Justice for All

Strategies for Effective Court Reform

by Douglas Dunn

Copyright (c) 1998, 1999, 2000 Douglas Dunn / Word Wizards communications -- all rights reserved

Index: Criminal Justice | Civil Courts/Tort Reform | Jury Service | Suggestions for Reform

Much has been said in recent years about our troubled courts. Both criminal and civil courts have come under fire. In criminal courts, defendants accused of crimes but not yet found guilty of anything languish in jails awaiting the lengthy processes of trial while victims of crimes feel deprived of anything approaching equal access to the scope of rights afforded to those accused of crimes. In civil courts, there are allegations that many litigants file frivolous lawsuits, playing "liability lottery" in hopes of hitting a jackpot whether their claim has merit or not with a resulting outcry from some quarters demanding "tort reform" by those who would set up barriers to litigation. In both criminal and civil procedures we see that those with money are able to buy more successful outcomes at trial, while those without are denied equal access to the public institutions established to resolve disputes and maintain public order.

Author's perspective:
I am writing this from the viewpoint of one who has been a long-time observer of the judicial system from a uniquely objective point of view. In addition to other professional roles in education and communications, for more than 25 years I have served several hours a week as a sign-language interpreter for Deaf persons interacting with the legal system (as well as in numerous other settings). I have seen and represented all sides and all viewpoints in the judicial system. In the criminal justice system, I have accompanied Deaf people who were charged with crimes, from minor infractions such as traffic tickets up to major felonies including rape and capital murder; I have accompanied Deaf people who were the victims of crimes and otherwise witnesses to crimes. In civil cases I have worked from small claims court to superior court lawsuits involving hundreds of thousands of dollars, accompanying those who were both plaintiffs (initiating lawsuits) and defendants and some cases where both sides of the case were Deaf. I have interpreted for Deaf persons sitting on juries or being considered for that role, in both criminal and civil matters. I have worked in family court (divorces and child custody) as well as probate court and administrative law hearings for Department of Motor Vehicles, Workers Compensation and reviews of benefit claims from numerous public agencies. I have also interpreted for numerous quasi-judicial proceedings, such as arbitration and mediations. In each such case, while the case is going on I take on the role and speak the words of each person in the courtroom, articulating their viewpoint -- from the attorneys (on both sides) to the clerks to the judge, and to all witnesses and other participants. I have a broad but neutral perspective, since I am not an attorney (and certainly not a judge) and have never been a party to a case myself (other than a simple un-contested divorce 25 years ago in which both sides presented a stipulated agreement for ratification and acceptance by the judge).

It should also be clearly noted that, in my experiences with many facets of the judicial system, individual judges, attorneys, administrators and clerical workers I have encountered, with only rare exceptions, have been hard-working, competent public servants doing their best within the constraints of our adversarial judicial process. The issues and problems I have cited in this commentary are not personal, but address systemic and institutional problems.

Our American justice system prides itself on having greater protections for the rights of persons accused of crimes and for the equitable settlement of disputes than any other in the world, and I have little doubt but what this is true. However, there are many areas in both criminal and civil proceedings where fairness and equity fall short. We have the greatest system in the world, but there are problems that need to be identified and addressed so we can continue our leadership role in providing justice for all. We will look at both criminal and civil systems to identify weaknesses and propose remedies. Without doubt some of these remedies will cost money. Other remedies will cut the waste of bureaucracy and inefficiency and save money. But freedom is not free and justice is what the court system is all about. And, in the long run, the costs of providing justice are far less than the social upheaval and economic disruption that exist in its absence.

Jump to: Criminal Justice | Civil Courts/Tort Reform | Jury Service | Suggestions for Reform
Criminal Justice Reform
We need to be "tough" on criminals, but we need an efficient criminal justice system that ensures that the right persons are found guilty and gotten "tough" with, while protecting the rights of innocent persons who accidentally and wrongly get caught in the judicial trap.

