More On Judicial Transparency

We’ve written a number of times about the benefits of judicial transparency.  In an interview published in the July 2014 issue of the ABA Journal, U.S. Court of Appeals for the 7th Circuit Judge Richard A. Posner weighs in.  Judge Posner is a prolific, well-respected member of the federal judiciary.  His books include Economic Analysis of Law, The Economics of Justice, The Problems of Jurisprudence, Overcoming Law, The Problematics of Moral and Legal Theory, and How Judges Think, and he has written a number of articles in journals and popular press.  He is also faculty at The University of Chicago School of Law.

In 2012, Judge Posner wrote an article in the New Republic, titled The Incoherence of Antonin Scalia, which reviewed Justice Scalia’s book Reading Law.  On the heels of that article Judge Posner explains his views on judicial transparency:

Judge Richard Posner at Harvard University - Courtesy of Chensiyuan

Judge Richard Posner at Harvard University – Courtesy of Chensiyuan

I don’t understand why the judiciary should be the most secretive branch of government. The public probably knows more about the CIA than about the judiciary. There are few secrets in the executive branch. Everybody leaks. And Congress—they’re totally exposed. But judges have the most extraordinary gift for secretiveness. Why should that be? Why should judges be able to conceal so much from the public?

But Judge Posner makes clear that judicial transparency is not “airing dirty laundry”:

[I]t’s about the public having a realistic understanding of the strengths and weaknesses of the judiciary.

He believes that judges are good at impartiality (not holding an obnoxious lawyer against the litigant), but they are not good at preventing their own ideology and personal experiences from influencing their decisions.  According to Judge Posner, “[t]hat’s the real danger.”  And he blames the lack of information to make informed decisions (having to rely on the facts presented) for judges falling back on deciding cases based on how they “‘feel’ about the case.”

LPR applauds Judge Posner, and we hope that with the example of a senior, well-respected judge opting for transparency, more judges will follow.  Legal consumers and the public can only benefit from a more transparent judiciary.

Editor’s note: We are happy to report that U.S. District Court for the District of Nebraska Judge Richard G. Kopf, author of Hercules and the Umpire blog, has decided to resume his postings.  LPR blogged earlier about Judge Kopf’s stepping back from the blogosphere after his post suggesting the U.S. Supreme Court “stfu” and the ensuing controversy.  You can read his reasoning in his recent post, “We can easily forgive a child who is afraid of the dark. The real tragedy of life is when men are afraid of the light.”  Welcome back, Judge Kopf.

 

 

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Attorney Tip #6 – Be Upfront

When a client brings you a matter that will likely result in fees higher than the matter’s value, do you advise him/her of that fact?  If you hesitated to respond “yes,” even in the slightest, this tip is for you:

Document4I’ve seen this recycled crap too many times in my career: client is mad about a business transaction gone sour, law firm takes money to help client vent that anger through the legal system, client pays fees that accomplish nothing, and case ends with an angry client and a firm that is indignant about getting its fees paid. It should never happen if you’re giving your clients sound advice.

This comment, by “Jaded,” is in response to the abajournal.com article, Firm sues ex-client over Yelp review that claims firm will ‘take everything you’ve got.’  The article chronicles an attorney/client relationship gone bad.  The client hired the Texas law firm to handle “a simple breach of contract case” with allegedly favorable facts.  The client “let the suit go” after the attorneys billings were higher than the claim value.  The law firm sued the client for attorney fees, and the client posted a negative review on Yelp.com.

“Jaded” posed a number of questions that all lawyers should consider before taking a new matter that may have a questionable cost/benefit ratio.

Why did the law firm accept a case that incurred more legal fees than the value of the claim? This was a particularly unwise decision by someone. Did the firm explain its lack of wisdom to the client before it happened?

He also provided a good tip in these types of situations:

It’s good business practice in my opinion for a law firm to counsel such a client that their assumption [of 100% recovery plus legal fees] is flawed, that their expectation is improbable, and that hiring the firm is probably a waste of resources. At most, a good firm will advise, the client should invest only in a basic demand letter and see what happens next. The budget should be put right on the table. The retainer amount should far exceed the first month’s expected bill, so that the client’s treasurer and maybe other officers will be forcibly put on notice of the true expenses the risk adjuster has committed the company to.

