An appellate colleague, who has been practicing for over 40 years, told me of her upcoming oral argument, a right guaranteed to litigants under the California Constitution. She seemed resigned to the process, “Oral argument is a joke. The Court rarely changes its mind, much less listens to what I have to say. It’s simply done to make the public believe they are really listening.” After spending so many years in litigation, I have to admit that I am often frustrated and pessimistic about getting justice for my clients.
Sometimes the end is the best place to start. In the final chapater of his book, The Nonsense Factory, (published in 2019 by Hachette Books), author Bruce Cannon Gibney notes, “Law cannot survive when people cease to believe in it. Unfortunately, few legal institutions seem moved to address the decay of civic faith.” That loss of faith can be traced back to systems that make or break laws and law schools that accept too many students so they can pocket huge tuition fees. But do they prepare their students to be attorneys or even take the Bar exam? If they did, perhaps students wouldn’t experience such a high failure rate or require the service of companies that focus on preparing graduates to take the Bar. The high cost of law school almost mandates that students take high-paying corporate jobs, if they can get them at all, to pay their student debt. Gibney notes the “troubling levels of employment,” including the lack of training and the failure to consider the clients’ perspective. To make it worse, law schools don’t actually teach students to practice law in any particular state.
Over the course of my life, I’ve witnessed this decay. Parties do not usually contact me until the end of a case when an appeal might be needed. If this was their first encounter with the legal system, they often express disillusionment over the failure to receive justice for their case. I would often reply that “consider yourself lucky if you get justice,” but really, should luck enter into it at all?
That disillusionment rose to a group experience after the O.J. Simpson murder trial or after watching acquittal after acquittal in police shootings involving victims of color. Gibney traces that disillusionment from the justice system, our method of selecting judges, costs of litigation and even the jury system itself. Don’t assume that there is more justice in our arbitration system, which favors big companies and repeat customers over a single use.
At the highest level, it is hard to convince citizens of the impartiality of Supreme Court justices who regularly split along partisan lines. One would be crazy to argue that personality and politics don’t enter int a judicial decision. So, why would we think the situation would be any different at the lower level where litigants face enormous legal fees and costs, the need to hire experts, and decisions by jurors who don’t really want to sacrifice their time hearing a lengthy trial? Trying a case is simply not practical in these times, which is why so many cases are settled before trial.
That disillusionment soon spread to Congress as their inertia and partisanship was publicly observed. As Gibney points out, the favorable opinion of Congress is very low. People have little faith that the Congress will get anything done, no matter who is in power. Gibney writes, “Congress is a sour joke, widely loathed. Partisan preference plays a role, but citizens also sense that legislators cannot do their jobs.” A case in point, the failure to come up with a comprehensive medical insurance scheme that will allow the poorest among us to receive adequate medical care. Or what about our immigration scheme? The public is often surprised to learn that a member of Congress does not even read a bill or fails to show up for hearings. Gibney extends that inertia to bureaucracy, which is often headed by partisan choices.
Of course, the executive branch is not spared in Gibney’s exhaustive research. This one is especially susceptible to pessimism, if not national depression. While no one would argue that Trump is a typical president, our faith in government has been severely tested as we have watched our relationships with allies to sink to a new low and face ongoing threats of war. We have a president that has more admiration for bullies and dictators than he does for democracy.
But Gibney does not leave us without hope. He claims, “At some point, the public will decide that legal dysfunction has risen to an intolerable level, and shift from polite requests for incremental reform to adamant demands for fundamental change.” Isn’t that what we have been hoping for with each election? Even though our last choice has failed miserably in this regard, Gibney does find some ways to pursue reform, such as by serving on juries, donating to solid candidates, advocacy and activism. We can’t afford to sit on the sidelines.