Right of Speedy Trial and Competent Counsel
The sixth amendment to the Constitution guarantees the right of persons accused of crimes to have legal representation. It ALSO ensure the right to a "speedy" trial. Please note that BOTH rights are Constitutionally mandated, not one or the other. Yet in the real world, persons accused of crimes, even if they are being held in "custody" (this means JAIL, even for those who have not yet been found guilty ... and who might never be...), must often waive their right to a "speedy" trial to give their legal counsel adequate time -- often over months and years -- to prepare a defense and hold a trial. The San Diego County case of Dale Akiki, accused of a horrible crime and held in "custody" for TWO YEARS during a lengthy trial which only proved his INNOCENCE and ultimate acquittal, is an excellent example, though far from the most egregious.

What would happen if a defendant (especially if he were being held in "custody") refused to waive his right to a "speedy" trial and, at the same time, refused to waive his right to competent legal counsel?

The fact that trials are now dragged on months and years which only a few decades ago could be completed in days or weeks is itself a violation of the Constitutional rights of persons accused of crimes and demonstrates the need for reforming and streamlining the legal process.

And, speaking of competent, qualified legal representation guaranteed by the Constitution, a word should be said about public defenders. Certainly, no group of attorneys is more dedicated and hard-working than those underpaid, overworked representatives committed to making sure everyone has the best shot at attaining justice. The fact is, however, that a good defense costs money and the budgets for public defenders have not kept pace with the demands of their workloads. I have worked on cases (involving Deaf persons who were accused of crimes as well as for victims and witnesses) where the defense was represented by the Public Defender's office and where private attorneys were hired. And, like any person close to the system with an ounce of honesty or objectivity can attest, there is a big difference in the quality of the defense. During pretrial motions and hearings, public defenders often walk into courtrooms with stacks of folders which they are busily perusing moments before the hearing, representing persons they are just now meeting for the first time. At the next hearing, perhaps a different public defender will be representing the case. Despite their valiant and heroic efforts, there is no way they can afford to provide anywhere near an equitable level of professional representation as a private attorney. Until public defenders are provided a level of resources, in both time and financial means, commensurate with what is usual and reasonable for comparable defense in the private sector (not necessarily the best or most expensive as in an O.J. Simpson trial, just what is the usual standard in the private sector), we should vigorously assert that the Constitutional requirement for competent legal counsel has not been satisfied. If Counties fail to provide COMPETENT counsel using state-of-the-art legal methodologies, then they are violating the Constitutional and civil rights of persons accused of crimes.

There is, today, clearly a two-tiered system of justice: one for those who have money and can buy access to justice and a separate and very unequal system for those who do not and cannot. And, while it is a cliche that minorities and the poor are hit hardest by this inequal access to justice, any impartial observer who has ever watched the difference between those going to court with money and those without, will attest that a young black male coming from a family of modest means will face a terribly different standard of justice than an elderly white matron from a well-established patrician lineage. It is a sad truth, but the blindfold on Lady Justice has slipped, if it was ever really secured at all.

Awaiting Trial
We must remember that those accused of crimes (or who are being held for challenges to mental competency) have, by definition, not yet been found guilty. They hold the presumption of innocence and, in many cases, they are going to trial instead of pleading their guilt because they are innocent and are prepared to assert the defense of that innocence. As a courtroom interpreter, I have seen many examples of where justice has been done in punishing the guilty, but also in freeing those wrongly accused. The current system penalizes those who refuse to accept a plea bargain and who wish to assert their innocence before a jury of their peers. And for those who are found to be mentally incompetent, it may be necessary for them to be removed from the general population for their own safety and the safety of others, but we must remember that they are ILL -- they have NOT been found guilty of a crime. They should be provided with accommodations as much like their natural living conditions as possible and with as much freedom and personal choice as their condition permits.

