Reset the legal system? It's not going to happen
(published as a commentary/guest column in the January 19, 2019 online editions of the San Antonio Express-News and the Houston Chronicle and in the January 20, 2019 print edition of the San Antonio Express-News )
Copyright 2019 (all rights reserved)
There’ve been times when I reflected on my 54 years as an attorney― 14 as a jurist―and on the imperfections of our legal system. I confess that I was tempted to say, “Let’s start over,” due to my sense that the process was broken.
Let’s dump the system, I’d fantasize, hit the delete button, wipe the board clean.
But that’ll never happen. Why? Because, despite our system’s flaws―and there are many―it’s by far the best on the face of the earth.
Having said that, the drawbacks we encounter cause unfairness, denial of rights, inefficiencies, and unnecessary costs to our governments and to citizens trying to painfully navigate the system.
Here are some of them:
Time delays caused by court congestions, attorneys’ workloads, and time–consuming processes.
Increasing expenses caused by rising attorney fees, expert witness fees, and costs of discovery.
Lack of uniformity, both in the laws and in their application, partly caused by this country’s federal structure (50 sets of laws enacted by our states).
Unequal or disparate treatment.
Deficiencies in our selection of judges.
Injustices, such as wrongful convictions in criminal cases and unfair or wrong verdicts in civil cases.
Legislative delays in enacting new laws or repealing old ones, due to bureaucracy, inefficiencies, and partisan politics.
Our evolution into a litigious society, increasing court congestions and costs.
Last, but not least―many legal needs left unattended, either because we haven’t the money or don’t take the time.
These problems have worsened through the years as income inequality has widened.
Compounding the problems is the absence of insurance coverage to help with legal costs, as we have for medical expenses. There are companies that provide prepaid legal services for monthly fees, but they’ve proven to be ineffective and don’t provide the legal help needed. They only provide participants a false sense of security.
The need for legal help, of course, doesn’t always have the sense of immediacy―not even a sense of urgency, as do medical needs. If your child breaks a leg, you immediately take her to the emergency room; no second thoughts.
Not so in the law. Some of us go through most of our lives without ever thinking of going to see a lawyer.
Yet, there are many who have had, and continue to have, those needs. And I refer not only to those charged with crimes, but to decent, hard–working folks like yourselves, whether enmeshed in a lawsuit or dealing with an estate or loss of life issues you can’t handle on your own.
Those who own businesses, of course, have greater needs to seek legal help and do so.
In recent years, the increase in legal costs has given rise to pro se litigation, in which those who can’t afford legal representation represent themselves, even in the courtroom. Ironically, the growth of pro se litigants has added to our court congestions, thus compounding the problem of delays.
Our jury system alone has been the basis of much criticism. But as I noted a few years ago, “Our jury system’s survival throughout this nation’s history attests to its strength and vitality. Despite the attacks on our juries, no one has yet come up with a better way.”
Last year, I wrote about our adversarial system, under which lawyers present their clients’ cases in court. The system has been around for hundreds of years and only a few litigators would consider adopting any other method for trying a case.
After noting that some critics of our adversarial system, where each side seeks to “win” its case, argue that such motives don’t serve the goal of truth finding by a judge or jury, I posed the question, “So why has the adversarial system survived throughout our nation’s history?” Because, I believe, no one’s found a better way.
Lawyering has been recognized as one of three time-honored professions, along with medicine and teaching. But it’s also a business. Even though attorneys are in the profession to impart their expertise, they also enter the profession to make a living.
It’s expensive to run that business. Aside from the usual overhead expenses it takes to run an office, attorneys have other expenses such as bar fees, continuing education, and malpractice insurance. These continue to rise, and that rise is then passed on to their clients in increased legal fees.
Our system of justice has been around for a long time. Although w’ve made improvements, the basic setup has remained unchanged.
It’s remarkable that we’ve done as well as we have with our system.
If an overhaul is out of the question, what then are the solutions to the problems that exist? Honestly, I don’t have any.
When we speak of legal reform, we think in terms of minor changes to our existing system. Any system occasionally requires fine tuning. But, to my knowledge, we’ve never considered major changes to its structure by adopting an entirely different process.
Rest assured that legal professionals are aware of the problems within our judicial system. Legal organizations, federal and state courts have created various committees and task forces to seek resolution, and beneficial changes have occurred as a result.
But perhaps we should take another look at the problems I’ve noted.
In the end, the most significant problem encountered in our legal system is affordability and ultimately the threat to our access to justice. Although some inroads to such access can be made, we may come to realize that this problem is without a solution, due to the inequalities in life.
After all, not all of us can afford to enjoy the finer things in life. Many of us can’t even afford to own a home or take a family vacation. How is being able to afford quality legal help any different?
As unfair as it may seem to equate the ability to afford a new home to our having equal access to justice, it could well be that we indeed have a problem without a solution, thus continuing the perception that the law protects only those who can afford a good lawyer.
A truth about life is that even though we may strive with all our might to seek perfection, we’ll never attain it. But that stark reality should never cause us to stop trying.
It dawned on me as I wrote this piece that these words may reveal as much about me as they do about―the law. And that is, that I’ve gone through life viewing it mostly as an idealist and not enough as a realist. But that isn’t a bad thing, because it helps us make life better for all. For no matter the obstacles encountered, we should never stop searching for improvements.
All of us play an important role in reform. We should stay aware of the problems within our legal system. They’re too important for us to leave resolution solely to the legal professionals.
If our law and order as we know them fail or are even weakened, our lives―the very existence of the human race―may hang in the balance.