Legal Ethics and Reform

The judicial process has two great checks to correct errors and curb abuses of trial court judges. The first is the jury which serves as the "trier of fact" in cases where one of the parties to a civil or criminal action requests a jury. The second is appellate review where the rulings of the trial court judge are subject to review and possible reversal..

When a jury verdict is issued on a case, the judges, both at trial and during Appellate review, limit their activities to interpreting the applicable law and leave fact finding to the jury. When no jury is involved, the judges at trial and during Appellate review make both findings of fact and draw conclusions of law. This means that in judge tried case, also known as a "bench trial", the appellate courts can review both the facts and the law.

The appellate review process is made more rigorous by the general requirement that an appellate court that reviews the actions of a trial court is bound to issue a written opinion which carefully reviews the important facts and applicable legal principles. Then it explain how the law should be applied to the facts at hand. These opinions are generally published and serve as guide posts for future litigants. This is the process by which the common law, constitutional law, and statutory interpretation have developed over the centuries.

The process of writing of an opinion serves as a check on the appellate court judges who might be lazy, or, somewhat more serious, inclined for friendship sake to favor one litigate over another, or, even more serious, fearful of certain litigates or their lawyers hurting a judge's chance for re-election, or, most serious, willing to take bribes. The reason the written opinion serves as a check is quite simple. Each opinion is going to be read and analyzed very carefully for years and years to come and the judge's reputation in legal circles will be injured by a poorly reasoned or flawed opinion. Additionally, appellate court opinions are subject to review by State Supreme Courts and/or US Supreme Court depending upon where the trial was originally held. Poorly drafted opinions or opinions that conflict with well established legal principles are usually overturned by a Supreme Court

However, with the recent increase in the number of lawsuits and because of the "win at any cost" attitude of many litigators, the appeals courts have seen a huge increase in the number of appeals filed. They have responded by separating cases into two groups - those that get written opinions and those that don't. This change has made life more livable for the appeals court judges who face this flood of cases, but it reopens the door to the abuses mentioned above.

Today difficult cases that truly deserve consideration by the appeals court can now be pushed into the "no opinion" category and thus ignored. The appellate court issues a one sentence opinion "we see nothing wrong with the trial court's handling of the matter". The "hot potato" case is thus "dealt with". The judges on the Appellate court have acted reasonably and there is no flawed opinion to invite Supreme Court review.

Since judges are lawyers first and judges second, the most obvious examples of potentially difficult cases are cases where a lawyer is a party particularly the defendant, and cases where a party to the case is a pro se litigant, (i.e. a litigant who has chosen to pursue his case without the involvement or expense of a lawyer). A second potentially difficult group of cases are cases where no jury verdict was issued, that is cases where the entire matter was handled by the trial judge, that is cases were a jury was not involved to act as a check on the trial judge. Of course, any case can be a "hot potato case" for an appellate court depending upon the relative influence and prestige enjoyed by the lawyers representing the parties and/or the parties themselves. The heat from a "hot potato" case is heightened in jurisdictions where judges do not enjoy life tenure. Judges that have to run for re-election, or who have to stand for retention, are necessarily tempted to handle certain lawyers and litigants with deference.

The solutions to these problems are varied and numerous. Here are three possibilities:

1) Capacity increases are the most obvious. Many states have increased the capacity of their prisons and have seen a decline in their crime rates as wrongdoers actually serve their full sentences behind bars. In like fashion, an increase in the capacity of appellate courts would allow the reinstatement of the old requirement that all cases get written opinions. This solution creates the related problem of generating many more appellate opinions to publish, to analyze, and to preserve for later generations to read.

2) A narrower solution would be to require written opinions in all cases where no jury verdict was issued, or where a lawyer was a party to the case, or where a pro se litigate was a party to the case. This rule could be implemented without increasing the capacity of the appellate courts.

3) The understandable bias of judges toward lawyers and against pro se litigants could be muted by requiring that one third of all appellate court positions be reserved for non lawyers. This is a very controversial proposal because it reduces the number of high paid, high prestige positions available exclusively for lawyers. However, since appellate courts always operate in panels of at least three judges, the lack of formal legal training on the part of the non lawyer/judges could be off set by the presence of two lawyer/judges on each appellate panel.