Judicial Reform: Junk the Judges!

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? Lets 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, youll 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 neer-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 Actons edit: Power Tends to Corrupt and Absolute Power Corrupts Absolutely.2 Those in power -1-

universally seek to increase the scope of their authority and deliver the message the little people are powerless against their awesomeness, which includes todays judges.

One of the hottest debates in judicial politics today is whether judges should be elected or appointed. Either way, those anointed are part of the Political Class, and separated from the citizenry. In Arizona, as to the Superior Court, we have both an appointed and elected judiciary, depending upon the county, and all Justice Court judges are elected. This is an example of the Fallacy of the False Alternative. Perhaps there are better ways to select judges.

The current system has spawned not only the typical problems of litigants feeling victimized by the courts, wrongful criminal convictions, professional allegiances and cognitive dissonance trumping truth,3 arrogant judges not treating counsel, litigants or witnesses with courtesy, congested calendars with associated delays, judges4 suing the state to keep their comfy pensions, and a strained state budget. We now live with a judicial system that fails not only those forced to participate, but society at large.

At the founding of the United States, the thirteen independent countries5 each adopted the Common Law and the accompanying judicial system. At the time, King George appointed judges at his pleasure. Offend the king, lose your job or your -2-

head. The founders of the United States thought a new and improved plan: appointing a judge for life, with the hope of making the judge independent. Nice try, but a couple of centuries show this scheme does not work.

Judges are political, whether appointed or elected. Far too many judges went to law school, got hired by some government job (or large law firm whose clientele involved government in one manner or another), and moved to the bench. To get appointed,6 they had to know the right people. If elected, they had to mount a publicity campaign in the judicial district to gain name recognition.

There has never been a real reform in the history of the United States or in any of the Common Law countries. 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, but offers an entirely new concept of conflict resolution.

Suppose judges are selected other than by appointment or election, and judging is not necessarily their full time job. Such a process eliminates objections associated with either of the current systems. If there are no permanent judges, then we also eliminate the pensions and all the perks government employees get with their jobs. This, by itself, will reduce the cost of judicial proceedings.

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Ah, you ask, how can we do this? Fire the judges and abolish juries.

Trial Judges We start with a three-judge panel. Each side selects one judicial officer, the two select the third who acts as the presiding judge. If one side fails to select, the court clerk reaches into a computer hat for a randomly generated individual who is thereby selected for any party refusing to select. When multiple sides with conflicting interests pop up, we can figure out a way for them to join in the selection. For the moment, lets keep things simple.

Qualifications to serve as judge: any lawyer licensed for X years, say ten years, to give the individuals time to experience what the real world is all about. Additional qualifications might exclude those who did not practice law, such as professors who came out of law school in June and were assistant professors the following September.7

Of those lawyers qualified to serve as judges, only those who would like to do so would be included on the judicial panel. After all, we dont want to violate the 13th Amendment with involuntary servitude. Given most lawyers are wannabe judges, the pool is probably as large as the one at San Alfonso del Mar resort at Algarrobo, on Chiles southern coast. For better or worse, people seem to enjoy the judicial power of telling others what to do or love the title. I think all judges should take -4-

(and pass) courses in recognizing cognitive dissonance in themselves and others, efficient thinking, and advanced evidence.

How much and who pays the judges? In a criminal case, for reasons I will address in another article, the state. In civil matters, many ideas come to mind. For example, each party pays the rate for the judge they select, and the third judge is paid by both parties at whatever the average of the amount each of the other two judges is paid.8 Each potential judge sets whatever he or she wants as a standard billing rate to sit as a judge, which may be lower than their normal charges.

I say lower for several reasons. Cost is one aspect of justice and litigants must consider the price of a judge in the selection process. Those who want to be selected are obliged to be competitively priced.

Observing the situation today, many lawyers volunteer for free to be mediators, arbitrators or judges pro tempore, which is tantamount to being the judicial officer. The motivations probably run from wanting to do pro bono work to gaining experience and a reputation in dispute resolution. This process is already famous for making the resolution of disputes within the reach of the entire population.

Few real lawyers bill eight hours a day. Most are lucky to bill four.9 So, the judicial wannabes will take this into account when setting their fee schedule. When -5-

a particular persons reputation spreads as to the quality of decisions, that individuals rate goes up or down and this controls how larger cases are decided by pricier judges and smaller cases by more inexpensive judges.

This plan is cheaper than the current system of salaries,10 perks,11 and pensions,12 which makes the employment of each judge substantially more than first appears by a simple look at the posted salary. Arizona has 41 Superior Courts spread across its 15 counties. Without going county-by-county I cant get a total of how many Superior Court judges and commissioners are sitting, but I suspect more than a couple hundred.