In one case I was interpreting for a Deaf defendant accused of being an accomplice to the stealing of a TV set. He was a youthful transient, in his early twenties, recently relocated to the San Diego County area from Washington state. He was staying in an apartment with some new acquaintances. While he was asleep on the sofa, two of his roommates returned to the apartment, carrying a brand new TV set, freshly lifted from a nearby department store. They had been spotted in their act, followed, and the police were called. The police arrived as they were bringing the TV into the apartment. The young Deaf lad, asleep on the sofa, could not hear the approaching sirens and commotion and did not know anything was amiss until awakened by the incoming rush of uniformed law enforcers. They arrested the two youths caught red-handed carrying the TV, and also the young Deaf lad. Because he had no roots to the community and no money with which to post bail, he was held in "custody" while awaiting trial. With the aid of a free public defense attorney, his repeated requests to be released on his "O.R." (own recognizance with promise to appear) were denied, even though the allegation was of a relatively minor property crime which he denied having any involvement with. The District Attorney's office offered a plea bargain, that he could plead guilty to a lesser charge and be released the same day on probation, but if he wanted to assert his innocence at trial he would have to remain in jail until trial could be scheduled. I remember his quizzical expression as he asked his public defense attorney, through me as the interpreter, "Am I getting this right? Is my interpreter screwing up the message here or something, because this isn't making any sense. What I understood the interpreter to say is that if I plead GUILTY to a crime I did NOT commit, I am not a danger to the community and I can be released today. But if I claim I am innocent, then I am too much of a risk so they are going to hold me in jail for several more weeks. This is nuts, now, come on and tell me where the interpreter messed up?" The attorney assured him that his response showed that the interpretation had been correct. And I will add that my Deaf client was correct: THIS IS NUTS. And it is not justice. Understandably hating life in jail, he plead guilty, got a felony on his record and subject to three years probation, but he did get to go home that day, as promised.

Again: persons accused of crime, while awaiting trial, have not yet been found guilty of anything, and maintain a presumption of innocence. This is what we always hear as legal theory, but in actual practice it only applies to some, not all of those accused. Some are presumed innocent and allowed to live a reasonably normal life (other than the threat of a future trial hanging over their head) while others are treated, in all respects, no different than convicted felons who have been jailed for the crimes they have been found guilty of. The basis for discrimination? Status and wealth. Except for the most serious offenses by the most dangerous criminals, if a person has ties to the community, lengthy years of residence and a broad scale of networking connections, they will be allowed out of jail on their "own recognizance" or a bail amount will be set. Of course, the amount of bail and the share they will have to post to the bondsman to ensure their appearance at court will both be directly related to their status and wealth and, if bail is required, their ability to post it will be a direct correlation to their wealth, not to mention the fact that those least able to pay will be the ones considered most at risk so, in addition to the barrier of their poverty, their bail amount will, itself, likely be higher.

We absolutely need to reform the manner in which we deal with persons accused (but not yet found guilty) of crimes and not only give lip service to their "presumption of innocence," but actually start treating them that way. While we must clearly recognize that, after the often-difficult apprehension of suspects, it will sometimes be necessary to hold them until trial, we cannot forget that these are still people who are presumed innocent and that others accused of crimes are posting bail or walking free on their own recognizance while awaiting trial. Sometimes it is a close call between allowing a suspect to walk free and holding them in jail until trial, and yet the difference in how that impacts their lives is enormously different. In fact, those persons (presumed innocent) held in "custody" (jail) awaiting trial are essentially treated no differently than those who have already been convicted of crimes. Their treatment goes way beyond merely ensuring that they show up for trial; it does include a substantial measure of punishment. They are denied access to the means of gainful employment. They are denied access to their usual means of communication and recreation. They are even denied access to their usual manner of food and dress. They are transported in handcuffs, and even for routine court appearances outside the viewing of the jury they are presented to judges garbed in "jail jammies" handcuffed to a chain of their fellow prisoners. Even for Deaf prisoners, judges and their own court-appointed attorneys often lack the sensibility or awareness of issues relating to Deafness to recognize that they are unable to speak or respond to questions while their hands are chained, and it often falls on the interpreter to call attention to the fact that the prisoner cannot respond until the handcuffs are removed, which is beyond the role of what a neutral aide to communication should ever get involved with.

