Justice for All

Stephen H. Unger
March 18, 2014

A trial today is basically a duel between two attorneys. Evidence bearing on the question of guilt, or, in civil cases, of legal responsibility, does play a significant role in determining the outcome, but it is often not the decisive factor. The relative eloquence and skills of the attorneys, and the resources they can bring to bear on such matters as gathering evidence, finding and coaching witnesses, researching the law, and consulting experts are of paramount importance in determining the verdict. It is obvious that wealthy people have an enormous advantage, since they can afford to hire the best lawyers, and pay for whatever else is needed for the best possible presentation of their case.

In criminal cases, poor people are usually represented by overworked, often inexperienced, public defenders. (In exceptional situations, very able attorneys take on cases on a pro bono basis, or are assigned to cases by a judge.) In civil cases the situation is even worse for poor people, as they must pay for legal representation. If they are plaintiffs, and big money is involved, they might be able to find a lawyer willing to work on a contingency basis, i.e., for a percentage of whatever they win. But this is generally possible only when the potential award is very high. Another possibility is a class action suit in which a large group of plaintiffs act together. But, in most situations, they are not able to use the courts to redress legitimate grievances. Middle class people are somewhat better off, but not by much; good lawyers are expensive. In a case where an ordinary (non-rich) person has a grievance, regardless of how well justified, against even a moderate size corporation, the probability of prevailing in a civil law suit, while not zero, is minuscule. Let's consider how our justice system might be made more just, starting with criminal cases.

Criminal cases

An interesting indication of the inequality of our criminal justice system is that it is almost unheard of for a wealthy person to be convicted of murder [1][2]. On the other hand, there are many cases where non-affluent people have been wrongly convicted of capital crimes. (These often come to light as a result of belated DNA tests. [3])

A root cause of many problems of our judicial system is that the process of establishing guilt is treated as a competitive game. While I very much enjoy competitive games, I don't think it is appropriate to play games with life and liberty. Consider the following approach to making the criminal justice system less of a subject for the sports pages.

Replace the local district attorney's office, and the public defender's office, with a justice office, whose function, rather than to prosecute or defend accused persons, is to present to juries evidence and theories supporting both the guilt and innocence of the defendant. This might be done by assigning to each case a small group of attorneys, perhaps three, who would have access to police reports and also have their own investigators.

If the accused person admits guilt, the task of the justice attorneys would be the assembly and organized presentation of evidence and theories to determine the most appropriate punishment. Their findings would then be presented to a judge who would, as at present, decide on the sentence.

If the accused denies guilt, the attorneys would, as in the previous situation, assemble all the available information, seeking more, as appropriate. If, after they have all studied the information and discussed it amongst themselves, any of them are convinced that there is at least reasonable doubt about guilt, the case would be dismissed. If they all believe that guilt can be proved beyond reasonable doubt, they would assemble the evidence bolstering that belief, but also clearly indicating the weak points of the case for guilt.

A trial would then be held, with the attorney team charged with the task of presenting to a jury, not only evidence for guilt, but also the weaknesses of the case. The attorneys would share amongst themselves the tasks of presenting the arguments on both sides. An additional justice office lawyer would be assigned to the jury to help them by supplying information, and trying to answer their questions. Jurors should be encouraged to ask questions during the trial, in an orderly manner.

It is important that the job of the justice office attorneys would not be to convict people of crimes, but rather to ensure that justice is done. Their job performance should be evaluated, not on how many guilty verdicts they obtain, but rather on the extent to which they help achieve just verdicts. This is more difficult to judge, but not more so than evaluating the job performance of other professionals, such as accountants or engineers.

At present, in most jurisdictions, criminal trials are preceded by grand jury indictments. This step might be omitted if the above described justice office procedures work well.

Civil law suits

Ordinary people may have a need to file civil law suits in such matters as automobile accidents, home leases, marital matters including divorce, liability for defective merchandise, medical malpractice, breach of contract. Where the potential judgment is large (say more than $200,000), a lawyer might take the case on a contingency basis, perhaps for 40% of the winnings. But, in most cases, such an arrangement cannot be made. A great many legitimate grievances are not adjudicated because the potential plaintiffs can't afford an attorney. A non-wealthy defendant in a civil law suit may have to rely on legal services provided by a local legal aid society. So, as in criminal cases, the price of justice is often beyond the means of the great majority of people.

