But if you listen to Thomas Wells Jr.'s public statements--and if you have some personal experience with the real ailments of our justice system (as I, unfortunately, do)--you might see the new ABA head as a grandstander who isn't interested in making substantive change.
Our impression at Legal Schnauzer is that Wells, like many of his professional colleagues, is more about protecting the interests of lawyers and less about doing what's best for citizens--or our struggling republic.
This post is not meant as an across-the-board condemnation of lawyers. Heck, we spend much of our time in SchnauzerWorld standing up for lawyers--Don Siegelman, Paul Minor, Wes Teel, John Whitfield--who have been the victims of wrongful prosecutions. Two of the biggest heroes in SchnauzerWorld--Scott Horton and Jill Simpson--are lawyers. In fact, I think it's safe to say that we never will get to the bottom of the Bush Justice Department scandal without the smarts, courage, and toughness of noble and honest lawyers.
But there is a flip side to all of this. Siegelman & Co. were prosecuted mostly by dishonest lawyers. And the Bush DOJ was turned into a sewer mostly by dishonest lawyers.
On a personal note, my wife and I have seen our lives turned upside down by unscrupulous lawyers and judges.
So let's consider what H. Thomas "Tommy" Wells is saying as he takes over at the ABA. Wells, by the way, is a founding partner at the Birmingham firm of Maynard Cooper & Gale. He is the third Birmingham resident to head the ABA; the others were Henry Upson Sims (1929-30) and N. Lee Cooper (1996-97).
What issues is Wells pushing?
* He wants to promote diversity in the legal profession. No problem there. I'm sure that's a legitimate issue and needs to be addressed.* He wants to make sure that everyone has access to fair representation, especially the indigent. That sounds good, but my impression is that legal services already exist for the poor and indigent. And the wealthy probably don't have a problem finding representation. But what about the middle class? Does anyone know how quickly a middle-class family can be wiped out when they have to pay a lawyer $400 an hour? I've yet to hear Wells or any other leader in the legal community raise this issue.
* He says he wants to reduce partisanship in judicial elections and promote the rule of law in our courts. These are both noble goals. But then Wells undercuts his argument by saying . . .
* He wants to preserve judicial independence and the legal profession's independence.
We already have an independent judiciary and a self-regulating legal profession--and both concepts have been colossal failures.
The truth, which Wells evidently does not want to face up to, is this: As long as judges essentially answer to no one and lawyers police themselves, we will continue to have a corrupt justice system.
Why was Don Siegelman wrongly prosecuted and sent to federal prison for nine months (pending appeal)? Why are Paul Minor, Wes Teel, and John Whitfield currently in federal prison while their appeals are heard?
There is no one answer to those questions. But here are two huge factors:
* Federal judges Mark Fuller (in Alabama) and Henry Wingate (in Mississippi) have lifetime appointments, and no one really oversees what they are doing. Oh, appellate courts can review what they did and perhaps overrule them. But do Fuller and Wingate fear any personal consequences for violating their oaths to uphold the law? Not really. Who's going to punish them for intentionally making unlawful rulings? No one.
* Federal prosecutors Leura Canary (in Alabama) and Dunn Lampton (in Mississippi) had no fear of personal consequences for handling cases where they had clear conflicts. Who's going to hold them accountable? Alberto Gonzalez? Michael Mukasey? Don't make me laugh.
And let's consider another problem that Wells apparently doesn't want to deal with: If you can pay the filing fee, you can sue anybody for anything--no matter how ridiculous--in the U.S. of A.
There is no standard you have to reach--no level of quality or legitimacy your case must attain--in order to file a lawsuit.
If you can find a lawyer who will file it, you're on. If you can figure out how to do it yourself, you're on. And you or your attorney are unlikely to face any consequences if your case happens to be totally bogus. The other party might get your bogus case dismissed fairly quickly. But they probably will have to hire an attorney and shell out at least $2,000 or $3,000 to defend it. You, meanwhile can walk away with the satisfaction of knowing you've caused someone a headache.
Even bogus cases, however, are not always dismissed when they should be, by law. I know that firsthand. Consider the following scenario:
You and I are acquaintances, and we pass each other at a party. I say hello, but you don't see me and pass without speaking. I decide my feelings are irreparably bruised, so I call an attorney friend who also happens to be my gambling buddy. "Hey," my attorney friend says, "let's sue that SOB for causing you emotional distress. We'll wring some cash out of his insurance company and use it to go on a trip to Vegas. And hey, I play golf all the time with one of the judges, and we can make sure he gets the case. He'll drag the case out so long that your unfriendly SOB will be begging us to take his cash. We might have to cut the judge in on the action, but it'll be worth it for a free trip to Vegas."
