Judge Reform

Eliminate Judge Conflict of Interest

Created by a judge being a lawyer

In the trial by a jury of our peers that is guaranteed by the U. S. Constitution the judge is a lawyer, a lawyer represents the plaintiff and a lawyer defends the defendant. Those who see things from the perspective of a lawyer and have a lawyer’s training, make all critical communications in the courtroom run by a judge. It is a lawyer’s world. So any biases lawyers have no matter whether self-serving or not will show up in a court's final result.

This lawyer bias is particularly important with regard to the behavior of a judge. A judge often awards attorney’s fees in the cases they hear. Their standard for the amount awarded is never what a person with equal education and training makes—but what a lawyer makes. Which of course then serves as a basis for what a lawyer should make on the next case. And if the judge should decide—or the voters should decide—that the judge himself should go back to private practice than the judge has assured himself that the rate he will receive for his services as a lawyer and a former judge will remain a good one.

And today virtually all judges are lawyers. Even though they do not need to be . . .

The U. S. Constitution has only one statement on the matter in Article. III. Section 1.:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

This has caused one wag to suggest that to obtain fairer courts Congress simply eliminate the inferior courts and start over. Of course this presumes that Congress with its many lawyers would have this inclination!

Created by a judge accepting contributions from lawyers and law firms.

Justice in Texas at least has been considered to be for sale for many years. The 60 minutes segment in the late 1980s catalogued this. And more recently statistics at least at the State Supreme Court level have shown that little has changed. At least regarding access. A state Supreme Court is almost four times more likely to hear a donor’s case than a non-contributor.

Under the Judicial Campaign Fairness Act passed by the Texas legislature in 1995 individual lawyers may contribute $5,000 and law firms may contribute $30,000 to a judge’s campaign. Records of these contributions are available to the public. But obtaining the information is not easy. One individual described the process of trying to get a few years of contribution records for five Harris County (Houston) candidates as involving 40 microfiche cartridges, the expense of copying 710 pages and four to five hours of his time.

This need not be. Winston Churchill said that sunshine is the best disinfectant. And the best sunshine here would be a requirement that all contributions to any judge be posted on the Internet daily. Additional sunshine would require that each petition filed by a lawyer include a last page which disclosed that lawyer or law firm’s contributions for the year to each and every judge in the county in which it is filed. An identical requirement could be made on the party responding to the suit. This information could then be provided to the jury which could make up its own mind as to whether the judge was behaving with a conflict of interest or not. Or whether further judicial reform would be required.

One wag provides another solution. They argue since judges are required to recuse themselves from cases in which they have some financial or personal interest why should they not be required to recuse themselves from cases in which they would always be deemed to have a financial interest—those cases filed by lawyers in their court who have contributed to their campaign!

Created by personal relationships of a judge

Since the fairness and impartiality of a judge should be without question, it would be helpful to the public in this regard for a judge to publish on the Internet all social or other groups that he and lawyers were jointly members of. The list of course should include the state and national Bar Associations of which they would both always be members of as well as any others.

One might be aware that when many individuals obtain employment with a corporation they sign non-compete agreements agreeing not to work for a competitor for a period of years. In the same vein judges who are employed by the public should also sign a non-compete agreement. They should agree not to be employed by law firms of a certain size for a period of five years. This is necessary because if judges tailor their opinions to satisfy future employers they are not giving their present employer—the public—their moneys worth. They are compromising their good judgment for the sake of future employment. The public deserves better.

And . . . if a judge was not always a lawyer all would be different

Judges would then be more likely to make judgments of common sense right or wrong rather then on the basis of some arcane technical point of which only lawyer/judges are capable of making.

Case law would evolve toward being written in standard English rather than in the legalese which is presently used and which often of necessity requires one to employ a lawyer to decipher. More people could handle their own cases.

Courts could then be organized by specialty with persons trained maybe in conflict resolution and having experience in a particular field to be allowed to be a judge in that field. Engineers could handle cases involving engineering questions. Health care workers could handle cases involving health care. Psychologists and social workers could handle cases involving divorce and child custody. Accountants could handle cases involving taxes.

This situation is not as far-fetched as it seems. Chief Justice Thurgood Marshall, a liberal who did not have a law degree, was considered by many to be among our greatest jurists. With no law degree he took a six-week course of study to prepare himself for the job.

Like Thurgood Marshall non lawyer judges could learn the necessary procedures in short order and become experts in the law of their specialty. And then apply the law to the facts on which they would then be in the best position to interpret. An additional benefit is that they would be more likely motivated to be fair as they would not want to harm the profession in which they had spent their lives promoting and which would have a constituency other than that of lawyers. This is in contrast to our present system where a judge with no specialty training other than the law finds it impossible to be knowledgeable on everything and so in many cases even if well meaning does not apply the law correctly to the situation.

. . . in Houston where the position of Justice of the Peace does not require one to be a lawyer recently had Russell Ridgeway an engineer vying against Mark Goldberg a lawyer in the Republican primary for that position.

Ridgeway made his arguments:

“Why do you want to have an attorney representing as a judge when most of the people in front of the court aren’t?” “Why try to formalize parts of the court to make it intimidating to the people who are there?”
He says he is using his experience as an energy consultant in the private sector to bring business principles to the court operation.

Ridgeway won.

Houston Chronicle 2-29-04 p13H

But if you really want to see a judge’s conflict of interest in sharp focus— where he sees himself as a lawyer first and a judge second—observe a case, any case, where one of the parties represents himself—a so called pro se.

The pro se is never allowed to win no matter how right he is on the law and the facts, because the lawyers and the judge who is a lawyer who is in control of the courtroom take it as a personal insult that someone who is not a lawyer could possibly be able to convince a jury of the rightness of their cause. Even though that someone might be a PhD microbiologist who in a case involving microbes would probably be more knowledgeable than anyone in the courtroom.

What a judge reveals though is his true fear. That is that if the public becomes convinced that at the very least most people with a college degree could handle their own legal work, it might be the end of their cartel. It would demonstrate that lawyers are superfluous. Than everything the judges had invested their lives in would be at risk. And then they might have no option but to work in a competitive market like everyone else.

Eliminate judge's conflicts of interest.
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