It is absolutely a violation of the presumption of innocence that those held for trial be treated so differently from those free on bail or their own recognizance, and so similarly to those who have actually been convicted of crimes. In the many cases where there is a legitimate flight risk or risk of danger to others, when those accused clearly do need to be held, prior to any conviction they should be treated as close to possible the same as in their non-jailed lives.

While the mere fact of lost freedom would have some punitive effect, every effort must be made to ensure that their sole purpose in being held is to make sure they show up for trial and don't hurt anyone in the meantime, NOT to inflict ANY punitive measure whatsoever. They should be housed in facilities designed as much as possible to be like inexpensive but clean apartments, with entertainment and communications equipment and greater access to visitors. They should have private rooms, with access to common areas when they wish to socialize with others. They should have access to wider menu selections than those who have actually been found guilty, to accommodate personal preferences and dietary restrictions. They should not be placed in barred cells or handcuffs unless that greater need for security and safety becomes clearly demonstrated based on their own dangerous behavior, and only for specific cause after a separate hearing with judicial supervision. As much as possible, they should be provided the means of communicating with their places of employment so that, if possible, they can continue gainful employment from a remote site in ways that was not technologically feasible even a few years ago. Those who do lose income while restrained prior to any conviction should have all lost income restored at taxpayer expense to them if they are subsequently found "not guilty" at trial, and should be compensated for the indignity of imprisonment. Under the current system, those who are found GUILTY later are credited (i.e., compensated) for the amount of time they served prior to conviction. However, those who are incarcerated but subsequently found NOT GUILTY at trial, i.e., those who are innocent and have already endured the indignity of being falsely accused and imprisoned for something they didn't do, receive no compensation whatsoever. Again, the guilty are treated better than the innocent.

To those who will inevitably complain that these proposals are "coddling criminals," we must again emphasize that these are persons held in jail who have NOT BEEN CONVICTED. If and when they are found GUILTY of their charges, then they can be treated like normal prisoners in the regular system of jails and prisons. There may also be questions of whether and how we should reform the treatment of convicted prisoners to most effectively plan for their eventual return to mainstream society (as almost all of them eventually will), but that is a separate issue from this discussion about how to treat those who have merely been accused and have NOT found guilty. To treat them differently that those who have their same status but are walking free, and to treat them more like those actually convicted, is clearly a violation of both their presumption of innocence prior to actual conviction and their Constitutional guarantee of due process and equal protection under the law. I can assure anyone who is concerned about "coddling" that the day they are wrongly placed in jail for something they did not do and have not yet been convicted of, they will not consider any of these suggestions to be adequate to the injustice they have suffered.

Such measures might well increase the costs of holding prisoners accused of crimes while awaiting trial. Such costs might also be offset by the greater efficiencies of other reforms discussed in this proposal. Such costs might also be offset by reconsidering some aspects of public policy, such as problems of substance abuse, which now handled in the criminal justice system but which might be better handled, short of outright legalization, as public policy issues through other approaches that might be more effective [this is, of course, a separate issue, discussed in the separate article on substance abuse minimization]. Such measures might also spur greater efficiencies by motivating authorities to use greater judgment in determining how persons accused will be held for trial. Holding persons accused in custody should strictly be seen as a last resort, and should be employed only after all other measures, such as house arrest, work release programs, electronic monitoring, etc. -- have been considered and found inappropriate. There are very few persons accused who are so dangerous to others or such risks of flight that they cannot be produced for trial with electronic surveillance. The small additional cost of improving the facilities in a low-cost way for those held but not yet found guilty could be offset not only by other reforms, but by concentrated effort to use less expensive means of making sure those accused can be produced for trial. In any case, such costs are the costs of justice and of living in a free society that protects the rights of its innocent citizens. If such costs are burdensome to taxpayers, then they should examine how burdensome it is when borne by an innocent person wrongly accused and later found not-guilty, or perhaps we should consider returning to policies of greater tax fairness [see separate article on tax fairness].