The solution proposed above for criminal cases is not feasible for civil cases because it is easy to see that it could be abused by people filing frivolous, perhaps fraudulent, claims. We need to embed in the system a mechanism to deter misuse. One possible approach is to have a procedure that penalizes plaintiffs whose cases are deemed totally without merit. This actually does happen today. A NY Times story, appearing while I was drafting this section, describes a recent case in which a man suing for damages, not only lost the case, but, because the judge felt his case was not legitimate, he was required to pay a substantial amount to compensate for the costs incurred by the defendant (The City of NY) [4].

The first step might be to consult a justice office attorney to get advice about whether there is a reasonable chance to prevail in a law suit. A modest fee, commensurate with the plaintiff's financial status, would be charged for this service. If the decision is made to go ahead, then, as in the criminal case situation, a small committee of justice office lawyers is formed to handle the matter. The procedure would be similar to that for criminal cases, with some added features.

If the case has ramifications beyond the interests of the immediate plaintiff, e.g., if the case is about some defective product, the investigation would be more extensive, and perhaps other plaintiffs would be sought. At any point, the lawyers might advise the plaintiff to drop the matter because they don't believe the complaint is valid. If the case is continued, the potential defendant is contacted and invited to respond.

The lawyers might work with the contending parties to find a mutually agreeable settlement, obviating the need for a trial; i.e., the lawyers might act as mediators. If no agreement can be reached, then, as in criminal cases, the attorneys work together to prepare arguments for a jury. They try to present the best arguments for both sides. calling in expert witnesses as appropriate.

If the verdict is in favor of the plaintiff, then the justice lawyers, the judge, and the jury work together to specify the award to the plaintiff.

If the jury returns a verdict rejecting the plaintiff's claims, the judge and the attorneys then discuss the question as to whether the case was unreasonable to the extent that the plaintiff should be penalized for irresponsible abuse of process. If so, then they put the question to the jury, perhaps suggesting what would be an appropriate penalty to deter such behavior, to compensate the defendant, and perhaps to offset expenses incurred by the justice office. There should be a process for adjusting such penalties to take into account the financial status of the plaintiff. The assumption here is that the roles of judges and juries would be essentially the same as they are now.

Some Problems

At present, lawyers specializing in litigation serve strictly as champions for one side of a civil dispute, or for the state or defendant in a criminal case. Under the proposed system, they would serve a very different function. They would have the more demanding responsibility of working, in small teams, to make clear to a jury the arguments on both sides of the issues before them.

Many litigators would probably be unhappy about the idea of such a change, and a large proportion of those currently in private practice might object to the less lucrative role of public servant. This would certainly be a difficult reform to get thru, bearing in mind that many legislators are lawyers.

Under the proposed system, people charged with crimes would not have their own attorneys to speak for them. This may appear to be a serious downside. But, in practice, it would affect only a small portion of defendants: those who can afford to pay expensive lawyers. The same is true for people involved in civil law suits. In effect, the proposed change would level the playing field for all who get involved with the legal system. This presumes that the proposed justice office would be operated in an honest, impartial manner.

How might such a system be initiated? Perhaps the best strategy would be to try it out in a few small states, such as Vermont, or Wyoming, beginning with criminal cases. If successful, it would be easier to get it adopted in another state, etc. At some point the experiment might be extended to civil cases. Traffic court, and/or family court in a few states might be another way to ease into this change. Additional categories of cases could then be added to the mix.


[1] Ralph Blumenthal, "A Man Who Knew About the Electric Chair", Judiciary of the United States Senate, NY Times, November 6, 2011

[2] Stephen H. Unger, "Is the Death Penalty a Necessary Evil", Ends and Means, January 5, 2012

[3] , "DNA Exonerations Nationwide", Feb. 6, 2014

[4] Michael Schwirtz, "Plaintiff in Police Lawsuit Is Ordered to Pay New York City's Legal Fees", NY Times, March 8, 2014

Comments are welcomed and can be sent to me at unger(at)cs(dot)columbia(dot)edu

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