He may be “Jaded,” but his words are wise indeed.  All attorneys should remember that while representing clients is a business endeavor . . .

THE LEGAL PROFESSION IS A SERVICE PROFESSION

. . . and attorneys are service providers.  Attorneys whose ethic embraces these notions are applauded by LPR.

You’ve got options. The Center for Legal Practice Reform can help you navigate the attorney/client relationship and level the playing field. Call LPR today for a free consultation – (301) 351-7970.

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STFU? Does Judicial Blogging Harm The Legal System?

Senior U.S. District Court Judge Richard Kopf and author of the blog, Hercules and the Umpire, recently made national headlines for his post titled, Remembering Alexander Bickel’s passive virtues and the Hobby Lobby cases.  In the post, Judge Kopf addressed the political side of the United States Supreme Court Hobby Lobby opinion and made the following provocative suggestion:

As the kids say, it is time for the Court to stfu.

Richard_G._Kopf_District_JudgeFor those not familiar with the vernacular, stfu means “shut the f_ up.”

In a post that shortly followed, titled Please stopJudge Kopf reprinted an email from a local lawyer urging him to stop blogging because “blogging by judges harms our [legal] system significantly.”  The numerous comments that follow the post raise the question: Does blogging by judges harm the legal system?

LPR has written extensively about the need for transparency in the law.  And we have blogged twice about Judge Kopf’s refreshing transparency and self-awareness.  For the handful of commentators who agreed that the judge should hang up his blog, there were dozens of the judge’s supporters:

  • We [young lawyers] don’t necessarily agree with everything you say, and sometimes I think I am the only one of my colleagues to get your humor, but we all believe that less transparency, less communication, less humanity can never lead to a good thing. The only thing that secrecy and rote authoritarianism engenders is resentment and closeted disrespect. (Anonymous (J. Law))
  • I was in seminary before attending law school, and the processes were remarkably the same: the inculcation of a special way of thinking, a feeling of intellectual superiority, and the desire to keep it all secret lest the plebians see that we are, indeed, merely human. In the church, this has had terrible consequences now coming to light. In the judiciary, the consequences have been comparably devastating. (Randall E. Winn)
  • In my opinion, by blogging your mind and heart on issues removes a big layer of mistrust that the public may hold for the judicial system. Judges are not meant to be infalable. If more judges could only learn from you that it is ok to sound human…. (Heath)
  • I think in modern society, it’s a good thing to be aware that courts are getting it wrong, because you can fix a system that you know is broke, but it’s impossible to fix one where everyone keeps trying to create an illusion of perfection from within. (Kenneth R. Burger)
  • I understand both sides of this argument, and objectors are arguing we should continue with the secrecy for the appearance of impartiality. In some respects it reminds me of the way people treated doctors decades ago. (traderprofit)
  • This critic appears to suffer from the same misperception that characterizes so many that are effectively a part of “the system.” They presume that the public doesn’t know any better. (nobody)
  • Your frank observations are needed and perhaps other Judges will gather the courage to follow in your footsteps. (Jay Kelligesqw)

But commentator E. Hines summed up the best:

As you are aware, I’m not a lawyer or a judge, but I am one of those members of the public about whose sensibilities your correspondent agonizes at such length.

His email is insulting. It insults my intelligence, and it insults the intelligence of my fellow Americans, whether or not they’re legal professionals . . . How does the legal profession expect us to trust a judge who hides behind the sanctity of a secret guild with its unique jargon, entering before us only to issue pronouncements?

So to the question whether blogging by judges harms the legal system, LPR poses that it does not.  And, as the multitude of positive comments indicate, it may be a way to reboot the system in the eyes of the public.

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If It Can Happen To Dan Rather . . . It Can Happen To You

In Chapter 10 of his memoir, Rather Outspoken: My Life In The News, famed news reporter Dan Rather discusses his 2007 breach of contract lawsuit against CBS for removing him from the CBS Evening News anchor chair.  Mr. Rather’s experience with the legal system is a cautionary tale for legal consumers.