Jump to: Criminal Justice | Civil Courts/Tort Reform | Jury Service | Suggestions for Reform
Civil Courts (Tort Reform)
We see that increasing numbers litigants are being required (as terms of contracts they have been coerced to accept in order to accept opportunities as consumers, employees or otherwise participate in the activities of usual daily living) to accept compulsory arbitration in lieu of traditional lawsuits resolved in courts, and forfeit access to what should be the legal system there to settle disputes and ensure their access to judicial equity. Increasing numbers of losing plaintiffs are being assessed the costs of litigation, including the legal fees of defendants who win, so that some plaintiffs with legitimate claims may be intimidated from pursuing rightful remedies for fear of losing against better-funded defendants, and having to pay expensive court costs.

We hear much about the need for tort reform. While much needs to be done in this regard, one cause of high claims is to cover the costs of gaining access to court in the first place. Court costs are simply too high and the procedural constraints and technicalities so arcane that they are simply not accessible without costly professional advisement, yet while this is a necessary condition for access to the public institutions which settle disputes, this condition is primarily available only to those with sufficient financial resources, thus shutting out many from their Constitutional right of access to petition their legal institutions charged with the enforcement of public policy on their behalf. While the up-front costs of such access may be deferred for plaintiffs initiating lawsuits brought with the aid of consumer attorneys working on contingency-fee arrangements, there is no such avenue of general public access to equitable legal action for those involved with other civil actions, including the domestic court, filing (and enforcing) motions for injunctive relief, probate actions or the defense side of tort actions (unless covered by insurance). And even this route shuts out many claimants, as many contingency-fee attorneys still require upfront and ongoing payment for "expenses," even if that does not include actual fees for professional services, but still many potential litigants cannot afford the high outright costs of filings, depositions, etc.

The idea of people filing extensive frivolous lawsuits and hoping to cash in on a "liability lottery" is an urban myth. Real-world examples of such may exist, but they are extremely rare. The reality is that the current legal climate allows corporations to trample on the rights of workers and consumers with only minimal threat of a serious legal challenge. In criminal law there is a huge outcry to protect "victims' rights." But where is the outcry in civil law to protect the rights of those who are victimized? Any proposal for court reform must include protection for workers and consumers who are the victims of civil wrongs, and make it easier to gain access to low-cost legal representation and reasonable costs and procedures in the civil process itself.

Not only has the system become so complex that it cannot be accessed without very expensive professional counsel, but huge, pompous courtrooms simply cost too much to run. Accordingly, damage claims arising out of tort actions must be high enough to cover all the pain and suffering -- not from accidents, but from going through the legal system, plus the actual costs of court and exorbitant legal fees. And, in fact, if the damages are not sufficient in pure dollar terms, it will not be possible to obtain qualified professional representation (thus equitable judicial access), no matter how important or otherwise relevant the issue of law and equity might be.

Civil courts where attorneys are not permitted (i.e., small claims), and therefore have no incentives to generate needless complexity, are inexpensive and efficient, and participants usually feel that real justice is served, perhaps on a broader scale than in more expensive and unwieldy courts. Lawyers do not feel threatened by the existence of such courts because the amounts at issue are not worth their time.

Of course, lawyers will argue that simple cases require less complexity. But what about cases handled in binding arbitration? Some of those are very complex. But because they are handled in the private sector, contractually, the expensive and pompous formality of the courtroom, along with costly interrogatories and depositions used to wear down opponents (and drive up fees), can be replaced with more efficient processes in which, again, participants generally feel more confident about the quality of justice dispensed. In such proceedings, all the parties and their attorneys gather around a table (instead of an elegant, imposing courtroom) and have their cases heard by an experienced (off-duty or retired) judge. No one sacrifices due process. Their attorneys are still there to safeguard their legal interests, but they are handcuffed from running up excessive waste.

