Rule of Law
“The rule of law doesn’t mean the police are in charge, but that we all answer to the same laws.”
Edward Snowden https://www.goodreads.com/book/show/46223297-permanent-record
The United States is a justifiably proud country. We have so many resources, such wealth, such brainpower, such freedom and such opportunity. Why do people rush to come to the United States? Has there ever been in incidents where Americans crossed the border to invade another country fleeing oppression? No. People come to the United States seeking asylum and relief from government violence, domestic violence, https://hornlawgroup.net/toms-river-domestic-violence-lawyer/ abusive family situations and economic opportunity. People come To the United States for one overarching reason: our devotion to the consistent application of the rule of law. We follow our own laws. We install leaders with immense power. Power enough to obliterate life on earth. Every four years, a few people in (3) or (4) states decide who will have the power to destroy the globe.
After serving four or eight years the world’s most powerful person gently hands over all the power in the world to some other person elected by a few people in (3) or (4) states. It is called the succession of power. It has happened 46 times.
Why do presidents do it? We subscribe to the rule of law. Even the most powerful among us follow the rule of law and the handover power and in the resolution of disputes and the amount of power and access we give to our citizens we are virtually unique.
Few countries are truly open to the public. Few countries allow their citizens to peaceably resolve their civil disputes by going to Court and even fewer provide a forum for citizens and foreign citizens to petition the sovereign. It sounds crazy. Who among us would Invent a system that allows regular citizens to question, petition even to this system and when? Who would invent a system that allows your citizens to question your judgment and if you are wrong and they are correct, pay them compensation?
Saying it out loud sounds bizarre. It’s the rule of law and we believe in the rule of law. Because of the rule of law, if you’re unhappy with the actions of your neighbors, contractual partners, family members or even the government itself you send some paperwork or click a few buttons and you are on an equal playing with the sovereign. Every case is bound by the same rules, laws and evidentiary standard; the essence of the rule of law. I get excited just thinking about it. What thoughtful really brilliant people framed out this concept! We often fight over the value of symbols, the proper treatment of our red, white and blue flag, our worship of the almighty dollar but we are a society unified by the rule of law.
In Action
If we start off even, do we end up even? This question sparks the enormous debate. Foundations, nonprofits, universities, law schools have conferences on this topic. Lawyers, law professors, social justice advocates write on these topics all the time. The argument is that justice is not even handed. The very Courts designed to even the playing field between the powerful and the regular people fail. The powerful wind by buying elections and installing favorable judges through direct judicial elections or through appointment systems based upon political party machine work to produce unfair results that reward the wealthy and powerful.
If you are wealthy you get to hire the lawyers who run and support the political machines. When it’s your turn in Court you get every advantage tilted in your favor. If you are the less well off litigant, you do not get a fair shake.
Access to justice is about everybody being treated fairly from the time they get to the Courthouse door to the time they go out the other end with their case resolved. It’s about everyone having access to the right forms and tools. It’s about everyone having access to some major part of legal advice and advocacy.
What the coronavirus pandemic did however is force a lot of justice to be digitized and in the words of Dr. Peter Diamandis when things are digitized, they become democratized and demonetized. The types of physical Court appearances that would put a self represented litigant or even a litigant with counsel into a tailspin have been virtually wiped out by the virus. Coronavirus kills the Courts.
Advice
“He has the right to criticize who has the heart to help.”
Abraham Lincoln
We live in an advice culture. We employ doctors, insurance brokers, mental health counselors, engineers, consultants and advisors of all sorts. Over the past few decades a new profession of coaching has been created. The thing is all of these advice mechanisms cost money. The people that conduct their profession and earn their living as advice givers have spent a tremendous amount of time and money to develop their skills and to find a marketplace for their services. They deserve to be compensated. From a societal standpoint access to justice, includes access to advice.
Family Law
https://hornlawgroup.net/ocean-county-family/
Coronavirus killed the Courts. Lawyers, like me, https://hornlawgroup.net/meet-jeff-horn/ have optimized time utilization. We now have free time to provide low bono or pro bono advice and expertise. Access to justice means, at least, a minimum level of independent advice. Court staff is generally wonderful in offering thoughtful help but Court staff is limited by the narrowness of the mission and the setting. Court staff looks at the case from neither the viewpoint of the Court customer nor the advocate. I hereby volunteer my services and the services of my partners to give free advice on video conferences in 15 minute blocks for domestic violence, child support, child custody, divorce and related cases. Distributing free legal advice requires creation of a portal between the Bar Association and the Court system.
