Judicial Reform: Junk Judges and Juries!

By Richard W. Morris
2016 Richard W. Morris

Synopsis: Discussions and grousing of judicial reform tinker with the two current
methods of selecting judges (election or appointment). This article
does not attempt to repair the leaky rusting hulk of a judicial system
moored by a frayed and rotting rope to an antiquated anchor seated
beneath the sands of the Early Middle Ages, but offers an entirely new
concept of judicial selection and conflict resolution.

*****

Nobody, but nobody, to date has proposed a real reform of the court system.
This article does. The purpose here is to present an idea of true reform as distinct
from the history of patchwork reform to a system of inherently poor architecture.

What is judicial reform? Lets get our definitions straight from the beginning:
The complete or partial change of the judicial system. Reform, in this context,
means a fundamental change. An old saying goes: if you always do what you always
did, youll always get what you always got. The State Bar of Arizona former
president, Joseph Kanefield, fell into this trap when he argued for more funding for
the current justice system1 so we could continue to get what we always got. Maybe
funding is not the answer.

The first reform attempts were in 1922 when Chief Justice William Howard
Taft proposed at-large judges to be assigned to congested courts. The already
anointed federal judges, professors of law (both part of the Political Class) and
wannabe lifetime appointees supported him because they hoped this would deflect
the efforts of neer-do-wells who advocated an end to life tenure on the federal
bench and more jurisdictional restriction of the lower federal courts.

If we have learned nothing else as adults, it should be the truth of Lord Actons
edict: Power Tends to Corrupt and Absolute Power Corrupts Absolutely.2 Those in
power universally seek to increase the scope of their authority and deliver a
message to the little people about how powerless they are against the awesomeness
of the anointed, which includes judges.

The problem is not an occasional bad judge. The problem is systemic which
causes even good judges to make bad decisions. What must be changed is the
system.

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 One of the hottest debates in judicial politics today is whether judges should be
elected or appointed. Either way, once in office those anointed are part of the
Political Class, and separated from the citizenry.

In Arizona, as to the Superior Court, we have both an appointed and elected

judiciary, depending upon the county, and all Justice Court judges are elected. To
ask whether judges should be appointed or elected is to commit the Fallacy of the
False Alternative. There are other, better, methods to select judges and settle
disputes.

The current system has spawned not only the typical problems of litigants
feeling victimized by the courts, wrongful criminal convictions, professional
allegiances favoring outcomes, cognitive dissonance trumping truth,3 arrogant
judges not treating counsel, litigants or witnesses with courtesy, congested
calendars with associated delays, judges4 suing the state to keep their comfy
pensions, and a strained state budget. We now live with a judicial system that fails
not only those forced to participate, but society at large because it is too
cumbersome and expensive for the average person to have his day in court.

At the founding of the United States, the thirteen independent countries5 each
adopted the Common Law and the accompanying judicial system. At the time, King
George appointed judges at his pleasure. Offend the king, lose your job or your
head. The founders of the United States thought of a new and improved plan:
appointing a judge for life, with the hope of making the judge independent. Nice try,
but a couple of centuries show this scheme also fails.

Judges are political, whether appointed or elected. Far too many judges went to
law school, got hired by some government job (or large law firm whose clientele
involved government in one manner or another), and moved to the bench. To get
appointed,6 they had to curry favor with the right people. If elected, they had to
mount a publicity campaign in the judicial district to gain name recognition.

There has never been a real reform in the history of the United States or in any
other country of which I am aware. This article does not attempt to repair the
rusting hulk of a judicial system moored by a frayed and rotting rope to an
antiquated anchor seated deep beneath the sands of the Early Middle Ages, but
offers an entirely new concept of conflict resolution.

Suppose judges are selected other than by appointment or election, and judging
is not necessarily their full time job. Such a process eliminates objections associated
with either of the current systems. If there are no permanent judges, then we also
eliminate the pensions and all the perks government employees get with their jobs.
This, by itself, will reduce the cost of judicial proceedings.

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 Ah, you ask, how can we do this? The answer is: Fire the judges and abolish
juries.

