Monday, August 19, 2013

Goal-oriented decision making threatens our legal system.

The law is always changing.  Usually change is good and to be expected.  Much of our law is made in the way individual cases are decided by appellate judges and applied by trial judges.  Those decisions become the basis upon which subsequent cases are decided.  In my over 25 years reading case decisions, I've seen a change in how those decisions are made, and it isn't good.

Historically - for the hundreds of years we've been using the English common law system - judges adhering to time-tested legal principles would apply them to the facts and arrive at a decision.  That seems to be changing.  Too many cases are being decided backwards.  More and more judges seemingly arrive at a decision first, and then look for supporting principles to justify the decision.  This new goal-oriented decision making process is a matter of expedience - politically safe but not legally sound, a crowd-pleaser but dangerously short-sighted.  Because so much is based on precedence (i.e. previously decided cases), any weakness in the foundation threatens the whole legal system.

The continuing assault on the Bill of Rights' 4th Amendment is one of the more striking examples.  Goaded on by the devastating War on Drugs, too many judges (politically driven, or with social agendas, or merely concerned about not rocking the boat) have twisted the plain language of that historic privacy-based provision to gut its protections.  Other examples are in family law with its emphasis on (perceived) wealth shifting at any cost, in criminal law with its emphasis on facilitating convictions for marginal behavior and watering down criminal intent requirements, in personal injury law curbing the procedural rights of one side or the other, in civil rights law empowering corporations over individuals (or vice versa depending on your perspective).  A more general example, especially at the trial court level, is the increasingly lax and selective application (if at all) of long-standing rules of evidence (which determine what facts and arguments can be considered).

Too many written (and binding) appellate decisions these days begin with pages of lip service to the time tested legal principles the rest of the decision trashes in the writer's haste to reach the goal.  True justice becomes fleeting, unpredictable, inconsistent, random - in a word, an accident.

True justice is blind; it doesn't look to see what the outcome should be - based for example on who is involved, what is at stake, or someone's political agenda or social goals.  Take the blindfold off Lady Liberty and justice stands to become dangerously subjective.  Let legal decisions follow the careful application of sound principles and experienced reasoning and they will stand the test of time.

Wednesday, August 7, 2013

Trials and Appeals.

     Trials and appeals are where rubber meets road in the legal profession.  Although most cases settle or plea bargain before either (and sometimes during), the mere prospect of trial and appeal leads to such resolution.  That is because most people and businesses are risk averse, and avoid the uncertainty of leaving decisions and outcomes in the hands of trial judges, jurors, and appellate judges.  Also, litigating matters through trial and appeal is time-consuming and expensive for everyone involved.

     The outcome of most any trial can be appealed at least once.  The rate of reversal or similar is about 25% in state cases, and just over 10% in federal cases.  Fewer cases end up at the highest appellate courts, like the U.S. Supreme court at the federal level for example.  Mainly this is because those appeals are discretionary, meaning the appellate judges themselves decide whether to accept the appeal.  The likelihood of this is less than 10% (although once accepted, the reversal etc. rate approaches 50%).

     Many appellate decisions - the written opinion disposing of the matter usually authored by one appellate judge on behalf of a panel of three or more - are published and become precedent for future cases.  Transactional lawyers, regulatory lawyers and other non-litigators typically do not try or appeal cases, but they are guided by those precedents.

     Though risky business, trials and appeals are crucial to the effective and ultimately efficient operation of the entire legal system.