The Court system provides the referral to the Bar Association https://tcms.njsba.com/PersonifyEbusiness/default.aspx and time slots are made available for lawyers to help clients of the Court system. These people are not clients of an individual lawyer. Obviously the client will have to enter enough information via voice or online form fill to ensure the lawyer can do a quick conflict check. The lawyer provides sound advice on the procedure that the Court customer is likely to experience in Court, advice on witnesses that should be subpoenaed, evidence that needs to be produced and in what format. In simple terms, get the Court customer’s “head on straight” before they show up in Court.
My offer is to help people in (1) practice area – family law. I offer this with the trade-off that I am not then appointed counsel in areas of law about which I know nothing. When I have been appointed counsel for a matter where I lack expertise, I hire another lawyer to handle the case. Why would I do this? I know what I know and would rather spend my time doing a case for my clients in my area of expertise. I take some dollars out of my pocket and give it to another lawyer who knows the law in the area that I have been appointed. Seems very simple, American and capitalistic. Exchanging money to buy back time is smart business for me, and the Court customer gets proper representation.
I am honored to volunteer my services in the pursuit of access to justice. All I ask is the Court to meet me halfway. Honor me back by accepting my volunteer service in my area of competence and don’t steer assignments where the Court customer is poorly served and the lawyer vexed.
“Garbage in garbage out”
“Garbage in, garbage out. Or rather more felicitously: the tree of nonsense is watered with error, and from its branches swing the pumpkins of disaster.”
Nick Harkaway, The Gone-Away World
This has been the mantra of the tech industry forever. You can have the greatest computer system in the world but unless the inputs are right, the outputs will be wrong. Everyone knows this. Access to justice means, at a minimum, good inputs. Court staff and judges are programmed to hear and see things through a certain set of lenses. Court rules, statutes, case law and rules of evidence are those lenses. When the unadvised customers of the Court system present information that does not get picked up by the lenses bad things happen, bad results for Court customers, delays, frustration and massive waste of resources. A bit of professional advice available to every Court customer, makes the whole system run more smoothly. A bit of advice prompts the Court customer to communicate with the other side and get a case resolved. Many customers of the Court system may not have even known that was a possibility once Court pleadings were filed.
Getting to Court
“The formula for success is 2% talent, 8% luck, and 90% of showing up every day.”
Jeffrey Fry
For most of us the idea of not showing up to Court because of a lack of transportation resources is far-fetched. Urban dwellers can get to Court with mass transit. The rest of us drive and park. Lacking resources to transport yourself and people in your care put you on the naughty list in Court land. The legacy Court system requires you to show up. No points are earned for trying or for prioritizing caring for a child or an elderly relative. A no-show can put your case on the track to failure.
Many Court customers have responsibility for the care of others. Dragging babies or elderly the relatives or sickly people with them to Court in order to fulfill a requirement to show up for a Court event serves no one’s interest. The Court customer is completely distracted by that baby or elderly relative. The sickly person needs care and attention and is dragging a bunch of unnecessary germs into the Courthouse. Crying babies impair a clean record in cases where daycare is not available. Let that litigant participate via telephone or videoconference and their interests will be protected while they maintain fidelity to their other caregiving responsibilities.
Physical Appearance
The blindfolded lady is a majestic symbol of our system of justice. You will not be judged by her based upon your appearance, race, religion, connections or wealth. Court staff and judges are not blind to human frailties, detached from a lifetime of experiences and isolated from their own census. The eyes are an input device that ties one’s physical appearance and conduct to a lifetime of observations. If you show up appearing disheveled, unclean and out of sorts that can impact your case. On trial day you will need to show up in Court and look and act your best. For the rest of the case, the blind lady ought to help you balance the scales of justice.
