Last week I was driving back from a meeting of our State Bar’s Board of Governors with Carol, another governor. My wife Cheryl was with us, and so was Carol’s husband, Harvey.
We were in the middle of complaining about law schools graduating more and more lawyers, despite market conditions, when the conversation turned to judicial efficiency, and whether judges need to be lawyers.
Harvey proclaimed that by using a little common sense he was certain he, a non-lawyer, could clean up crowded dockets allowing the truly important cases to be heard more expeditiously. Cheryl started adding on her ideas, and before long they had detailed the core elements to reforming our entire judicial system: The New American Court Plan.
First they tackled DWIs. They contended they didn’t need to be lawyers to preside over DWI cases; they just needed a system with built-in certainty.
According to “The Plan,” the first DWI would result in a $5,000 penalty and probation. The second DWI would result in one year in prison. DWI number three meant five years up the river. This system, they explained, would provide fair notice to offenders, would streamline cases and would convince drinkers to be far more prudent. They suggested that in the event the perpetrator got his hands on a “50 percent off coupon” from the bar, his penalty would automatically be halved. I queried whether the 50 percent off coupons were going to be issued by state or local bar associations, or be left to local lawyer advertisers. “Oh, please, no more lawyer advertising,” Harvey groaned, “the half-price coupons will be passed out at the actual bars where the drivers are drinking!”
Next, they tackled speeding tickets. They discussed a simple fine schedule of $75, $100, $200 and $300, based upon 10, 15, 20 and 30 miles over the limit. They said they would dispense with court costs which they felt made things too complicated. Harvey and Cheryl claimed it took no legal training to know that the drivers were going to swear they weren’t speeding, and that the police officers were going to be absolutely sure they were speeding. According to Harvey, “Trust me, I can tell when people are lying to me.” Apparently, guilt under “The Plan” would be determined using the “Harvey Test.”
Next on their list of solved problems, was paternity suits. Here, they disposed of not only legally trained judges, but with court hearings and all evidentiary issues as well. Under “The Plan,” they would simply have the accused “report to the lab, get his finger stuck, and the answer would be father or not father.” Parents would then automatically have joint custody. They would only be allowed to argue about custody in undefined “extreme circumstances”, and fines would be levied by the court if the ex-lovers didn’t get along. They will work on the fine schedule later.
On a clear roll, they turned to divorce. They contended, “It is time we modernize the divorce courts.” Apparently, the way to do that is to simply have the parties sign a one-page consent form indicating they agree to be divorced, and they automatically will be. No hearing, no judges, no evidence will be necessary. A rubber stamp from the clerk in the filing cage will do.
The lawyers in the car then asked Harvey and Cheryl if they had any concern that the system could be abused by one spouse forcing the other to sign the consensual divorce document against his or her will.
Harvey agreed that in those “rare” instances the aggrieved spouse could petition the court to argue they signed under duress. If, indeed, after a hearing, it was determined that one spouse forced the other spouse to sign the consensual divorce, the offending spouse would be shot. That, according to the non-lawyers, would clear the docket very quickly. It was unclear if under “The Plan” the shot would be fatal or only a glancing blow.
Now some of you may find a few problems with Harvey and Cheryl’s judicial streamlining “Plan,” and you may have spotted a few flaws in their ideas. This may lead you to believe that perhaps non-lawyer judges wouldn’t do a very good job. Be careful with your conclusions.
Although the current trend in state legislatures is to require judges to have legal licenses, there is still no requirement that a judge of the United States Supreme Court be a lawyer! Maybe there is a reason for that.
Furthermore, I need to caution you that Harvey and Cheryl are from Missouri – the same state where in 1926 a non-lawyer was elected as presiding judge of the County Court, and that non-lawyer proved to have plenty of common sense. He knew how to administer laws, and unlike some other judges, he never shrunk from the responsibility of making a decision. Jackson County Judge Harry S. Truman actually did pretty well for himself – and not bad for the rest of us.
©2011 Under Analysis LLC Mark Levison is a member of the law firm Lathrop & Gage LLP. You can reach Under Analysis LLC in care of this paper or by e-mail at comments@levisongroup.com.