We need two things to fix the system: more trials and more specially, qualified trial lawyers.
If we are going to fix our system of justice, civil and criminal, we need to adopt a system like the United Kingdom and have a special class of lawyers, trained beyond law school, and properly prepared to enter the courtroom and try cases. And, they must be dedicated to the jury system.
Then, we must set deadlines for the prosecution of cases. Either get them to trial or dismiss them if they are not gotten to trial.
I was in court the other day and the Judge was dressing down two attorneys who had let their case go three years without getting through the discovery process (investigation and exchange of evidence). The Judge was justifiably frustrated and gave them a deadline. Get it ready to try or I'm going to dismiss it for failure to prosecute, he told them. Great, good for you Judge. But, he waited three years to tell them that. That should be the message from the day the case is filed.
We don't need more rules. We don't need tort reform. In fact, tort reform is the opposite of what we need. It keeps cases away from the jury.
We need anyone who is preparing to enter into the legal system to know they will face a jury in a reasonable amount of time. This will slim down the ranks of cases. Now, defendants in both the civil and criminal realm know that they can count on cases hanging around for years. Thus, the guilty, those who injured people and those who have broken the law, can rely on a system that will let them evade and then bargain for a result.
Let twelve citizens at them instead, I say. Let their peers hear the case and decide what justice ought to be. That is what the Constitution provided. That is the expectation of the jury system. Have a contest to determine who is right and what justice looks like.
The power of that system remains in the hands of the people. It gives the people a chance to decide what justice looks like in their society. It is an amazing and wonderful system that is currently being abused and misused.
The universal complaint is that our court system is bogged down. There are too many cases. That is followed often by the corollary that those cases are mostly frivolous. That assumption is untrue, as are most generalized assumptions, but, there are likely some weak cases out there. And one can always find an example of a case that seems absurd. But, the majority of cases brought have some merit.
The problem is most cases are never tested in front of a jury. The jury system is not working because people are not using it. Instead, they throw paper at each other for a couple of years, jockeying for advantage. When there is no paper left to throw, then they settle the case. They may have a couple of hearings, but no one wants to try the case in front of a jury.
Either they don't trust the very system that in which they agreed to serve, or, they know their case won't pass muster in front of 12 citizens.
I did a stint working for a mid-size firm. I didn't like it very much. I like working directly with clients and other lawyers. But, the lawyers at the firm were fine people, honest and kind to me. They knew the law well. But, for them, litigation did not mean trials, it meant lots of paper, motions, mediations, negotiations, settlement conferences. Bidding the case back and forth.
I was told in no uncertain terms that getting out of my seat to go argue a case was not cost efficient. Everything today is about cost and profit. Law is a business.
Which stinks, because law is not a business. There are books out there that teach you how to run your law practice like a McDonald's franchise. But, it's not. It's supposed to be a noble, time honored service profession, where learned men and women take the time to care about their client's case. If a trial is in order, then a trial should happen. A trial should be the first choice, not the last.
I have had lawyers say to me that if a case goes to trial, you failed. Trials are the last resort, to be avoided at all costs. That idea is exactly backwards.
Trials are the point of a lawsuit. They are the point of a prosecution. Yet, today, most cases, criminal or civil, settle and never see a jury. I'm not talking about half or three quarters, but well over 90 percent of all cases brought - whether civil or criminal - settle. The controversy never sees the light of day. The people never get a voice in the matter.
And that is what a jury trial is all about. The power of a jury trial is in the hands of a jury. We have to have enough faith in our position to hand the decision over to twelve fellow citizens.
Now, here is where we clean out the chaff of the cases - if you don't have the guts to let your fellow citizens see the case, hear the case, review the evidence and decide your controversy, THEN DON'T BRING IT IN THE FIRST PLACE!
If the case is not worthy of the trial, it is not worthy of the courtroom.
Yet, so many cases are settled today that it has become the expectation.
We also need lawyers who can take cases to trial. Most lawyers have little or no experience in front of a jury. That has to change. We need a system in which the dwindling number of experienced trial lawyers out the take the inexperienced under their wing. And the inexperienced might have to second chair a few cases, maybe for a reduced fee or pro bono, to get the experience. We need an organized system to teach them.
Law schools do not prepare you for court. They don't have the lawyers in them teaching that know how to go to court. This is not a criticism of law school - it is necessary to the practice that lawyers become well trained in their knowledge of the law - you can't be a trial lawyer if you don't know the law and the rules.
But that is just step number one. Next, you have to learn how to prepare a case for trial and how to try it. And, you have to believe in the system. You have to have faith in the jury. Have faith in your case. You have to trust people to care and to think. You have to let them properly exercise the power given to them by the Constitution.
If you can let go of your case, hand it over to twelve people, well that's when the magic happens. If you've done your job as a trial attorney and communicated your client's story well, you can feel safe in the hands of a jury.
But, this is the artistic part of practicing law. This is where we discover ourselves, where we learn to connect with others. At the trial, when we are vulnerable and open and willing to ask our neighbors for help - we will find it. There is a connection we all can feel. A spirit of justice that we can tap into.
And, when we do, we connect with each other on a guttural, primal level - the way our ancestors did around the fire, knitting together their lives with one another - trusting one another.
That, in the end, is what a jury trial is about. Believing in your case, communicating your case, and then trusting your neighbor to decide fairly - to give you justice. That's all you can ever ask for. And a good trial, conducted by an experienced and skilled trial attorney, is the only place in America that you will find it.
Attorney Robert Vogel is a available to represent people in both civil, plaintiff cases and criminal defense matters. He represents individuals who are being oppressed by the government or corporations. Contact him via email at
rlvogel@robertvogellaw.com or call 865-357-1949 for a free consultation.
Visit his website at
www.robertvogellaw.com
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