Similarly, in cases of mediation, where lawyers and judges are not even involved at all, issues are thoroughly hashed out in a non-adversarial setting and outcomes resolved with greater satisfaction for all than the results of litigated adversarial proceedings. Yet when the parties are not able to be brought to consensus, the mediator usually does not have the power nor legal standing to actually issue a binding decision.

In contrast, what do we get from our high-paid judicial experts (judges)? Other than in full-blown trials spanning many days or weeks and running up thousands of dollars in purely administrative and procedural costs, what we actually see is that the trained jurist presiding over motions and hearings is often presented with huge files regarding complex cases which the judge often reviews only cursorily and hastily, quickly trying to distill extensive records and statements into key points and often overlooking obscure but possibly relevant points.

Jump to: Criminal Justice | Civil Courts/Tort Reform | Jury Service | Suggestions for Reform
Jury Duty
In my state (California), sign language interpreters assisting Deaf jurors are the only non-juror individuals specifically permitted by statute to sit in on jury deliberations. Thus, without being a direct participant myself, I have been a close observer of the entire process of jury service, from juror orientation, to selection (voir dire) and empanelment, to sitting through trial (civil or criminal), and the process of deliberation and coming up with a verdict.

In the course of this service, I have made some observations. Without getting into the subject of adequate juror compensation and working conditions (which have remained static in my state for many years and have not kept pace with inflation, but which others seem to now be addressing), I wish to focus on the issue of representative (non-discriminatory) selection of jurors and the systematic elimination of certain classes of the population from jury service.

Those who are selected for consideration as jurors are overwhelmingly either retired persons or persons working as employees for companies who will continue to pay them during the tenure of their jury service. Those who are self-employed, work for small companies who cannot afford full reimbursement, students, or whose role cannot be covered by others may be excused on the basis of "financial hardship."

What this means, however, is that in a system where those accused of crimes or involved in civil litigation are guaranteed the right of being tried by a "jury of their peers," if a self-employed business owner or commissioned sales person or professional person (doctor, lawyer) were accused of a crime (or litigating a civil dispute) arising out of their economic or professional role, they could be assured that one of their peers who might represent their views and perspectives will NOT be sitting on the jury -- or that, in the rare case of a self-employed entrepreneur or professional person who does make the economic sacrifice, that they will be extremely underrepresented and that the very existence of a juror representing their "peers" would, itself, be an extreme rarity.

A doctor being sued in a malpractice case or a business owner accused of violating environmental laws can go to trial with a firm assurance that the jury that hears their case will NOT be a jury of their "peers." All of their peers have been systemically excluded as a matter of the way in which jury pools are created.

Jump to: Criminal Justice | Civil Courts/Tort Reform | Jury Service | Suggestions for Reform
Suggestions for Reform
While voters are standing up against government waste, there are several steps we must take towards real court reform:

1. (Criminal and Civil) We must streamline court processes, reducing costs enough so that those with legitimate claims are not intimidated from pursuing their lawful rights. Get judges out of those expensive courtrooms and chambers and into small, informal proceedings modeled after small claims court, traffic court, arbitration and mediation, so that litigants may enjoy the benefits of streamlined cost savings within the existing judicial system and all of its safeguards for their rights, including the rights of appeal rather than the contractual acceptance of an arbitrator's singular decision. The proceedings must be simple and informal, with an eye towards mediation-like consensus-building and the efficiency of more informal small-trial procedures, rather than adversarial litigation, but in which the judge is able to not only review a broad perspective of the context of the case without a full trial but also does have the power to render binding legal judgments.

