Minor Note: How to Gut the Legal System

Make it obligatory that every litigant represent himself and plead his own case.

Attorneys could still exist, of course. They would research the case, find the relevant case law, prepare arguments and findings, coach their client.

But then he would have to deliver the argument himself.

This would strangle off the flow of weasel-language from the legal code to the lawyer to the jury (as moderated by the judge). Legislators can only write weaselly laws if such laws can be presented to juries in some way that the average juror will find meaningful. The jurors themselves cannot possible understand the U.S. Code; but a lawyer can function as a sort of translator-cum-priest, mumbling in the sacerdotal language and, with great rhetorical cunning, enunciating and emphasizing just enough to get the general idea across.

But there is no way that someone who didn’t understand the law could both stay within its bounds and speak convincingly about it. (This is why self-representation typically ends poorly.) The lawyer cannot just give his client his notes and expect him to make the closing argument. He can’t even prepare the kind of closing argument a lawyer would give, and expect his client to memorize it verbatim. Even if the client’s memory were up to the task, he would fail to enunciate, articulate, emphasize, and generally to practice good priestcraft. You need law school (and plus maybe a few internships) to get good at that.

So again, you would not need to abolish the division of labor in the legal system. Litigants could still hire lawyers to handle the busy work and get a handle on the facts of the case. But the legal principles the laws hinge on would have to be explained by a non-lawyer to non-lawyers. The maximum legal complexity that can be communicated across this channel would be slender, so once self-representation was made mandatory the outcomes of most cases would correspond pretty closely to what an ordinary man would assume was in the law after having skimmed the key sections.

At that point, discretion being the better part of valor, legislatures would be forced to simplify the laws so that the contents of each title are what an ordinary man would assume after skimming the key sections.

If that form of rationalization-by-fire could be achieved, it might turn out that trial-by-jury isn’t such a terrible system after all. Even direct election of judges is more logical considered as an exercise in choosing an impartial moderator for legal proceedings. It is the sacerdotal obscurity of the code which judges and lawyers use to jointly control juries that makes the judges who interpret that code into priest-administrators. No more sacerdotal complexity, no need to burden the voters with spotting the holiest of the judicial candidates.

This may sound like a thought experiment, but I’m thinking of it more as a socio-political dirty bomb. One key question (for Americans) is whether the constitutional right to counsel includes a right to have an attorney represent one in a criminal case or whether one is only entitled to whatever form of “Assistance” would be typical in the case. The commonsense reading is that, where representation pro se is atypical, every defendant should have an attorney (who will represent him). But if representation pro se were mandatory, then there is no class of defendant being denied some form of assistance others lack. —— If it’s impossible to reform the criminal code in this way, it should still be possible to introduce this principle in civil cases.

This shouldn’t be too hard to sell. Everyone hates lawyers. The populist appeal is strong enough to get at least a few opportunistic Democrats to back it rhetorically while it’s still “impossible”. And impossible things have a funny way of working themselves out.

 

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3 thoughts on “Minor Note: How to Gut the Legal System

  1. Another excellent practice of the Greeks was that if the litigant did not get at least 20% of the jurors votes (which on average had around 501+ jurors) he typically got a hefty fine of 1000 drachmas (a drachmas being a day laborers wage), and in severe cases could be himself prosecuted for the crime of sycophancy. This greatly discouraged frivolous and malicious lawsuits.

    Liked by 1 person

    1. That’s an interesting point – for some reason we have never really worked a sliding scale of legal victory into the jury system! Maybe if we doubled the size of the juries to shield people from outlier-jury pools we could implement something like that. (Of course, the other issue is that the Greek jury was truly (self-)representative of the citizenry, whereas the whole initial stage of our trials is a war of attrition over the demographic characteristics of the jurors.)

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