Trial Judges
We start with a three-judge panel. Each side selects one judicial officer (the
judge), the two select the third who acts as the presiding judge. If one side fails to
select, the court clerk reaches into a computer hat for a randomly generated
individual who is thereby selected for any party refusing to select. If multiple sides
with conflicting interests pop up, we can figure out a way for them to join in the
selection. For the moment, lets keep things simple.

Qualifications to serve as judge: any lawyer licensed for X years, say ten years,
to give the individuals time to experience what the real world is all about.
Additional qualifications might exclude those who did not practice law, such as
professors who came out of law school in June and were assistant professors three
months later, the following September.7

Of those lawyers qualified to serve as judges, only those who would like to do so
would be included on the judicial panel. After all, we dont want to violate the 13th
Amendment with involuntary servitude. Given most lawyers are wannabe judges,
the pool is probably large. For better or worse, people seem to enjoy the power of
telling others what to do or love the title. I think all judges should take (and pass)
courses in recognizing cognitive dissonance in themselves and others, efficient
thinking, and advanced evidence.

How much and who pays the judges? In a criminal case, for reasons I will
address in another article, the state. In civil matters, the state or many alternative
ideas come to mind. For example, each party pays the rate for the judge they select,
and the third judge is paid by both parties at whatever the average of the amount
each of the other two judges is paid.8 Each potential judge sets whatever he or she
wants as a standard billing rate to sit as a judge, which may be lower or higher than
their normal charges.

I say lower for several reasons. Cost is one aspect of justice and litigants must
consider the price of a judge in the selection process. Those who want to be selected
are obliged to be competitively priced.

Observing the situation today, many lawyers volunteer for free to be mediators,
arbitrators or judges pro tempore. The motivations probably run from wanting to do
pro bono work, to gaining experience and a reputation in dispute resolution, not to
mention one more item to list on a resume. This process is already famous for
making the resolution of disputes within the reach of more in our population than
the present judicial system which has become the sport of kings.

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 Few real lawyers bill eight hours a day. Most are lucky to bill four.9 So, the
judicial wannabes will take this into account when setting their fee schedule. When
a particular persons reputation spreads as to the quality of decisions, that
individuals rate goes up or down and this controls how larger cases are decided by
pricier judges and smaller cases by more inexpensive judges.

This plan is cheaper than the current system of salaries,10 perks,11 and
pensions,12 which makes the employment of each judge substantially more than first
appears by a simple look at the posted salary. Arizona has 41 Superior Courts
spread across its 15 counties. Without going county-by-county I cant get a total of
how many Superior Court judges and commissioners are sitting, but I suspect more
than a couple hundred.

The implementation will be gradual. For example, as judges come up for a

retention placement on the ballot13 they could leave the bench, get a job, and
apply to be part of the pool. Current cases would remain on the existing system or
the parties could elect to change to the new and improved procedures. Cases filed
after January 1 would be handled under the new system. Note, this does not change
the law and the courts would still be bound by stare decisis.

The major advantages are:

1. A system which is cheaper to operate;
2. Better court availability because there is, in essence, one court for each
case, not many cases crammed into one court, allowing the court to more deeply
consider the law and the facts in the individual case;
3. More civility among participants where judges treat participants with
greater respect because the judges could be on the opposite end of the legal
proceedings as counsel (or party) at one time or another as well as that pesky item:
the participants are the folks paying them; and
4. Judges are in tune with the real world because they work in it and are not
cloistered in their protected environment.

Jury
The above does not count the cost of juries. Juries are expensive, not only
directly due to administration, but, more importantly, indirectly, because of the
cost to the society at large by reason of snatching productive people from their jobs.

Unless the juror works for a government agency (like the post office, the city, or
some other public-trough), even a short-term trial affects the jurors income. With a
large percentage of Americans living paycheck-to-paycheck (if employed), the
income loss is devastating to the individual, his or her family, and to the employer
who can no longer get the job done for which the person was hired. This civic
responsibility comes at high cost.

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 Beyond the direct and indirect costs, for the administration of dispute
resolution and justice, the issue is more serious. Jurors are placed in the position of
being fact-finders with no education in the subject. A universal rule applies: When
you want a job done right, hire a professional. This holds true from brain surgeons
to landscape workers. If we had a professional jury pool, presumably we would
experience more just decisions. To do this, the pay must be high enough to attract
qualified people rather than the person described in the bromide that nobody
wants their fate decided by a jury so stupid they could not get out of jury duty.
Worse: if they couldnt escape, they are compelled to sit as slaves, which is not
much better in terms of justice.