In 1952 the Boston Symphony orchestra adopted blind auditions – – the musicians play behind a screen and the judges select candidates on the strength of the music. Disrupt Bias, Drive Value: A New Path Toward Diverse, Engaged, and Fulfilled Talent (A Rare Bird Books paperback original; November 14, 2017) by Sylvia Ann Hewlett, Ripa Rashid and Laura Sherbin https://www.goodreads.com/book/show/38209856-disrupt-bias-drive-value. Over the years, the practice became commonplace and more women and minorities landed coveted slots in the big orchestras. That is the kind of blind justice we all deserve. Your shabby appearance ought not spoil your case during preliminary rounds. Coronavirus kills the Courts and extends a hand to those who find it a hardship to prioritize their appearance for Court events. Participating via telephone or even video conference will lower the likelihood of a negative bias toward an individual with shabby clothing, hygiene or behavior.
The Court customer will still have to behave well and conduct themselves properly in the case of a real trial where their rights are on the line. They ought not to appear that day with a Courthouse full of staff and judges having already absorbed a dim view of the customer. The appearances in Court may also be spoiled in part by a person having childcare or elderly relative care duties. A customer with a crying baby is inevitably distracted from the important proceedings and the finder of fact suffering alongside the distracted customer to distract the customer provides a disjointed presentation. The needy baby distracts everyone from the matter at hand. A videoconference alleviates some of that distraction and focuses the time and energy of the customer on the Court case for the critical time and then back to the duties of caring for the child or the elderly.
People with physical ailments or illnesses likewise struggle in Court land. Getting around the Courthouse can be physically commanded. Standing, sitting and focusing for a long time may be a great challenge as well. Handling routine matters without forcing the customer to spend hour after hour in Court serves the customer and eases the customer service demands on the Court staff who may need to make accommodation for that up sick or infirm custom. Coronavirus kills the Courts and the symbol of the Blind Lady of Justice is experienced fully by all Court customers.
Time
“If time be of all things the most precious, wasting time must be the greatest prodigality.”
Benjamin Franklin
The Court system is a notorious time waster. The Court system is a bureaucracy and hence tends to serve itself first. Court staff and judges have to move a certain amount of cases over a period of time. Easiest way for them to approach this is to pile up a whole bunch of cases, hope that a bunch of them will resolve and then adjudicate them one at a time. The mere act of forcing a bunch of the Court customers together may have the effect of people resolving their cases. Not exactly the spirit that Jefferson, Hamilton and John Jay fought through in the early days of the Republic but bureaucracies serve themselves.
Bureaucracy
So the bureaucracy waits for no one and everyone waits for the bureaucracy. Time-wasting serves as a damper on access to justice. People that have significant other responsibilities such as caring for infant children or elderly relatives are squeezed by the pain of Court time. Show up at this time and get stuck in the Courthouse for the entire day. It’s an unspoken policy that the Court squeezes the customers into doing something and getting out of Court. Resolving a case, pleading guilty or figure out a way to never have to come back again. That is not justice. I overstate the case for the purpose of this blog. Sweating Court customers with unreasonable positions is a principled strategy to move a case and the entire system along. I put a fine point on this and say treat people right first. Treat their time with respect first. After the customer has absorbed the Court’s procedures and been given every reasonable chance to take the advice of paid or unpaid counsel, let the Court customer bear the weight of preparedness and procedural compliance.
After the customer has been given chances through video conferences to answer certain questions, to take certain positions, to submit evidence, to work diligently to resolve the case then drag them to the Courthouse and sweat ‘em. I’m all for that and some people will need that. The point here is that not everyone needs that. Indeed, many cases get stuck because people don’t know, what they don’t know. A system designed and run by highly trained and experienced professionals Court staff, judges and lawyers tends to not align well with outsiders. If you are going to have one or two contacts with the judicial system in your life, how much time will you spend getting to know your system? Not much. If you have funds for a lawyer, your lawyer will take care of it. If you are unable to retain counsel you will need to self-educate. You will need to spend enough time and to muster enough emotional intelligence to power through what seems like an impossible mission. You will need to learn enough jargon, procedure and cadence of Court proceedings. Evolution does not work that way.
The coronavirus does not hand the system over to the customers. The reborn Court system hands the customers tools and of a manual written in simple and straightforward language that the customer needs to absorb. Video courses are made available to Court customers. The critical information to make good decisions and good presentations is dispensed to all Court customers, rich or poor, represented or not. Time invested before one becomes a Court customer yields enormous time savings to the Court system and its customers. Coronavirus kills the Courts and produces a better educated customer.