The implementation will be gradual. For example, as judges come up for a retention placement on the ballot13 they would leave the bench, get a job, and apply to be part of the pool. Current cases would remain on the existing system or the parties could elect to change to the new and improved procedures. Cases filed after January 1 would be handled under the new system. Note, this does not change the law and the courts would still be bound by stare decisis.

The major advantages are: 1. A system which is cheaper to operate; 2. Better court availability because there is, in essence, one court for each case, not many cases crammed into one court, allowing the court to more deeply -6-

consider the law and the facts in the individual case; 3. 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; and 4. Judges are in tune with the real world because they work in it and are not cloistered in their protected environment.

Jury The above does not count the cost of juries. Juries are expensive, not only directly due to administration, but, more importantly, indirectly, because of the cost to the society at large by reason of snatching productive people from their jobs.

Unless the juror works for a government agency (like the post office, the city, or some other public-trough), even a short-term trial affects the jurors income. With a large percentage of Americans living paycheck-to-paycheck (if employed), the income loss is devastating to the individual, his or her family, and to the employer who can no longer get the job done for which the person was hired. This civic responsibility comes at high cost.

Beyond the direct and indirect costs, for the administration of dispute resolution and justice, the issue is more serious. Jurors are placed in the position of -7-

being fact-finders with no education in the subject. A universal rule applies: When you want a job done right, hire a professional. This holds true from brain surgeons to yard workers. If we had a professional jury pool, presumably we would experience more just decisions. To do this, 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. Worse: if they couldnt escape, they are compelled to sit as slaves, which is not much better in terms of justice.

Rather than argue about what is a good method to select a jury, lets ask a more basic question: Why a jury in the first place?

In law school, I was taught various hypotheses about the origin of juries because the origins of the jury system are a mystery.14 Written history shows they go back at least to the assizes of Henry II,15 as a means of taking the census and collecting taxes, from which they evolved into doing justice, and the Magna Carta in 1215 recognizes the concept.16

Back then, hundreds of years ago, the cases were more simple than today. In fact, jurors were acquainted with the litigants and the dispute. They served to settle a quarrel between neighbors. Today court cases are more complex and such knowledge, as Judge Brownes points out, is cause for disqualification.17 -8-

While British subjects a thousand years ago did not understand the mental machinations of cognitive dissonance, confirmation bias and self-justification, 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 governments biased judiciary.

Most lawyers and judges, when asked the purpose of a jury, respond: To determine the truth. My, that does have a pleasant ring. However, through scientific research in various fields of neurology, psychology and memory function, we know today an eyewitness account is the worst method to learn of the facts surrounding an event. Science now knows about the psychological processes of cognitive dissonance, confirmation bias, self-justification and a host of memory and thinking errors which operate in the minds of all humans (yes, including judges, lawyers, and jurors), causing people to receive information and remember differently what facts actually flowed into their brains, compounding the factfinding function when they make thinking errors in processing the information.

Psychologists Carol Tavris and Elliot Aronson18 point out everyone has trouble accepting information that conflicts with a belief we know for sure is right. 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. It's what you know for sure that just ain't so.19

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Tavris and Aronson illustrate the brains blind spots which make us unable to see our own prejudices, biases, corrupting influences, and hypocrisies, and demonstrate that our memories tell more about what we believe now than what really happened then. Professor Steven Novella, an academic neurologist, devotes an entire lecture to the Flaws and Fabrications of Memory in his course Your Deceptive Mind.20 These are important issues when dealing with witnesses and evidence in a trial.

All of which means, do juries discover the truth? Probably not. Especially when we give them a preponderance of the evidence instruction as a guide, telling them if there is one scintilla of weight for one side, then it tips the scale. Scintillas have varying weights, depending upon the finder of fact.

In conclusion, with a three-judge court, as in France, we do not need a jury. If we no longer have a government judiciary, then we no longer need the protection of a jury from that government, and modern cases are too complex for untrained finders of fact. If we eliminate juries we cut costs, bestow a bounty upon each citizen as an individual and the society at large.

The Seventh Amendment? Fear not. The Amendment could be repealed or modified and, if left as is, 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-

and those too feeble of mind to escape jury duty. I suspect a litigant will choose my new plan and after it has been shown to be superior for a decade or so, then the process of amending the Constitution should be perfunctory.

