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Law Practice,
Judges and Judiciary,
State Bar & Bar Associations

Feb. 21, 2019

Dissolving legal barriers

On Wednesday, in the first part of this series I urged dissolving barriers among members of the legal profession. Here, I note a far more serious and corrosive divide: that between the profession and the public it is designed to serve.

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On Wednesday, in the first part of this series I urged dissolving barriers among members of the legal profession. A central goal is to avoid mistaking the concerns of our own insular group -- those of appellate or trial judges, or those of lawyers, or of professors -- for the central interests of the legal system as a whole.

Here, I note a far more serious and corrosive divide: that between the profession and the public it is designed to serve.

We know this problem. Civics education is cursory. A 2014 report found only 23 percent of eighth-graders were proficient or better in civics. In 2018, the Annenberg Public Policy Center found that only 32 percent of respondents could name the three branches of government.[1] (It's getting worse: The number was 38 percent in 2011.) Thirty-seven percent can't name any of the rights guaranteed by the First Amendment. A 2015 Annenberg survey found 12 percent of Americans thought that the Bill of Rights included the right to own a pet.[2] Judges including California Chief Justice Tani G. Cantil-Sakauye, former U.S. Supreme Court Justice Sandra Day O'Connor, and others have worked hard to respond to these deficiencies.[3]

During my 2018 re-election campaign my judicial colleagues and I faced a general lack of understanding of what judges do. Speaking to the public (not lawyers), we were met with incomprehension and suspicion when we wouldn't make promises about types of cases, or align ourselves with political stances. After all, we were running for office, were we not? Were we pro or anti tenant? Pro- or anti-development? Our promises to be fair and neutral were often seen as weak evasions. Statements that we would follow the law were sometimes taken as abdication of responsibility to "do the right thing." It was pretty tough to explain, in the two-minute sound bites we were allowed at most events, the notion and value of an independent judiciary. If in the words of Justice Oliver Wendell Holmes Jr., the First Amendment is about "freedom for the thought that we hate,"[4] then an independent judiciary means tolerating decisions that one detests. But what our various audiences really wanted to hear was that we'd favor their specific interests.[5]

The media has an uneven record. Traditional outlets such as newspapers have seen massive cuts over the last few decades,[6] and the few journalists who are left often don't have the time to specialize in the courts.

The power of the courts, and the integrity of judicial system, depend on public endorsement. That's hard without a better understanding of what judges do, their powers and constraints. We know this. But the fault is not just that of the educational system, or the media, or the end of literacy (if it is ending). It's our fault too.

Those of us in the legal profession bear some responsibility for the gap between our appreciation of our legal system and the more general public understanding.

Lawyers need to speak up. All the time. And not just for results they like. Defense counsel can explain why and how a trial sometimes results in guilty verdicts, and prosecutors can do the same with acquittals. Lawyers experienced in class actions can talk about the criteria for certification and the sometimes difficult analyses required. Courts don't need support for popular decisions; they need support for unpopular ones. Lawyers can comment on blogs, send in letters to editors, and be available to the media for comment in a way that judges cannot. Litigators translate legal doctrine to juries: They can do this outside the courtroom, too.

Courts need better public relations. The canons of judicial ethics constrain what they can say. But the word needs to get out. During my re-election campaign last year, I found that virtually no one knew of the collaborative courts and other innovations my court had undertaken. The courts of review release important opinions without comment (more on that below). In the past, some courts have conducted a media "boot camp," offering tours of their courts, meeting with judges, and providing explanations of what the various departments do; courts might experiment with this. Few in the public are aware of the efforts by those on the Judicial Council, and many others, on subjects such as bail, rules reform, legislative initiatives, ethics, collaborative courts, how to deal with victims of human trafficking, better jury instructions, and so on.

And lest anyone doubt that the legal profession is implicated in its separation from the public, one need only read a random appellate opinion to a non-lawyer friend. While some judges take care to write in plain English -- at least enough for a lay reader to get the gist of the point -- it's rare. Generations of lawyers and judges have incrementally elaborated legal lingo. Like a weird species of finch in the Galapagos islands, law language has evolved to its environment, but disconnected from a wider audience. Terms ordinary to us are a puzzle to the public: In a course I designed for pro tem judges dealing with self-represented litigants, I note words like these, impenetrable to laypeople: pro per, submitted, filed, admissible [evidence], sustained, over-ruled, cross examination, rebuttal, caption [of pleading], pleading... and so on.

Lawyers and judges employ legal fictions which are oxymorons, such as corporate "persons," and legislative "intent."[7] Our departures from common usage are flagged by words such as "deemed," "implied" and "constructive," all of which usually signal that we mean the opposite: E.g., deemed notice is where the recipient didn't get the notice.

All these widen the gulf between our profession and the public.

So, what to do?

We could explain rulings in plain English. I've tried adding a "plain English summary" in a few of my higher profile case orders, but it's hard. It is one thing to explain the weighing of factors for a preliminary injunction, but it's tough to briefly explain complex statutory analyses, or how, e.g., reverse veil piercing does or does not help in adding a judgment debtor.[8] Illinois does a nice job with straightforward summaries of its Supreme Court decisions,[9] and Massachusetts links its oral arguments to brief synopses of the issue before its Supreme Judicial Court.[10] The U.S. Supreme Court's Office of Public Information provides summaries.[11]

These are efforts worthy of emulation, but don't do much to address the underlying problem. That problem is the irreducible complexity of the law. And in our lifetimes, at least, the problem will get worse, not better.