110726-F-HS721-308Mr. Rather writes that his removal from the anchor chair was in response to his September 8, 2004 Sixty Minutes Wednesday broadcast about President George W. Bush’s Texas Air National Guard Service and reported “lengthy unexcused absence.”  In an effort to find the truth, Mr. Rather consulted his friend and attorney, Martin Gold, about his legal options:

I started having conversations with my friend Martin Gold, a good and decent man and an excellent attorney, to see what my opinions might be. ‘More than anything,’ I told him, ‘I want to find out what happened. Tell me how this would work.’

‘Expensively,’ he said simply.

Mr. Gold advised Mr. Rather of the enormous cost and time commitment.  When Mr. Rather asked, “Do I have a case?” Mr. Gold had the following response:

Yes, but they will have good lawyers who will mount a vigorous defense. Once you file, they will be relentless. And it won’t just be in the courtroom – it’s possible that they will delve into your personal life, and that of your family. . . . They will harness every ounce of media power they have to make you look bad. Beyond that, they will do everything they can to spend you into oblivion. It’s not that CBS has deep pockets, . . . It’s that they have bottomless pockets.”

But Mr. Rather, after much soul-searching, writes that he was clear on his motivation for filing the lawsuit:

For me, however, the suit was never about the money, and it was never about vengeance. . . . I filed the suit on principle – to find out the truth and to stand up for the importance of a truly independent free press in a democracy.

The lawsuit proved to be most of what Mr. Gold predicted.  “Documents by the tons” were exchanged, which required page-by-page redacting, copying and labeling.  “It cost a fortune.”

But in the end, right or wrong, Mr. Rather did not have a case, and he did not get his day in court.  CBS filed multiple appeals before trial challenging the trial judge’s rulings. Shortly after the trial judge indicated the case was going to trial, the appellate court ruled that because CBS paid Mr. Rather in accordance with the contract, the “pay or play” provision allowed CBS to do so without obligation to “use [his] services or to broadcast any program.”  And with that, the case was over.

Mr. Rather makes clear, however, that he didn’t regret bringing the case.

I was of course disappointed by what happened. Nevertheless, I have never second-guessed myself about the decision to go to court. It took a big whack out of my time, my psyche, and my bank balance, but even so, it was worth it. The suit accomplished much of what I set out to do.

Legal consumers should take note.  As we have stated many times before, litigation is expensive, time-consuming and emotional, and justice is not always just.  It is important to understand that the costs of litigation can outweigh the benefits.  And if you are embarking on litigation to seek the truth of a wrong, be sure the quest is worth the price of the worst case scenario.  Because, as Mr. Rather discovered, the price can be high.

 

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Time To Check Beneficiaries?

LPR does not write about the law, as we are not a law firm.  But the story of a man who reportedly intended for his retirement to be distributed to his four children after his death — which because of a mistake on his beneficiary form didn’t happen – is something we feel compelled to bring to legal consumers’ attention.

TO DOLeonard Smith enlisted the help of financial advisors and attorneys to ensure that his children received his retirement savings upon his death.  After his death, the children discovered that his IRA beneficiary form had been filled out incorrectly.  Rather than listing the children by name and designating percentages to each, the beneficiary form read: “To be distributed pursuant to my last will and testament.”  The children brought a lawsuit contesting the designation.  The result was that Mr. Smith’s spouse of two months received the retirement funds.

In an article titled “Man’s mistake cost his children $400,000 of an IRA inheritance,” certified estate planner Jean-Ann Dorrell offers the following tips:

1) Set aside time at least once a year to update your beneficiary forms. Your beneficiary forms will override your will 99% of the time so it’s important to keep these forms up-to-date and make sure your will and your designated beneficiaries on accounts don’t contradict each other. You should fill out a new form if you’ve had a birth, death, marriage, or divorce in your family. If you can’t find your beneficiary designation form, ask the financial institution for a new one. If you choose to fill out this form online, make sure to print a hard copy for your files.

2) When filling out a beneficiary form, don’t forget to designate percentages next to the names of your beneficiaries. You can also write “in equal shares” if you want the assets to be distributed equally. Also know that writing “per stirpes” which is Latin for “bloodline,” will make sure that only someone in your bloodline will get your assets.

3) If the institution where your money is held changes its name or merges with another bank, fill out a new form. Forms with old institution names may not be valid and the banks won’t go out of their way to tell you.

