Fewer cases, slower decisions – Performance data show output, backlog
Eric Velasco, The Birmingham News
Sunday, April 27, 2008
Alabama's Supreme Court is handling fewer cases, but the lighter load is not helping some justices work faster, according to statistics released for the first time by the court.
The most important legal decisions in Alabama are taking longer on average to resolve, despite efforts to clear the dockets of the nine justices, the court data show.
"Justice delayed is justice denied," said Chief Justice Sue Bell Cobb, head of the state's court system. "We must do everything we can to get cases out as quickly as possible, but with well-reasoned opinions."
The court's nine justices make two types of decisions: rulings on whether to accept an appeal and opinions that resolve a pending case. Not all rulings include written explanations.
The time the court has taken to issue written decisions on accepting appeals has shortened slightly, taking an average of 91 days last year versus 98 days in 2003, the data show.
But written opinions resolving cases took an average of 356 days in 2007, 81 days longer than the 2003 average. Overall, the court issued 22 percent fewer decisions last year than in 2003, the data show.
Budget cuts in 2003 are the main factor behind the drop in the number and speed of decisions, Cobb said. Each justice lost one of three staff lawyers who helped with research and writing.
The total number of cases coming before the court also has dropped 18 percent since 2003, primarily due to increased use of mediation and other types of dispute resolution in civil cases.
"It has led to a significant reduction in the number of cases," Cobb said. "It also saves the parties money."
Oral arguments:
In a trend that some lawyers and litigants find disturbing, the court rarely hears oral arguments nowadays.
In 98 percent of the cases before the court, the justices base their decisions only on written documents, according to an article in the March edition of The Alabama Lawyer by J. Mark White of Birmingham, incoming president of the Alabama State Bar.
In contrast, the Kansas Supreme Court heard oral arguments in 98 percent of the cases before it, White wrote.
Oral arguments allow justices to ask questions and better understand the parties' legal arguments, leading to better decisions, said White, who emphasized he was speaking as a lawyer, not as a state bar official.
Oral argument sessions also are the only time the public gets to see elected justices at work, White said.
"It's the public's system of justice," he said. "When oral argument is almost totally lacking, it creates the perception that the court is not interested in hearing their case."
Cobb said she has increased the number of oral arguments since she took office in 2007.
"But I'm still not satisfied with the number," she said. "The judicial branch is the least understood by the public, which is why oral arguments are important."
Unprecedented view:
The court's data provide an unprecedented view of its caseload and performance.
In 2006, the curtain was pulled back slightly when Justice Tom Woodall publicly criticized Justice Tom Parker, saying Parker let his cases pile up.
That year Parker issued two written opinions, compared with 59 by the court's top producer, Justice Harold See.
The court had routinely kept track of caseloads and productivity for internal use. When a blogger recently asked the court for the data, the justices unanimously agreed to release the numbers, Cobb said.
"You'll see this as long as I'm chief justice," she said. "I want to commend my fellow justices on the court for agreeing to release these numbers. We need to be accountable."
Cases are randomly assigned by computer, and each associate justice receives an equal number of cases. The court is divided into two panels, with four associate justices on each. The chief justice sits on both panels and handles the most administrative duties, so she is assigned one of every 17 cases.
Experience counts:
Individual justices' experience level seems to play into productivity.
"That's a fair yardstick," said White, the Birmingham lawyer. "There is an advantage in how long you've been on the court and how well you understand the process."
Also, new justices inherit the cases of the jurist they replace. When See retires this year, the winner of the election between Deborah Bell Paseur and Greg Shaw will take on his pending cases.
Justices Champ Lyons, Lyn Stuart and Woodall consistently have written the most decisions and produced them in less time than their colleagues, leaving them with the smallest backlog of cases.
Lyons joined the court in 1998; Stuart and Woodall became justices in 2001.
Justices Tom Parker, Mike Bolin, Patti Smith and Glenn Murdock have been the slowest and least productive. Parker, Bolin and Smith joined the court in 2005, Murdock in 2007.
Parker has the largest backlog and is slowest writing opinions, although he made the most decisions last year on which appeals to accept.
Since Parker joined the court, he has taken more than four times longer to produce written decisions than Woodall has. Parker's case backlog as of Feb. 1 was seven times the size of Woodall's.
Statistics alone should not be the sole measure of a justice, Cobb said. Some cases are more complicated than others and take longer to decide. Justices often must revise their draft orders to build a consensus.
"It is important for us not have too many plurality decisions, in which the justices arrive at the same decision, but for different reasons," Cobb said. "But that sometimes takes longer."
- - -
Judging the judges – [Editorial]
The Birmingham News
Wednesday, April 30, 2008
THE ISSUE: The wheels of justice don't always move quickly in Alabama; just how quickly sometimes depends on which judge is driving.
All things considered, if you want to run for the Alabama Supreme Court, it might be smarter to try to unseat Associate Justice Tom Woodall than his colleague Tom Parker.
The reason? If you beat one of the justices, you inherit his unfinished work. As of Feb. 1, Parker's backlog of cases was seven times the size of Woodall's, according to internal records kept by the court system and rightly made public.
