The Decline and Fall of the American Legal System
By Dwight Owen Schweitzer
June 30, 2010
Many years ago, as a young lawyer full of idealism in the belief that one person can make a difference, I loved the law and saw it as the quintessential instrument of that process. I still recall a professor of mine who lectured my entering class at Vanderbilt Law School, telling us ‘the law is the grease on the wheels of civilization’. If so, civilization is in trouble because the state of our legal system is in trouble and it is a process that has gone on for a long time.
In the late 1970’s the Connecticut Bar Association conducted their annual poll of members of the Connecticut Bar, asking them to rate the judges they had appeared before at least 6 times in the preceding two years on such qualities as judicial competence, demeanor, intellectual integrity and the appearance of bias. For the first time (and as it turned out the only time) they published the results. The reaction of the Judiciary prompted me to write an editorial in the Hartford Courant, the newspaper of record in the State of Connecticut. The thoughts I expressed then I think are worth repeating now, viewed in the context of the current perception of both lawyers and judges from both inside and outside of the profession.
Judging the Judges: A Needed Move
By Dwight Owen Schweitzer January 27, 1977
It is a significant milestone that the results of the Connecticut Bar Association survey of our judiciary should at last be made public. It is after all the public who are served well or ill by how justice is administered, and only through public awareness will there be accountability and constructive change. The veiled secrecy in which the Judicial Branch has heretofore been swathed has done little to promote competence, diligence and intellectual integrity.
As a practical matter judges have been virtually unaccountable for a broad range of abuses, mostly of a technical nature which are known only to lawyers. Judges however, exert tremendous influence over the lawyers who must appear before them because a part of what a lawyer does requires the cooperation of the judiciary. That cooperation, if not forthcoming, can cost a lawyer and eventually his client, substantial amounts of time and money as a consequence. Openly criticizing a judge can be devastating to a lawyers career and his ability to represent his clients in matters coming before the courts.
Unfortunately the quality of our judiciary varies widely. In most jobs there are influences exerted to curb excesses; the boss, the customers, the clients—that broad class of people who have to be pleased with one’s work. This principle does not apply to judges. The Judiciary committee of our legislature has never removed or refused to reappoint a judge, though many have been known to be incompetent. The committee holds it’s hearings in secret and requires witnesses to submit their testimony in writing and in advance. Common sense dictates that no lawyer would appear to testify under those circumstances yet, by and large, only lawyers know which judges abuse the power and trust vested in the office they hold.
The problem is further complicated by the fact that the system for selection of judges rates political connection and service above capability and merit. Cronyism is rampant in the judicial selection process where people of influence exert tremendous power in proffering the names of judicial nominees. As a consequence good judges (and there are many) are as often as much an accident of the system as are their incompetent counterparts.
An independent judiciary, crucial to the development of our legal institutions, should never mean independence from criticism, especially from the only body that has the requisite expertise to criticize. The proliferation of law has resulted in more and more people coming into contact with our legal system, and especially the courts to resolve their differences. There must be viable checks and balances to the power exercised by the judiciary. Without this survey realistically none exists.
Judge Saden’s reported suggestion that the lawyers identify themselves curiously illustrates my point. Why does he want to know? If I had to sigh my name to that evaluation it certainly would not have colored my thinking but it would undoubtedly curbed my candor (unless of course I had simultaneously decided to go to medical school). Equally absurd is the suggestion that judges rate lawyers. The majority of a lawyers work does not cause the lawyer to come in contact with judges, whereas lawyers participate totally in what judges do and how they exercise their power.
Furthermore, to dismiss the results of that survey as coming from a group of soreheads or poor losers is just nonsense. The survey required a lawyer to have appeared before each judge he rated at least six times within the preceding two years. It is highly unlikely that any lawyer ‘lost’ all six encounters especially as much of court decision making includes compromise.
This is not to say that the survey results were completely accurate and it is doubtful that any lawyer would agree with all of its conclusions. It is necessary, however, to the development of the institutions of a democratic society that there be no sacred cows, and no source of power hidden from public awareness and scrutiny.
Since that time, lawyers are allowed to advertise, Judges are often elected and not appointed and other superficial changes have altered the appearance of our legal system without any real systemic change and certainly not for the better, lawyers are held in less esteem than used car salesmen and the quality of the judiciary has deteriorated in varying degrees from one end of the country to the other.
Most lawyers who have practiced more than 10 years would rather be doing something else and the public’s perception of justice is that it is more a commodity to be bought and sold or a luxury for the rich who can afford lawyers when most cannot, and not a basic right of being a citizen of the United States.
In Florida, if a litigant wants an official transcript made of anything argued before a judge, other than a trial, they have to bring their own stenographer at their own expense, which offers the judiciary the ability to be as arbitrary and dismissive of the law as they wish with no record of what was before them. Often cases are dismissed without opinion to explain the legal basis for the decision and the Circuit Court of Appeals almost universally affirms that dismissal also without opinion giving the unsuccessful litigant no further right of appeal and no reason to understand why the door to the courthouse was closed in their face.
I think it is fair to suggest that the cohesiveness of our society is breaking down exponentially, that the gulf between the haves and the have not’s is widening, that the respect for law is equally disregarded by the enforcers of the law as it is by those who break it, and when taken as a whole, it is a process that, if left to continue will be cause for the wheels of civilization to ultimately come grinding to a halt.