4) Keep hard copies of your beneficiary forms, including your “payable on death” forms and your “transfer on death” forms in your emergency file. If all of these forms are in your account online, keep hard copies on hand because computer systems change and the forms might be hard to track down, especially if the bank has merged or changed names.

These are great tips indeed, but the highlighted part of Ms. Dorrell’s next tip is near to LPR’s heart:

5) Consider hiring a certified estate planner who is licensed in your state. Many financial planners and attorneys who do not specialize in estate planning can make mistakes when filling out forms because of state-specific rules and laws, or just plain lack of experience.

The moral?  Be informed so you can protect yourself and your loved ones.  Ask lots of questions and think critically about how present decisions can affect future events.

You’ve got options.  The Center for Legal Practice Reform can help you navigate the attorney/client relationship and level the playing field.  Call LPR today for a free consultation – (301) 351-7970.

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If All Lawyers Spent Time As Clients . . . Maybe The System Would Be Better

We stumbled on an article about a doctor’s eye-opening experience spending time as a patient, and it got us thinking: what if all lawyers spent time as clients?  Perhaps the best way to see how the system affects those who are at its mercy is to stand in their shoes.

ERThis is a lesson that Dr. Daniel Spogen learned after a trip through the emergency room of the Reno, Nevada hospital where he worked.  In What Happens When a Doctor Becomes the Patient?, Dr. Spogen details his grueling ordeal as a patient after getting thrown from his horse, including the following highlights:

The medical assistant at the [Emergency Department] bay grabs my shoulders and chest and pivots me into a wheelchair. Well, I guess this is good test to make sure I don’t have a spine injury. I almost pass out from the pain.
The assistant asks what happened, and I am able to say, “Horse accident, blunt trauma LUQ, near syncopal.”
She gives me a quizzical look and says, “Would that be trauma?”
“Yes, that would be trauma.”

*     *     *

I am informed I can’t have anything for pain because of my allergies, but I eventually talk them into Toradol.

*     *     *

I am told that the trauma surgeon was called for a motor vehicle accident, and it will be a while before I will be seen. Five hours later, the surgeon enters the room laughing. “I bet you are in pain, aren’t you?”  Hilarious. Luckily, I don’t have a fractured spine or spleen.

*     *     *

I finally call to ask the nurse for pain meds. She answers on the intercom that she will be right with me. Two hours later, she arrives and wonders why I refuse the medicine. The thing about broken ribs is that if you don’t cough, sneeze or move, the pain goes away.

Dr. Spogen’s visit to the hospital was a wake up call for him and led him to question whether the medical system could be made better if those in the medical field spent time as patients.

I am a respected doctor who works every day in this hospital, yet look how I was treated. I now understand why some of my patients are upset with their hospital care.

It was a good lesson for me, however. I will handle my inpatients differently in the future . . . . My students and residents will hear about my experience, and they will know the issues patients face.

As a physician, I knew when my treatment was not ideal, but most patients do not have this same knowledge. Maybe if all doctors and nurses spent some time as patients, we could make the system better.

Dr. Spogen’s article got us thinking as well.  What if all lawyers spent time as clients? Would that lead to change in the legal system?  Would it make the legal system better? We think so.  We think it is human nature that until you actually stand in someone else’s shoes, you don’t really see things from their perspective.  We think an attorney/client role reversal could do wonders.

You’ve got options.  The Center for Legal Practice Reform can help you navigate the attorney/client relationship and level the playing field.  Call LPR today for a free consultation – (301) 351-7970.

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Legal Reform Needs More Than Law Firm Innovation

In 2009, a virtual law firm named Clearspire emerged onto the legal scene with the plan to provide clients an alternative to BigLaw.  Clearspire touted high-end attorneys at lower hourly rates by eliminating physical law offices and partner profits, and by supporting their attorneys with a technology that virtually connected Clearspire’s attorneys and allowed secure remote access to case documents.  Last month, Clearspire closed it’s virtual law firm doors.

For five years, Clearspire led the charge in revolutionizing the 21st Century workplace and the delivery of legal services. We built a reengineered law firm as an alternative to BigLaw and, in the process, challenged the entrenched legal industry to think and act differently.