Rather than argue about what is a good method to select a jury, lets ask a more
basic question: Why a jury in the first place?

In law school, I was taught various hypotheses about the origin of juries
because the origins of the jury system are a mystery.14 Written history shows they
go back at least to the assizes of Henry II,15 as a means of taking the census and
collecting taxes, from which they evolved into doing justice, and the Magna Carta
in 1215 recognizes the concept.16

Back then, hundreds of years ago, the cases were more simple than today. In
fact, jurors were acquainted with the litigants and the dispute. They served to settle
a quarrel between neighbors. Today court cases are more complex and such
knowledge, as Judge Brownes points out, is cause for disqualification.17

While British subjects a thousand years ago did not understand the mental
machinations of cognitive dissonance, confirmation bias and self-justification, they
had experienced an arrogant political class dressed in the elegantly robed-and-
wigged trappings of arbitrary authority and viewed the jury as their best protection
from the governments biased judiciary.

Most lawyers and judges, when asked about the purpose of a jury, respond: To
determine the truth. My, that does have a pleasant ring. However, through
scientific research in various fields of neurology, psychology and memory function,
today we know an eyewitness account is the worst method to learn of the facts
surrounding an event.

Science now knows about the psychological processes of cognitive dissonance,

confirmation bias, self-justification and a host of memory and thinking errors which
operate in the minds of all humans (including judges, lawyers, and jurors), causing
people to receive information and remember differently what facts actually flowed
into their brains, compounding the fact-finding function when they make thinking
errors in processing the information.

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 Psychologists Carol Tavris and Elliot Aronson18 point out everyone has trouble
accepting information that conflicts with a belief we know for sure. Mark Twain
picked this up a hundred years ago when he said: It ain't what you don't know that
gets you into trouble. It's what you know for sure that just ain't so.19

Tavris and Aronson illustrate the brains blind spots which make us unable to
see our own prejudices, biases, corrupting influences, and hypocrisies, and
demonstrate that our memories tell more about what we believe now than what
really happened then. Professor Steven Novella, an academic neurologist, devotes
an entire lecture to the Flaws and Fabrications of Memory in his course Your
Deceptive Mind.20 These are important issues, sometimes literally life and death,
when dealing with witnesses and evidence in a trial.

All of which means, do juries discover the truth? Probably not. Especially when
we give them a preponderance of the evidence instruction as a guide, telling them if
there is one scintilla of weight for one side, then it tips the scale. Scintillas have
varying weights, depending upon the finder of fact.

In conclusion, with a three-judge court, as in France, we do not need a jury. If

we no longer have a government judiciary, then we no longer need the protection of
a jury from that government, and modern cases are too complex for untrained
finders of fact. If we eliminate juries we cut costs, bestow a bounty upon each
citizen as an individual and the society at large.

The Seventh Amendment? Fear not. The Amendment could be repealed or

modified and, if left as is, the litigants could have the choice between the new
system or having a trial the old-fashioned way with the court peopled by cronies
and those too feeble of mind to escape jury duty. I suspect a litigant will choose my
new plan and after it has been shown to be superior for a decade or so, then the
process of amending the Constitution should be perfunctory.

While the civil jury is part of the fabric of our way of life, if we keep doing what
weve always done well keep getting what weve always got. Perhaps it is time to
change the system so we stop getting what we always got and try a new suit.21

1. Kanefield, Joseph, The Price of Democracy, Arizona Attorney, April 2012, at 6.

2. Lord Acton. BrainyQuote.com, Xplore Inc, 2012.

http://www.brainyquote.com/quotes/quotes/l/lordacton109401.html?gclid=CNrwt9f
OsrACFegbQgod1VynTA, accessed June 3, 2012.

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3. Tavris, Carol, and Aronson, Elliot. Mistakes were made (but not by me)Why We
Justify Foolish Beliefs, Bad Decisions, and Hurtful Acts. New York: Harcourt
(Harvest Book), 2007. ISBN 978-0-15-603390-9. See Chapter 5.