2. (Criminal and Civil) Ensure availability of QUALIFIED legal representation if the courts cannot be made sufficiently simplified to ensure access without it. In criminal cases, those accused of crimes who cannot afford legal representation will have it provided for them, but measures must be taken to ensure that the dedicated, hard-working public defenders compete on a level playing field and have sufficient funding to ensure an equivalent quality of personalized representation as is provided by the private sector. The sixth amendment of the Constitution specifically states that persons accused of crimes have a right to legal counsel. The same right should be extended to those in civil proceedings. The mere existence, however, of a Constitutionally-defined public institution charged with settling disputes and maintaining order should bear a presumption of qualified access to that system. Perhaps there was a time when people could credibly defend themselves "in pro per," but today, in any civil case beyond small claims, a person who is handling any action in a courtroom simply is denied access to reasonable judicial equity unless represented by qualified counsel. Those who pay taxes that support the existence of a judicial system, but are denied access to that system solely because of their economic status, are denied equal protection under law and are the victims of economic discrimination.

3. (Civil) Reform contingency fees. The key here is "reform," not "eliminate" -- as some misguided proposals seem to suggest. Contingency fees have been one of the real guarantees of popular access to the court system for those who could not otherwise afford legal representation in those cases where such fees are available. Still, paying 30% or 40% of an award to an attorney is an expensive price to pay for access by those who have been wronged to the public institution charged with righting those wrongs. But simply limiting the percentage fee would be counterproductive. Even under the current system, those whose claims are for small amounts in pure dollar terms, even if other important legal issues are being raised or other non-monetary relief is critical to justice, have a hard time attracting legal representation by attorneys who do not feel that the likelihood of success and the small amount of compensation that the attorney would receive even if the case were to be won. A more appropriate solution would be to establish a graduated scale for fees. For example, fees for small judgment -- say, amounts up to $50,000 -- could go as high as 40% or more, while those from $50,000 to $500,000 might be limited to 20-25% of that layer (in addition to the higher rate charged for the portion in the primary layer), the portion of judgments from $500,000 to $1,000,000 might be charged a fee limited to 15% in this third layer (in addition to the split rates on the first and second layers) and amounts over $1,000,000 to 5% of the portion over all the primary layers.

4. (Civil) Reform the payment of punitive damages. In many cases, punitive damages are necessary to protect the public good even where the specific amount of loss to one person, measured in dollar terms, is small. An example is the much-ridiculed McDonald's coffee case, where a huge award was paid to a woman who spilled hot coffee on her lap. At first glance, it seems like an outrageous award, until one learns just how extensive the injuries were to the sensitive genital areas of an older woman, until one realizes the large number of small cases that were cited where McDonald's had paid out $500 here or $1,000 there, and had determined that keeping the coffee at an excessively hot temperature created an aroma that aroused hunger and sparked more food sales and that paying the occasional small damages to injured persons was just part of the cost of doing business. By issuing a judgment large enough to get the attention of the McDonald's corporation, the court was able to get them to stop a policy of knowingly hurting people by making the cost of doing that business higher than what they got for it. However, the payment of punitive damages is to protect the public, not to compensate the victim, which is what the direct damages are for. Yet the entire amount of these huge awards in the public interest go to one person, and NOT to the general public! If we simply return such damages to the general fund, then litigants would have no incentive to bring them. Perhaps we need a "finder-fee" rate, at graduated rates for increasing layers of larger damage awards, which is paid to the victim, with the balance being returned to the general fund. It might also be possible that the general public portion of such awards could be used to help fund access to legal representation in civil cases.

5. (Criminal and Civil) Make the courts accessible to individuals. Require that every court, at every level, provide clear, simple information about completion and filing of forms, procedures to be followed and how to operate in the court environment, so that individuals realistically can defend themselves "in pro per." Simplify legal mumbo-jumbo and arcane, irrelevant proceduralism so that individuals can realistically defend themselves by stating their cases and describing their evidence in simple English. Many of the strict requirements for forms and procedures currently observed are not really germane to the finding of fact and the application of law that the court process is actually supposed to be about. One might almost suspect that, other than in the small claims courtrooms that are of no interest to attorneys, the process has intentionally been made artificially complex and convoluted to make the role of attorneys more "necessary" than what nature and common sense would dictate. Provide greater access to law libraries and assistance in finding relevant points and authorities and information about other applicable legal references. Quit nickel-and-diming participants with petty charges such as exorbitant costs for three-cent photocopies or costs of transcripts that could easily be provided on disk or electronic file transfer from the court clerk's word processor.