Our law firm was a laboratory – a proof of concept that demonstrated just how innovative today’s lawyers can be. In the process, we redefined client satisfaction, lawyer efficiency, and pioneered the model for the future of legal services delivery.

There are a number of virtual law firms still in existence professing the same or similar innovative methods that are “the future of legal services.”  But are virtual law firms the answer to what plagues the legal system?

Perhaps virtual law firms are part of the answer, but as Clearspire discovered, the solution is not so simple.  That’s because what plagues the legal system is not just hourly billing and high billing rates.  Low billing rates, for example, will not fix court procedures that result in protracted and costly litigation or unjust outcomes.  Law firm innovation, while important, will not solve all that ails the system.  The court system and clients themselves need to be part of the solution.

LPR applauds the efforts of all those who seek to innovate their part of the legal system. But true reform will take the forward thinking, candid dialogue of judges, lawyers and clients working together to identify the problems and brainstorm solutions.  Otherwise, true reform will remain elusive.

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“When Judges Err”

When judges realize their written opinion contains a mistake, should they publicly acknowledge the mistake and the correction?  U.S. Court of Appeals for the Ninth Circuit Judge Andrew D. Hurwitz answered that question in the affirmative in his recent essay for the Arizona Law Review, titled When Judges Err: Is Confession Good for the Soul?:

Judge_Andrew_D._HurwitzMy thesis is that we all would be better off if judges freely acknowledged and transparently corrected the occasional “goof.”  Confession is not only good for the soul, it also buttresses respect for the law and increases the public’s understanding of the human limitations of the judicial system.

Judge Hurwitz examined the “goofs” of a handful of judges, including himself, and the different ways the judges handled them.  The appellate court on which he presided publicly “fessed up” to a case altering mistake.  But, other judges (including justices on the Supreme Court), while fixing the error, did not openly admit the mistake.  And, some judges admitted the error, but failed to change the case outcome accordingly.  Ending his article with examples of judges who “[did] it right,” Judge Hurwitz provided examples of judges who took full responsibility for their errors, admitted so in the subsequent written ruling, and remedied the result.  In the final analysis, Judge Hurwitz concluded that judges make mistakes, and when they do, they should correct them transparently.

Judges hold a special place in our society and system of government, and they are afforded special privileges commensurate with their status. . . . But judges are not infallible. We make mistakes.

*     *     *

But, whenever judges learn of significant mistakes that affect the outcome of a case, there is value to correcting them transparently.  Correcting errors is not only required to do justice, but reemphasizes a sad but important truth–that although almost all judges try very hard to do their best, we sometimes fall short.

Judge Hurwitz provides judges much food for thought.  But his article provides an important truism for legal consumers as well:

Citizens should understand that not every case comes out right, whether decided by a lay jury or a learned judge.  The admission of fault not only is a strong goad to avoid future errors, but has an important educational impact on the administration of justice as a whole.

We hope all judges — and legal consumers — are listening.

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LPR’s 100th Post – Dedicated to Dr. Maya Angelou

This is LPR’s 100th post, and we want to thank everyone who follows our blog.  We thought it fitting that we honor the late Maya Angelou at this milestone, given her recent passing.

100th PostDr. Angelou was a larger-than-life human being, who taught us love, respect, humility, and integrity — all traits that we hope every judge and attorney seeks to embody.  Here are just a few of Dr. Angelou’s pearls of wisdom to help with that professional actualization:

There’s a world of difference between truth and facts.  Facts can obscure the truth.

I think we all have empathy.  We may not have enough courage to display it.

When you do nothing you feel overwhelmed and powerless.  But when you get involved you feel the sense of hope and accomplishment that comes from knowing you are working to make things better.

And for any judge or attorney who wants to do better, Dr. Angelou’s words pave the path:

I’m convinced of this: Good done anywhere is good done everywhere.  For a change, start by speaking to people rather than walking by them like they’re stones that don’t matter.  As long as you’re breathing, it’s never too late to do some good.

Dr. Angelo was inspirational indeed.  We hope the legal profession is listening.

 

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Memorial Day Gratitude

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We at LPR morn those who perished while serving in our country’s military.  We are so grateful for their service.

LPR will be closed on Monday in observance of this national holiday.

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