Everything is getting smarter
Our doorbells are amazing video cameras beaming high quality videos across the globe. Cars are supercomputers on wheels that drive themselves, park themselves and perform maintenance on themselves. Smartphones are global positioning systems, flashlights, amazing video recorders and cameras and part of our brains. Courts have been very slow to get smart. The world is getting smart and fast.
Smart justice means decisions will be made in concert with artificial intelligence (“AI”). Logarithmic decision-making is a river running underneath all decisions. Even the Courts have allowed logarithms in, although grudgingly. Bail reform is all about a fairly simple logarithm. Releasing a person upon arrest is determined by artificial intelligence calculating risk and giving the accused a score. A certain score means release; a different score means incarceration. This is a big deal to the accused and we have all accepted that the scoring system is good for society. There is a trapdoor of course, when a prosecutor believes the logarithm is wrong, thoughtful human intervention is available.
All Court decisions will be made by artificial intelligence or in concert with artificial intelligence. Law enforcement uses big data to track shady stock trading, money laundering and financial fraud. DNA and facial recognition tools are highly powerful and far more reliable than human hunches and eyewitness testimony. Logarithmic bail determinations are the mashup of machine decision making based upon human collected data. What other decisions can be made by artificial intelligence?
Virtually all discovery disputes can be resolved by artificial intelligence. Why should judges have to sign orders about exchanging paperwork and granting discovery extensions? Is that a good use of our highly skilled and experienced judges?
Why should judges calculate child support? Court staff and lawyers and Court customers may need to provide the information for inputs but the rest is automation. Why should judges or Court hearing officers have to spend time calculating child support arrears and interest? This is child’s play for artificial intelligence.
How about sentencing? Why is there variability in sentencing? Some defendants are nice and well-dressed and smell good? Some have a swastika tattoo on the four head that influences the sentencing decision? AI doesn’t care about how you look, smell or dress. AI follows the law.
Smart justice also means judges spend time learning performing highest level work, resolving the most difficult cases and building up the law. Judges should be thought leaders. The development of the law ought to be shepherded by judges focused on facts and law. Judges relieved of administrative duties will be left with the time and mental energy to advance equality and speed of Justice.
It is absolutely true that justice delayed is justice lost. My original mentor Judge Thomas O’Brien https://www.bathweg.com/hon-thomas-e-obrien.htm would often say “Very few cases are like fine wine. The longer they age the more they turn to vinegar.” The decision-making process ought to be predictable and logarithmic. I can ask for an adjournment of one lawyer friendly judge and it is automatically granted. Another judge with an arbitrarily rigid mindset will deny the adjournment and force me to spend client time and money litigating a postponement so that I can litigate the substance of my clients case from a position of fairness. Court customers deserve to have their cases presented when they are ready.
The dumb system does little to nothing to track the lawyers who scam the system and postpone every case. Failure to root out the consistent “flies in the ointment” is a weakness in the Court system. A simple AI can manage the schedule including weighing the workload of individual lawyers and law firms so that “frequent flyers” don’t waste everyone’s time and busy practitioners are not overloaded with Court appearances.
The Smart Court makes that job easy. A reasonable postponement logarithm is set up and once you’ve maxed it out there are no more postponements. Justice delayed is justice lost and smart Courts can run the postponement game smarter and more fairly than humans.
Discovery
Discovery has been automated for big litigation for years. Automation inside the Court generates a discovery schedule automatically and lawyers have a reasonable bite at the apple to amend the schedule. The smart Court sends out reminders and holds the lawyers and Court customers accountable for the schedule they agreed on. If things have gone sideways everyone can communicate with the discovery robot who has parameters for extending discovery and, of course, for a trapdoor for judicial intervention if required.
Get rid of discovery disputes and count how many civil litigation cases will be handled with zero judicial intervention. Certainly in Smart Court land no one comes to Court until their case needs to be in Court. Discovery issues never make it in the Court’s door. Coronavirus kills the Courts and smart Courts arise.