4. Retired judges Ken Fields, Jefferson Lankford, Philip Hall, and Jon Thompson,
represented by retired judge Colin Campbell, reported in the Arizona Republic,
March 8, 2012, front page Valley & State section.

5. The Treaty of Paris was signed in 1783 and ratified in 1784. The British did not
recognize America. Parliament and the Crown (and the former colonists)
recognized the birth of thirteen new nations on the North American continent. An
important fact often overlooked by modern historians.

6. There may be some truth to the old joke that appointed judges are failures twice
over: First because they failed in practice, and then again when they ran for office
and failed to get elected, thus causing them to kiss up to successful politicians who
appoint them to the bench.

7. This is not a joke. I know personally of one such case.

8. Payment, though important, is not essential to fundamentally reforming the

system because it is an administrative item to be worked out later.

9. Yes, we all know stories about lawyers in larger firms bill 200+ hours per month
by billing when they visit the restroom on the grounds they are thinking about the
case.

10. The National Center for State Courts, January 1, 2011, issued a report showing
Arizona judges get about $155,000.00 per year salary.

11. According to the Pima County website, March 18, 2012, the perks available are,
for example: Medical Insurance, Dental Insurance, Life Insurance, Vacation (lots of
it), sick leave, paid holidays (more than in private practice), State Retirement
System and Long Term Disability, Short-Term Disability, Employee Assistance
Program, Deferred Compensation, Subsidized Bus Pass Program, and Savings
Bonds.

12. According to an Arizona Republic Investigation, published November 10, 2010, in

eight parts, elected officials, including judges, after 20 years are able to retire on a
pension that pays them 80 percent of their final annual salary in the first year alone,
before any cost-of-living adjustments kick in. The article states Maricopa County
Judge Norm Davis believes the system is fair for judges, who could earn far more in
the private sector as lawyers. Could they really? According to salary.com, the
median salary (not sole or small firm practitioner) for a Phoenix attorney (highest in

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the state) was $84,023. The salary of a judge? $155,000. This does not include perks.
Which leaves us with the question: Was Judge Davis out of touch with reality? Read
more: http://www.azcentral.com/news/articles/arizona-pension-funds-elected.html
and www.salary.com. When one adds the salary and the perks, my guess is most
judges never made that much in private practice and had little hope of netting such
a largess.

13. In true form, the Superior Court judges are now lobbying to have the retention
ballot every eight years instead of every six, as it is now. See Arizona Senate
Concurrent Resolution 1001. An excellent example of how anyone in power wants to
retain that power with the least oversight possible. If I had a choice, it would be all
judges sitting by reason of the current system would be every two years.

14. Brownes, Hugh Henry. Should Trial by Jury be Eliminated in Complex Cases?
University of New Hampshire School of Law.
http://law.unh.edu/risk/vol1/winter/bownes.htm

15. King Henry II, ruled from 1154 to 1189, which is technically the High Middle
Ages, but the use of the jury system appears to have stemmed from yet earlier
times, even before the Norman Conquest in 1066. Baker, J. H. (2002). An
Introduction to English Legal History (4th ed.). London: Butterworths. pp. 7276.
ISBN 0-406-93053-8

16. Magna Carta of 1215. The Document does not use the word jury, but the
function is set out. http://www.fordham.edu/halsall/source/magnacarta.html

17. Bownes, Ibid.

18. Tavris, Carol, and Aronson, Elliot. Mistakes were made (but not by me)Why We
Justify Foolish Beliefs, Bad Decisions, and Hurtful Acts. New York: Harcourt
(Harvest Book), 2007. ISBN 978-0-15-603390-9. Especially Chapter Five, about the
legal system. I recommend this book to everyone.

19. This quotation is widely attributed to Mark Twain, but the actual source
remains clouded in mystery.

20. The Great Courses, Your Deceptive Mind: A Scientific Guide to Critical
Thinking Skills, lecture 4. ISBN 978-1598038286.

21. More than one person who read a draft of this article told me the idea is radical.
Radical means a fundamental change. My response was, Youre right. And you
will enjoy my article entitled: Police Reform: Can the Cops!

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