This all sounds good to me, so I sue you for hurting my feelings at the party--intentional infliction of emotional distress, my attorney calls it.
My fictional scenario might sound ridiculous. But trust me, it has more legal merit than the actual lawsuit that was filed against me. And I suspect my little fictional scenario--or scenarios very much like it--take place in our great country all the time. How do we all pay for this? Take a close look at your homeowner's insurance bill next time it comes in the mail.
What to do about this kind of corruption and waste? How do we truly repair our broken justice system?
Well, I'm not going to pretend that I'm qualified to answer such questions. But hey, this is my blog--and if you can't spout off on your own blog, where can you spout off? So here is our Legal Schnauzer Rx for what ails America's legal profession.
My general suggestion? Get regular citizens, non-lawyers, heavily involved in the process.
Lawyers have proven that they can't regulate themselves, so let's stop pretending that they can. Most bar associations scare lawyers about as much as Barney Fife scares the criminals of Mayberry. And most judicial inquiry boards scare judges about as much as Otis the Town Drunk scares the criminals of Mayberry.
We need citizen boards with the power to disbar, impeach, fine, spank, apply wedgies, and recommend indictments for wayward lawyers and judges. Obviously these boards will need to be trained by honest lawyers (perhaps law professors?). And they will need lawyers available for advisory purposes. But citizens need to be the ones who determine if lawyers and judges are following the law. And citizens need to be given the teeth to bite bad lawyers in the britches--until it hurts.
I nominate Jill Simpson and Scott Horton to implement the Schnauzer plan across the nation. (Assuming they agree with me, of course; but I know they are smart people, so surely they will agree with me.)
Here's the plan:
* Every county/jurisdiction in the country needs a citizen board that reviews lawsuits to determine if they have enough merit to move forward into the courts. If they do not, the lawyer/citizen who brings them is fined. A lawyer who brings too many of these is suspended;
* For lawsuits that do move forward, citizen boards will review the actions of judges and lawyers to make sure the law and procedure are being followed. These boards will have the authority to heap a serious hurtin' on wayward members of the legal profession;
* Similar boards need to be in place for criminal cases;
* Statewide boards will oversee appellate courts. Don't assume that the higher up you go in the justice system, the more likely it is that judges will be honest. Some of the biggest crooks of all sit on appellate courts. And in many states, they have this nasty little tool, a no-opinion affirmance, that allows them to sweep trial-court wrongdoing under the proverbial rug. All rules that allow no-opinion affirmances should be overturned;
* I'm sure I'm leaving out some good ideas, and I welcome input from readers. But here is the big kahuna of all possible remedies for our justice system--the one that sends many lawyers, and all judges, into spasms of fear. The remedy? Doing away with judicial immunity. Most Americans probably don't know this, but no matter how badly a judge cheats you in court, you cannot sue him for his judicial actions. This is because of the doctrine of judicial immunity. Folks like ABA President Tommy Wells will tell you that this doctrine is essential to maintaining an independent judiciary. Legal Schnauzers like me will tell you this doctrine is a license to cheat. And way too many judges take advantage of this license. A California-based organization called Jail 4 Judges is pushing a Judicial Accountability Initiative Law (J.A.I.L), which would take judicial immunity and show it the door--and I'm about 85 percent sure the JAILers are right. J.A.I.L is the brainchild of a fellow named Ron Branson, and he might be the most hated man in America among all judges and many lawyers. That means I think Ron Branson is a pretty good guy. We will discuss judicial immunity--a concept that has an intriguing history--and J.A.I.L. in an upcoming post. Like I say, I'm not sure J.A.I.L. is the best way to go. But Branson impresses me as a serious guy who has given serious thought to a serious problem. His voice needs to be heard, and his ideas should be on the table.
As for the ABA, I find it ironic that its new president is from Alabama. Perhaps the worst miscarriage of justice in a criminal case over the past few years is the Don Siegelman case. Where did it take place? Alabama. Perhaps the worst miscarriage of justice in a civil case over the past few years was the ExxonMobil ruling that overturned most of a $3.6 billion verdict against the oil giant and its record profits. Where did it take place? Alabama.
I wonder if many members of the ABA seriously think a lawyer from Alabama, particularly one from a mainline Birmingham firm, is likely to lead the legal profession into an Age of Enlightenment.
I doubt it.