Smart Courts handle most simple applications through artificial intelligence including lawsuit threshold cases. Lawsuit threshold cases may be automated – set up a logarithm that identifies whether the plaintiff has the nature type and extent of injuries sufficient to breach the lawsuit threshold. No motion practice is required. Plaintiff submits the information and the robot determines if the case goes forward or not. Of course everyone has the right to appeal to a human judge. A busy civil judge may have 100 motions to adjudicate. (85) are discovery, (5) are lawsuit threshold issues and the rest are other substantive issues. The artificial intelligence solutions tackle 90 of the 100 motions. The bulk of those will be resolved with finality. A few will need the judges attention. Either way you’re taking perhaps 2 days of work and boiling the judge and law clerk’s missions down to 1/2 day.
This Sounds In-human
Good humans are fallible. The “morning person” judge makes great decisions in the morning and not so great decisions in the afternoon. The hungry judge makes a different decision when well rested and well nourished. Robots do not make bad decisions because of poor sleep, a fight with a family member or a medical condition like a human judge. Robots don’t get tired and bored of doing the same rote things over and over again. In Smart Courts judges handle the important, the complex and the human. Litigants are always free to jump out of the Court system. There is mediation, arbitration, private judging and just plain old sitting down and resolving important disputes always available to customers of the Court system. No one forces you to use Smart Courts in the United States.
Need an example – In 2019, China’s Supreme People’s Court adjudicated 3,100,000 Internet/digital disputes via artificial intelligence with human judges serving as only as backup for major rulings. The system runs 24 hours per day 365 days per year – that is the Smart Court. AI shock: China unveils ‘cyber Court’ complete with AI judges and verdicts via chat app.
Coronavirus kills the Courts and artificial intelligence decides cases 24 hours per day.
In the throes of the coronavirus pandemic Courts are rebuilding a system of justice on the fly. Herculean efforts by judges and Court staff, lawyers and Court customers have kept things moving albeit in a clunky and inconsistent leaps. Courts share a culture of being sturdy and reliable. Courts are open to resolve disputes. It is the time to be extremely proud of our Courts. This is a time where the Courts have pivoted and refocused on achieving the dual goals of justice and due process. As enthusiastic as you will find me about rolling out Smart Courts, I am in pain.
I feel that there is the potential for due process to be limited by the obtuse rollout of technology. This smacked me in the face when I conducted oral argument on some important motion with a very animated judge. Let’s call him Judge Camacho after the great and flamboyant boxer Hector Macho Camacho. Judge Camacho was an accomplished trial lawyer and a very well thought of judge. He will spar with lawyers on the record and has no qualms about pointing out inconsistent arguments. Judge Camacho is a strong visual learner. He is a terrible factfinder over the phone. He simply cannot stop interrupting the arguments of counsel for the answers of Court customers. The recorded proceedings are virtually worthless. People talk over each other. He asks questions and then interrupts the answers. He opens the door for a comprehensive presentation and then comments during the middle of it. The Judge is not being rude. He is not wired for telephonic argument. Add a rabid adversary to this and all I hear is a garbled mishmash of words and sounds.
Again, we are building a system of technology in the middle of the desert with few technologists and no ability to come together and bring the technology, technologists judges, Court staff, lawyers and Court customers together. It’s being stuck together in the middle of a pandemic war zone. This is not blaming, but in examining why Courts do what they do; due process in the administration of justice remains a critical, strong constitutionally protected concept.
Oral Advocacy
Why does this matter? Effective oral advocacy is a relatively small part of representing a client in Court. Pleadings, motions and legal briefs matter way more. Issues that can be resolved through discussion among the parties and lawyers is the preferred way to narrow disputes. When the curtain opens for oral argument, certain things are critical. Basic argument rules need to apply. The plaintiff goes first and the next party goes and so on. There will be reasonable opportunity for rebuttal. Judges who must, both control the atmosphere of fairness and render decisions are of course welcome participants in oral argument. Asking questions at the beginning of a session or recapitulating parties positions at the end of argument serve as effective bookends.
Judges or Court staff talking through the presentations of counts all or Court customers, however, garble the record leave the participants feeling very hollow and frustrated. The worst thing we can do as a system of justice is leave people feeling like they did not have their day in Court.
Photo by Timothy L Brock on Unsplash