According to those records, Parker in 2007 was one of the least productive justices on the court and the absolute slowest, taking an average of 425 days to produce a written opinion. Woodall was the most productive and one of the faster justices, turning around last year's written decisions, on average, in 85 days.
To be sure, the full measure of a judge isn't how many decisions he writes and how quickly he does so. Not all cases are equal, and the public's interest isn't served by bad decisions, no matter how quickly they are rendered.
But, the statistics are more than just interesting bits of trivia. Justices on Alabama's Supreme Court are elected by citizens who often have virtually no way to judge the candidates' performance and little exposure to the justice system.
Knowing that Woodall, Justice Champ Lyons and Justice Lyn Stuart are consistently among the fastest, most productive judges is at least something to go on. Likewise, it's worth knowing that Parker, Justice Patti Smith and Justice Glenn Murdoch are among the slowest and least productive members of the court.
Remember, this is not a matter of one judge getting more cases; they all get the same number. And it's not a matter of minor differences in judicial performance. There's a real gap between the judges at the top and at the bottom.
The speediest of the speedy justices, Champ Lyons, took an average of 77 days to turn around a decision, less than a fifth the time (425 days) taken by Parker. Justice Michael Bolin was one of the more productive judges in 2007, but he also didn't break any speed records, taking on average 390 days to turn a decision around. That's a long time for cases that are often years in the making before they ever get to the Supreme Court.
(For the record, and to leave nobody out, Justice Harold See was about in the middle as far as speed and productivity go. Chief Justice Sue Bell Cobb wasn't ranked because she has other administrative duties and carries a lighter caseload.)
To their credit, all the judges agreed to release the records that show how they stack up against their colleagues. Cobb is exactly right: "We need to be accountable." Alabamians may not see these judges very much on the job, but they're still the bosses in our system of justice. People who are going to elect judges need to have some way to judge them.
- - -
Celebrating the rule of law – [Letter-to-the-Editor]
Mobile Press-Register
April 24, 2008
Today, when the world is faced with two contrasting ideologies the rule of law and the rule of terror celebrating Law Day becomes more than observing our traditional values. It becomes an affirmation of the legal traditions that for years made this country a beacon of hope for those living under tyranny.
To celebrate Law Day 2008, which is May 1, the theme we have chosen in Alabama "The U.S. Constitution: Foundation of the Rule of Law" defines what the rule of law can mean.
Simply put, the stability of American society depends in large part on our nation's commitment to the rule of law.
The rule of law means that all members of our society are subject to the same set of laws and that these laws are enforced consistently without regard to one's position in society. Not every dispute needs to be resolved in court, but we should know when and how the law can protect our interests and preserve our rights.
Fifty years ago, President Dwight Eisenhower issued a proclamation establishing Law Day as a day to recognize the heritage of liberty, justice and equality under law as given to us by the founders of this nation.
Although much has changed in the world during the 50 years since Law Day was established, including the fall of the Soviet Union and the end of apartheid in South Africa, the underlying contrast between freedom and totalitarianism remains.
President John F. Kennedy said, "By strengthening the rule of law, we strengthen freedom and justice."
On this Law Day 2008, the Alabama State Bar asks citizens to stand up for the rule of law by supporting those who fight totalitarianism wherever it exists, and by supporting those who advance understanding of the value of a system of laws, not men.
We owe the future no less.
SAM CROSBY
President, Alabama State Bar
Daphne
- - -
Law Day: Special interests' attack on courts puts justice at stake – [Op-ed]
St. Louis Business Journal
Special interests are trying to discredit Missouri's judges, weaken the courts and make judges beholden to politicians. If that statement sounds like an alarm, that's because the situation is alarming. In Missouri, our courts are under attack, and justice is at stake.
Missouri judges have a well-deserved reputation for being fair and knowledgeable. They do not make up the law; they interpret it and apply it. In the process, they safeguard our rights and create a stable, predictable legal environment that businesses, families and individuals can rely upon.
An integral part of Missouri's court system is our nationally renowned method of selecting judges, based on merit. This system, the Nonpartisan Court Plan, has served our state for almost three-quarters of a century. It is the least political way of providing our courts with quality judges, and it gives the voters the final say.
The Board of Governors of The Missouri Bar represents the state's 28,000 lawyers and is a strong supporter of the Nonpartisan Court Plan. If there were something wrong with Missouri courts, lawyers would be the first to know and the first to raise a red flag. But there is nothing wrong with the courts and nothing wrong with the Nonpartisan Court Plan. The more you know about the plan, the more you appreciate its role in keeping politics at a minimum so the focus can be on the quality of candidates -- their legal knowledge, their skills and their character.
A proposed Missouri constitutional amendment being considered in the Legislature is an attempt to convince the public that something is wrong with our state judges. The proposal, House Joint Resolution 41, seems harmless. It states that judges shall not have the right to levy taxes. This is nothing less than an attempt to convey a false impression that Missourians need to be protected from overreaching judges. The Missouri constitution clearly defines the roles and responsibilities of the three branches of government. Everyone who can remember their eighth-grade civics class knows that the power to levy taxes belongs to the Legislature. At no time since Missouri became a state in 1821 has a state judge ever tried to violate our constitution by levying a tax.
