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Why Lawyers Make Bad Judges
by Ralph Warner
Copyright © 1993 Nolo Press
The idea that judges should be lawyers is deeply ingrained in American
culture. Indeed, the law requires it in many parts of the country. But
approach to selecting our judicial officers is both preposterous and
Law School: No Place to Grow Judges
Most lawyers do not have the knowledge and skills needed to handle the
passing through our courts. To understand why, spend a few days at a
where future lawyers learn to solve problems by applying a formalistic,
logic-chopping analysis to a mish-mash of old court cases, following an
educational model that has changed remarkably little since World War I.
By claiming that correct decisions can be made by applying age-old
necessarily understanding the technical basis of the facts in a
method closes rather than opens the mind. For example, future judges
to feel comfortable deciding a case involving the claimed theft of a
increase the output of a power plant without understanding how a steam
No Schools for Judges
But surely lawyers receive additional training when they become judges?
count on it. Except for a few brief cram courses after they are
appointed to the
bench -- most often as a reward for political loyalty, rather than
competence -- new judges are on their own. More bluntly, if your
veterinarian was as poorly trained as your average judge, you wouldn't
within 100 feet of him.
Against this background, it hardly seems a radical notion that many
might make better judges than do our current crop of lawyers. Technical
such as patents, copyrights, trade secrets and medical malpractice, in
lawyers are hopelessly illiterate, offer obvious examples of legal
areas where a
non-lawyer with an understanding of the underlying technology would be
make better decisions.
But instead of stacking the deck against lawyers by picking an area
specialized knowledge is at a premium, consider one of the most common
-- family law. Immensely important decisions involving the custody,
and support of children are made every day against a background of
interpersonal stress. Most new judges have no experience with family
comparatively few have practiced in this area. And in most American law
zero time is spent on the personal and family dynamics of divorce; the
one or at
most two family law courses most law students do take focus on who gets
and property. Even that information is badly out of date long before a
grad is appointed to the bench.
And few family law judges get the benefit of on-the-job training.
because family court is a high stress, emotion-filled environment that
not trained to handle, most judges try to move on -- or rotate -- to
of cases as soon as possible. The result is there is no continuity in
that cries out for it.
Understanding this unique opportunity to shop for a more agreeable
with deep-pocket clients often bring the same custody and visitation
into court again and again. Sooner or later, a new judge with no
knowledge of what happened before may make a different decision.
Breaking the Stranglehold
There is an even more fundamental reason to break the legal
stranglehold over our courts. Given our tripartite system of government
the judicial branch can nullify the acts of the others, allowing the
profession to enjoy almost absolute power over our courts invites the
and greed we currently experience.
The unhappy result is on daily display in America's courthouses, where
instructions or other consumer-friendly information is available to
consumers accomplish even the simplest legal tasks. And most judges
shill for their lawyer buddies by telling confused pro pers to see an
they ask for any information beyond the location of the bathroom.
No Place to Go
Even worse, having lawyers as judges severely hampers citizens' rights
purchase basic affordable legal services from competent non-lawyers --
called legal technicians or independent paralegals. As more consumers
that lawyers are wildly unaffordable and patronize these reasonably
non-lawyer services, practicing lawyers -- instead of lowering fees and
service -- appeal to their black-robed brethren to stamp out all
competitors. Most judges respond in one of two ways. Some dust off and
unauthorized practice of law statutes passed by lawyer-dominated
the 1930s. Others resurrect a centuries-old legal doctrine known as
powers," which claims that only the judicial branch can regulate
transactions, in or out of court.
The result is that many non-lawyer form preparers are jailed and fined
lawyer-judges (the fact that they wear a black dress and sit on a
changes nothing), solely because they compete with other lawyers. Even
the scurry to put non-lawyers out of business, judges rarely examine
of their work. So, for example, even if a non-lawyer does a better job
divorce for $100 than a lawyer does for $1,000, the non-lawyer is
likely to go to
jail while the lawyer goes to lunch with the judge.
A Better Way
The solution is simple: Do away with the requirement that judges must
Instead, open up the occupation to all adults who can demonstrate an
level of competence. Appropriate standards of education and work
should be based on the subject matter to be judged, not some poorly
idea that lawyers always know best. For example, as an alternative to
law degree, judges in our family courts should be trained in the social
with a concentration on how post-divorce families can best work to
children. Learning mediation skills -- taught in only a few law schools
studying the economic problems created by divorce would also be of
This would likely produce career non-lawyer judges trained to defuse
help families arrive at consensual solutions.
Supplement this with a six-month intensive course on domestic relations
before allowing judges to pick up the gavel, and there is no doubt that
would have a better grasp of handling cases than do our poorly-trained
Finally, because non-lawyer judges would not be part of the local
network, this new breed of judges would be much more likely to crack
down on two
big areas of current abuse: overcharging lawyers and judicial hostility
pers. Both of these stains on American jurisprudence are damaging the
of our courts and should be reason enough to end the lawyer monopoly.
Side Bar--Lawyer Monopoly in the Big Sky--Montana
Judges Hogtie Non-Lawyers
An independent paralegal based in Kalispell, Montana, recently
represent a physically handicapped man who couldn't afford a lawyer.
relied on an 1871 Montana statute (MCA § 25-31-61) that allows a
party to a
justice court action to be represented by anyone.
But O'Neil's pleadings were drowned out by the sound of the state
First, the Montana Supreme Court ruled that, despite the clear language
statute, "any person ... may act as attorney," it was a "one time
only grant of
privilege" for a non-lawyer to appear. In other words, the court barred
non-lawyers from establishing a business to compete with lawyers.
Not satisfied with interpreting the statute to mean the opposite of its
language, the supreme court recently decided to eliminate it by
This has taken the form of a proposed rule of court, Rule 13, which
with the clear statutory right of non-lawyers to represent people in
In response to this grab of power, O'Neil and a group of non-lawyer
proposed legislation that would allow non-lawyers to serve as judges in
and give non-attorneys majority status on the State Judicial Standards
Commission. Both bills died in the Spring 1993 session, but are likely
reintroduced in the future.
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