While the civil jury is part of the fabric of our way of life, perhaps it is time to change the system so we stop getting what we always got and try a new suit.21

1. Kanefield, Joseph, The Price of Democracy, Arizona Attorney, April 2012, at 6. 2. Lord Acton. BrainyQuote.com, Xplore Inc, 2012. http://www.brainyquote.com/quotes/quotes/l/lordacton109401.html?gclid=CNrwt9f OsrACFegbQgod1VynTA, accessed June 3, 2012. 3. Tavris, Carol, and Aronson, Elliot. Mistakes were made (but not by me)Why We Justify Foolish Beliefs, Bad Decisions, and Hurtful Acts. New York: Harcourt (Harvest Book), 2007. ISBN 978-0-15-603390-9. See Chapter 5. 4. Retired judges Ken Fields, Jefferson Lankford, Philip Hall, and Jon Thompson, represented by retired judge Colin Campbell, reported in the Arizona Republic, March 8, 2012, front page Valley & State section. 5. The Treaty of Paris was signed in 1783 and ratified in 1784. The British did not recognize America. Parliament and the Crown (and the former colonists) recognized the birth of thirteen new nations on the North American continent. An important fact often overlooked by modern historians. 6. There may be some truth to the old joke that appointed lawyers are failures twice over: First because they failed practice, and then again when they ran for office and failed to get elected, thus causing them to kiss up to successful politicians who would appoint them to the bench. 7. This is not a joke. I know personally of one such case.

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8. Payment, though important, is not essential to fundamentally reforming the system because it is an administrative item to be worked out later. 9. Yes, 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. This is not true in smaller firms, wherein we find the majority of lawyers. 10. The National Center for State Courts, January 1, 2011, issued a report showing Arizona judges get about $155,000.00 per year salary. 11. According to the Pima County website, March 18, 2012, the perks available are, for example: Medical Insurance, Dental Insurance, Life Insurance, Vacation (lots of it), sick leave, paid holidays (more than in private practice), State Retirement System and Long Term Disability, Short-Term Disability, Employee Assistance Program, Deferred Compensation, Subsidized Bus Pass Program, and Savings Bonds. 12. According to an Arizona Republic Investigation, published November 10, 2010, in eight parts, elected officials, including judges, 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, before any cost-of-living adjustments kick in. The article states Maricopa County Judge Norm Davis believes the system is fair for judges, who could earn far more in the private sector as lawyers. Could they really? According to salary.com, the median salary (not sole or small firm practitioner) for a Phoenix attorney (highest in the state) was $84,023. The salary of a judge? $155,000. This does not include perks. Which leaves us with the question: Was Judge Davis out of touch with reality? Read more: http://www.azcentral.com/news/articles/arizona-pension-funds-elected.html and www.salary.com. When one adds the salary and the perks, my guess is most judges never made that much in private practice and had little hope of netting such a largess. 13. In true form, the Superior Court judges are now lobbying to have the retention ballot every eight years instead of every six, as it is now. See Arizona Senate Concurrent Resolution 1001. An excellent example of how anyone in power wants to retain that power with the least oversight possible. If I had a choice, it would be all judges sitting by reason of the current system would be every two years. 14. Brownes, Hugh Henry. Should Trial by Jury be Eliminated in Complex Cases? University of New Hampshire School of Law. http://law.unh.edu/risk/vol1/winter/bownes.htm 15. King Henry II, ruled from 1154 to 1189, which is technically the High Middle Ages, but the use of the jury system appears to have stemmed from yet earlier times, even before the Norman Conquest in 1066. Baker, J. H. (2002). An -12-

Introduction to English Legal History (4th ed.). London: Butterworths. pp. 7276. ISBN 0-406-93053-8 16. Magna Carta of 1215. The Document does not use the word jury, but the function is set out. http://www.fordham.edu/halsall/source/magnacarta.html 17. Bownes, Ibid. 18. Tavris, Carol, and Aronson, Elliot. Mistakes were made (but not by me)Why We Justify Foolish Beliefs, Bad Decisions, and Hurtful Acts. New York: Harcourt (Harvest Book), 2007. ISBN 978-0-15-603390-9. Especially Chapter Five, about the legal system. I recommend this book to everyone. 19. This quotation is widely attributed to Mark Twain, but the actual source remains clouded in mystery. 20. The Great Courses, Your Deceptive Mind: A Scientific Guide to Critical Thinking Skills, lecture 4. ISBN 978-1598038286. 21. More than one person who read a draft of this article told me the idea is radical. Radical means a fundamental change. My response was, Youre right. And you will enjoy my article entitled: Police Reform: Can the Cops!

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