6. (Criminal) Reform the treatment of persons accused of crimes but not yet found guilty, to consider every alternative for ensuring appearance at trial without holding them in "custody" (jail), and holding them only as a last resort when there is a clear and present flight risk or a risk to the public safety and then, until they are convicted, holding them in clean, private facilities designed to feel as much like a home or apartment as possible with access to the lifestyle preferences in entertainment, communications, food and clothing as possible until a conviction has actually been obtained.

7. (Criminal and Civil) Make more effort to stick with scheduled court dates. Currently, if the matter before the court develops into anything other than what is routine or what was expected, inadequately prepared judges and even opposing attorneys, become flustered and need to seek repeated delays ("trailing" the calendar) and postponements ("continuing" the case). They don't seem to realize how this impacts the real-world lives of actual human beings who have to work for a living, in travel time and expense and time off from work. Often the issues have been covered in filings within the massive reams of documentation in a file, so it is not necessarily that judges or attorneys have not been given notice, if they would take the case as seriously as mediators or arbitrators do. Yet hearings are often re-scheduled instead of taking a few extra minutes of court time while all the parties are present to listen to a summary of the issues and consider the legal issues (or adequately becoming familiarized with the issues and background before the hearing), even if it would require a recess to allow the judge time to review judicial precedents or other legal references. This might result in specific relevant hearings taking up more time, which should be considered when setting the calendar, however in the long run fewer court dates for additional hearings would ease courtroom congestion. Of course, this does allow attorneys the opportunity to keep the meter running.

8. (Civil) Implement realistic tort reform, redefining issues of liability and damages in common-sense terms that make people accept responsibility for their own choices and award damages commensurate with actual losses, to reduce the incentives behind frivolous and "deep pocket" lawsuits that drive up costs by clogging up the court system.

9. (Jury Service) Provide adequate compensation and/or incentives to allow self-employed entrepreneurs, professional people, etc., the opportunity of participation in jury service. The systematic exclusion of an entire class of persons from jury service is discriminatory and denies them their guarantee of being judged by a jury of their "peers." If this cannot be rectified, then perhaps we should give up the illusion of amateur citizen "juries of peers" judging others and empanel trained professionals as jurors.

People should not be intimidated by the very legal system that was supposedly created to help them maintain order and settle disputes. Being accused of a crime or going to superior court in a lawsuit will never become a pleasant experience, but it should not be much substantially more traumatic than small claims court or a traffic ticket, other than the weightier issues of more complex cases. Those with legal defenses or valid claims should feel free to pursue them, while getting a summons shouldn't be a big deal, thus removing the intimidation of the judiciary from American life.

Index: Criminal Justice | Civil Courts/Tort Reform | Jury Service | Suggestions for Reform

Copyright (c) 1998, 1999, 2000 Douglas Dunn / Word Wizards communications

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SPECIAL NOTE regarding feedback:
We appreciate the many responses to our ideas and proposals for judicial reform. We also appreciate the opportunity to hear of the many experiences of those who have personally suffered injustice in our present legal system. However, author Douglas Dunn is an activist seeking general reform, but he is NOT an attorney and cannot provide legal advice or advice about specific situations, though we appreciate those who are willing to share their perspectives and experiences.

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Check out additional articles by Douglas Dunn now available as FREE DOWNLOADS -- with additional articles being added regularly, each one an adaptation of those that have been published in mainstream newspapers and magazines [more articles].

Books by Douglas Dunn (click on book titles for descriptions of books and ordering information):
Books written by Douglas Dunn
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