So we need translators; intermediaries. We rely on lawyers for that work; we rely on them every day, in every courtroom.

The great divide between the public and the legal system is founded on the opacity of the legal system, experienced most acutely by those who can't afford a lawyer. People who represent themselves in anything other than the simplest cases are in deep trouble, and they know it: For them the legal system is a truly an alien world, and for some, a world of fear and loathing. Repairing the divide between the legal system and the public requires providing counsel to those who can't afford it. This is one of the most important challenges in our civil justice system.[12] Solving it will help bring the legal professions closer to -- and earn the trust of -- the public we serve.

[1] "Civics Knowledge Predicts Willingness to Protect Supreme Court," Annenberg Public Policy Center (Sept. 13, 2018).
[2] Matthew Shaw, "Civic Literacy in America," Harvard Political Review, May 25, 2017. A 2011 Newsweek survey (of unknown validity) found 70 percent of Americans didn't know the Constitution is the supreme law of the land. Devin Dwyer, "United States of Ignorants [sic]? Americans Don't Know Constitution, Surveys Find" ABC News (March 24, 2011).
[3] See, e.g., Chief Justice Tani Cantil-Sakauye's work with her Power of Democracy group, and Justice O'Connor's work.
[4] United States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J,. dissenting), overruled in part by Girouard v. United States, 328 U.S. 61 (1946). The phrase gave rise to the title of a wonderful book on the First Amendment by Anthony Lewis, since passed away, Freedom for the Thought that We Hate: A Biography of the First Amendment (2007).
[5] Some of these partisan pressures, and others, are discussed in many reports and studies. See, e.g., Alica Bannon, "Rethinking Judicial Selection in State Courts," Brennan Center For Justice (June 6, 2016).
[6] E.g., Jill Lapore, "Does Journalism Have A Future?," The New Yorker (Jan. 28, 2019) ("Between 1970 and 2016, the year the American Society of News Editors quit counting, five hundred or so dailies went out of business; the rest cut news coverage, or shrank the paper's size, or stopped producing a print edition, or did all of that, and it still wasn't enough. .... And the bleeding hasn't stopped. Between January, 2017, and April, 2018, a third of the nation's largest newspapers, including the Denver Post and the San Jose Mercury News, reported layoffs.") See also, e.g., Josh Gerstein, "Have the Media Stopped Covering Courts?," The Crime Report (Nov. 1, 2012).
[7] Kenneth A. Shepsle, "Congress Is A 'They,' Not an 'It': Legislative Intent As Oxymoron," 12 INT'L REV. L. & ECON. 239 (1992); Peter J. Smith, "New Legal Fictions," 95 GEO. L.J. 1435, 1462 (2007).
[8] Curci Investments, LLC v. Baldwin, 14 Cal. App. 5th 214 (2017).
[9] For example.
[10] See Massachusetts Supreme Judicial Court. The California Supreme Court has weekly case summaries, but usually these just list the question certified for review, not resulting opinions . For a review of these and other states' practices, see
[11] The summaries are good, but some more opaque than others. Anyone without patent experience would have a hard time with the summary of, e.g., Helsinn Healthcare S. A. v. Teva Pharmaceuticals USA, No. 17-1229 (Jan. 22, 2019) ("A commercial sale to a third party who is required to keep the invention confidential may place the invention 'on sale' under §102(a). The patent statute in force immediately before the AIA included an on-sale bar. This Court's precedent interpreting that provision supports the view that a sale or offer of sale need not make an invention available to the public to constitute invalidating prior art. See, e.g., Pfaff v. Wells Electronics, Inc., 525 U. S. 55, 67. The Federal Circuit had made explicit what was implicit in this Court's pre-AIA precedent, holding that 'secret sales' could invalidate a patent. Special Devices, Inc. v. OEA, Inc., 270 F. 3d 1353, 1357. Given this settled pre-AIA precedent, the Court applies the presumption that when Congress reenacted the same 'on sale' language in the AIA, it adopted the earlier judicial construction of that phrase. The addition of the catchall phrase "or otherwise available to the public" is not enough of a change for the Court to conclude that Congress intended to alter the meaning of 'on sale.' Paroline v. United States, 572 U. S. 434, and Federal Maritime Comm'n v. Seatrain Lines, Inc., 411 U. S. 726, distinguished."). And there are good summaries at for example at and the Oyez Project.
[12] Pro bono work has been the backstop here for generations, but those efforts, even redoubled, won't fix the problem. California and other states are currently experimenting with "civil Gideon," i.e., funding counsel for the indigent. (Much of what we used to call the middle class needs free lawyers too.) In 2009, the Legislature passed AB 590 which authorized a pilot program. Gov. C. Section 68650 et seq. Toby Rothschild, "The Shriver Act Advances the Cause of Civil Gideon," Los Angeles Lawyer 12 (March 2018). A 2017 Judicial Council report is found here. San Francisco passed Proposition F to provide counsel to those facing eviction. Laura Ernde, "Groundbreaking San Francisco Measure Guarantees Counsel to Tenants Facing Eviction," San Francisco Attorney (SF Bar: Fall 2018).

#351314

Ben Armistead

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