Routing the two-tier system: Part V: Justice and injustice

The emphasis in our legal system should be shifted away from which party won to whether the outcome is fair and just.

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The two-tier system does not just exist in connection with our economic system.  Despite our lauded Bill of Rights, our justice system is also a two-tier or multi-tiered system.  This is true both in the civil and criminal law systems. Ask any lawyer and he or she will tell you that (if he or she is being honest).  Despite public defenders and pro bono attorneys, the system is rigged in favor of those with money.

The central problem with our justice system is that it is competitive.  The decisions are made by judges, and judges are only human, after all. The judges are supposed to be impartial, listen dispassionately to what the attorneys for each side present and argue, and then make a rational decision.  But the reality is that judges are selected from the community of attorneys, and therefore their decisions are influenced by what they know of the attorneys who appear before them. Also, they are influenced in many cases by the status of the parties appearing before them.

Let’s face it: it takes money to buy good legal representation.  A cheap lawyer is generally an overworked lawyer, or a lawyer who is a victim of alcoholism.  (Approximately 36% of all lawyers have drinking problems. Doctors, too, have alcohol and drug abuse issues, but lawyers are worse offenders. And judges are also struck by this disease.

One solution to this might be to have each party appear before the judge and reveal how much it is able to pay for representation.  The judge will then divide the total amount between the parties so that neither will have a financial advantage.

Another possibility would be to modify the roles of the attorneys.  While one attorney would present the plaintiff’s position and another the defendant’s, both attorneys would join with the judge in attempting to resolve the case, much like an arbitration.  What each attorney received in compensation would not depend on which party he represented nor the outcome of the case. The facts and result would be written out, and a fourth person would read the decision and decide whether it was rational and appeared correct.  (and not tainted by alcoholism, for example). Neither the judge nor the two attorneys would be identified in the judgment, so the decision of the fourth person would be totally neutral. The written decision and the review decision by the fourth person would be made public, and the public could express its opinion about the case and the outcome.

Either party could appeal within 60 days, and of course the parties could still settle their controversy at any time. The opinion of the public commentators would be taken into account by appeal judges, and the parties could file appellate briefs as well.   The process would be open and transparent.

The emphasis in our legal system should be shifted away from which party won to whether the outcome is fair and just.  The roles od the attorneys and the judges should be to find compromises and fair outcomes. Hopefully, this approach would drag us away from one emphasizing the amount of money which each one has.  When it was established, our justice system didn’t have these problems, because the people (men, almost exclusively) who were the parties were similar. But over time, it has changed, and we need to rethink how it should operate.

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