. published November 10.
The Great Courses. 18. The Document does not use the word “jury. Magna Carta of 1215.edu/halsall/source/magnacarta.html 17. New York: Harcourt (Harvest Book). ISBN 0-406-93053-8 16. Carol. ISBN 978-0-15-603390-9. More than one person who read a draft of this article told me the idea is radical. Bad Decisions. Especially Chapter Five. Bownes. 21. about the legal system. ISBN 978-1598038286.fordham. pp. “You’re right. 19. And you will enjoy my article entitled: Police Reform: Can the Cops! -13- . Ibid. http://www. “Your Deceptive Mind: A Scientific Guide to Critical Thinking Skills. I recommend this book to everyone. and Aronson.Introduction to English Legal History (4th ed. 72–76. London: Butterworths. “Radical” means a fundamental change. Tavris.” but the function is set out. Mistakes were made (but not by me)—Why We Justify Foolish Beliefs. My response was. 20. and Hurtful Acts. Elliot.). but the actual source remains clouded in mystery.” lecture 4. 2007. This quotation is widely attributed to Mark Twain.
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