The point to remember is that what the government gives it must first take away. ~John S. Coleman, address, Detroit Chamber of Commerce, 1956
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The idea that judges should be lawyers is deeply ingrained in American culture. Indeed, the law requires it in many parts of the country. But this approach to selecting our judicial officers is both preposterous and dangerous.
Law School: No Place to Grow Judges
Most lawyers do not have the knowledge and skills needed to handle the issues passing through our courts. To understand why, spend a few days at a law school, where future lawyers learn to solve problems by applying a formalistic, logic-chopping analysis to a mish-mash of old court cases, following an educational model that has changed remarkably little since World War I.
By claiming that correct decisions can be made by applying age-old rules without necessarily understanding the technical basis of the facts in a dispute, this method closes rather than opens the mind. For example, future judges are trained to feel comfortable deciding a case involving the claimed theft of a process to increase the output of a power plant without understanding how a steam turbine works.
No Schools for Judges
But surely lawyers receive additional training when they become judges? Don't count on it. Except for a few brief cram courses after they are appointed to the bench -- most often as a reward for political loyalty, rather than demonstrated competence -- new judges are on their own. More bluntly, if your average veterinarian was as poorly trained as your average judge, you wouldn't let Bowser within 100 feet of him.
Against this background, it hardly seems a radical notion that many non-lawyers might make better judges than do our current crop of lawyers. Technical subjects such as patents, copyrights, trade secrets and medical malpractice, in which most lawyers are hopelessly illiterate, offer obvious examples of legal areas where a non-lawyer with an understanding of the underlying technology would be likely to make better decisions.
But instead of stacking the deck against lawyers by picking an area where specialized knowledge is at a premium, consider one of the most common concerns -- family law. Immensely important decisions involving the custody, visitation and support of children are made every day against a background of enormous interpersonal stress. Most new judges have no experience with family law, since comparatively few have practiced in this area. Moreover, in most American law schools, zero time is spent on the personal and family dynamics of divorce; the one or at most two family law courses most law students do take focus on who gets the money and property. Even that information is badly out-of-date long before a law school grad is appointed to the bench.
Furthermore, few family law judges get the benefit of on-the-job training. Precisely because family court is a high-stress, emotion-filled environment that they are not trained to handle, most judges try to move on -- or rotate -- to other types of cases as soon as possible. The result is there is no continuity in an area that cries out for it.
Understanding this unique opportunity to shop for a more agreeable judge, lawyers with deep-pocket clients often bring the same custody and visitation cases back into court again and again. Sooner or later, a new judge with no personal knowledge of what happened before may make a different decision.
Breaking the Stranglehold
There is an even more fundamental reason to break the legal profession's stranglehold over our courts. Given our tripartite system of government in which the judicial branch can nullify the acts of the others, allowing the legal profession to enjoy almost absolute power over our courts invites the arrogance and greed we currently experience.
The unhappy result is on daily display in America's courthouses, where few forms, instructions or other consumer-friendly information is available to help consumers accomplish even the simplest legal tasks. Most judges shamelessly shill for their lawyer buddies by telling confused propers to see an attorney if they ask for any information beyond the location of the bathroom.
No Place to Go
Even worse, having lawyers as judges severely hampers citizens' rights to purchase basic affordable legal services from competent non-lawyers -- often called legal technicians or independent paralegals. As more consumers understand that lawyers are wildly unaffordable and patronize these reasonably priced non-lawyer services, practicing lawyers -- instead of lowering fees and improving service -- appeal to their black-robed brethren to stamp out all non- lawyer competitors. Most judges respond in one of two ways. Some dust off and enforce unauthorized practice of law statutes passed by lawyer-dominated legislatures in the 1930s. Others resurrect a centuries-old legal doctrine known as "inherent powers," which claims that only the judicial branch can regulate law-related transactions, in or out of court.
The result is that many non-lawyer form preparers are jailed and fined by lawyer-judges (the fact that they wear a black dress and sit on a wooden throne changes nothing), solely because they compete with other lawyers. Even worse, in the scurry to put non-lawyers out of business, judges rarely examine the quality of their work. So, for example, even if a non-lawyer does a better job typing a divorce for $100 than a lawyer does for $1,000, the non-lawyer is likely to go to jail while the lawyer goes to lunch with the judge.
A Better Way
The solution is simple: Do away with the requirement that judges must be lawyers. Instead, open up the occupation to all adults who can demonstrate an appropriate level of competence. Appropriate standards of education and work experience should be based on the subject matter to be judged, not some poorly formulated idea that lawyers always know best. For example, as an alternative to requiring a law degree, judges in our family courts should be trained in the social sciences, with a concentration on how post-divorce families can best work to raise healthy children. Learning mediation skills -- taught in only a few law schools -- and studying the economic problems created by divorce would also be of great value. This would likely produce career non-lawyer judges trained to defuse tensions and help families arrive at consensual solutions.
Supplement this with a six-month intensive course on domestic relations law before allowing judges to pick up the gavel, and there is no doubt that they would have a better grasp of handling cases than do our poorly trained lawyers.
Finally, because non-lawyer judges would not be part of the local lawyer-buddy network, this new breed of judges would be much more likely to crack down on two big areas of current abuse: overcharging lawyers and judicial hostility to propers. Both of these stains on American jurisprudence are damaging the credibility of our courts and should be reason enough to end the lawyer monopoly.
Montana Judges Hog-Tie Non-Lawyers
An independent paralegal based in Kalispell, Montana, recently attempted to represent a physically handicapped man who couldn't afford a lawyer. Jerry O'Neil relied on an 1871 Montana statute (MCA section 25-31-61) that allows a party to a justice court action to be represented by anyone.
But O'Neil's pleadings were drowned out by the sound of the state supreme court backpedaling.
First, the Montana Supreme Court ruled that, despite the clear language of the statute, "any person . . . may act as attorney," it was a "one time only grant of privilege" for a non-lawyer to appear. In other words, the court barred non- lawyers from establishing a business to compete with lawyers.
Not satisfied with interpreting the statute to mean the opposite of its plain language, the supreme court recently decided to eliminate it by judicial fiat. This has taken the form of a proposed rule of court, Rule 13, which does away with the clear statutory right of non-lawyers to represent people in justice court.
In response to this grab of power, O'Neil and a group of non-lawyer activists proposed legislation that would allow non-lawyers to serve as judges in Montana and give non-attorneys majority status on the State Judicial Standards Commission. Both bills died in the spring 1993 session, but are likely to be reintroduced in the future.
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