Why a constitutional amendment? Why now? The proposal addresses a problem that cannot exist. Even if it fails in the Legislature, or should it end up on the November ballot, it can succeed in sowing distrust of Missouri's courts and judges.
Another proposal targets the Nonpartisan Court Plan. Earlier this year, an initiative petition that would drastically change the plan was filed with the secretary of state. This initiative is not the result of a grassroots political effort. It was conceived and sponsored by a tiny group that will not even list its members on its Web site. Going under the misleading name of "Better Courts for Missouri," the group's proposal would do everything but make the courts of Missouri better. At its core, the initiative is a clear attempt to allow political interests to control the selection of judges.
The people of our state want -- and deserve -- judges who are not beholden to politicians or special interests. Voters adopted a nonpartisan plan for selection of some Missouri judges in 1940, and this method of judicial selection has been adopted in some form or another in more than 30 states. In Missouri, the nonpartisan selection method is used to select all of the state's appellate judges and trial judges in Platte County, Clay County, Jackson County, St. Louis County and the city of St. Louis. Under the terms of the plan, when a judicial vacancy occurs, a judicial selection commission -- composed of both bar members and citizens -- selects three finalists for the position. The governor then selects one of the three nominees to fill the vacancy, with that person going before the voters at the first election following one year's service.
Fringe groups such as Better Courts for Missouri are often financially supported by outside interests concerned not in promoting open government, but rather in ensuring that the judges who are elected share their political philosophy.
On the other hand, the list of groups supporting the existing system is well-known and impressive. It includes a wide range of business, religious, educational, community and legal organizations that have joined a broad-based coalition known as Missourians for Fair and Impartial Courts. This group has dedicated itself to keeping Missouri's courts free from attacks by politicians and special interest groups.
Also helping this effort is The Missouri Bar, which for nearly 40 years has made public education about the justice system a key component of its operations. The state bar has a nationally recognized program of citizenship education activities designed to improve civic understanding and participation among young people.
In contrast to groups that would undermine our judicial system in the guise of making government more accountable, The Missouri Bar has always recognized that civic understanding is the most powerful tool in ensuring that the will of the people is truly the supreme law of our state.
Charlie Harris Jr. is president of The Missouri Bar.
- - -
Avvo advertising allowed
By David Chapman, The Jacksonville Daily Record
April 28, 2008
The Florida Bar’s Standing Committee on Advertising has reversed its previous ruling, and the Bar will now allow Florida attorneys to use ratings they earn on the somewhat controversial Web site Avvo.com in their advertising campaigns.
The 3-1 vote followed a presentation and site tutorial by Avvo President Mark Britton, who explained the methodology behind the site’s lawyer ratings and fielded questions from the panel.
On April 2, Florida lawyers joined the list of thousands of profiles on Avvo.com, a lawyer rating and review site intended to help consumers better choose legal representation much like travelers can choose hotels and airlines based on Web ratings and testimonials.
The site currently lists 3,401 Jacksonville lawyers, including deceased attorneys still in public records of The Florida Bar and the courts. Deceased lawyers cannot be rated.
Each lawyer profile includes a numeric rating from 1 to 10 based on, according to Britton, a number of factors including work experience, industry recognitions, case history and disciplinary action. The site also features peer and client reviews, which do not factor into the numeric rating. It appears few if any of the Jacksonville attorneys have received peer or client reviews.
Avvo rates lawyers in Arizona, California, the District of Columbia, Florida, Georgia, Illinois, Massachusetts, New York, Ohio, Pennsylvania, Texas and Washington, with the goal to have all U.S. lawyers listed in the near future.
Britton said other state bars have allowed attorneys to use their Avvo ratings in advertisements. However, the Florida Bar’s Committee on Advertising in March voted down that ability for state lawyers. Committee member Elizabeth Tarbert said the decision was due to questions of how the ratings were generated, especially with client reviews.
But after Britton’s presentation two weeks ago, the committee overturned its previous ruling.
“Their (Avvo’s) presentation cleared up the concerns we had,” said Tarbert.
Britton said the Florida Bar has been the only group that has had issues with the site’s methodology thus far, but he credits the Bar for giving him the chance to make his case.
“We know we’re new and different,” he said. “Sometimes I think there is the tendency of beating up the new kid on the block, and it just takes time to understand.”
After first visiting and using the site, several local and state bar members questioned the site’s effectiveness at “rating” certain qualities and characteristics of attorneys.
“How can you quantify reputation and other traits?” said Florida Bar Association President Frank Angones, who added people can view almost all the same information, although without ratings, on the Florid Bar’s Web site.
Jacksonville Bar Association President Caroline Emery said the concept of the site has potential if it can help people chose an attorney outside of advertising, “but it has too much potential for problems with inaccurate ratings. Personally, as a lawyer, I’m against it.”
Britton said he realized some of his critics might deem the site controversial, but he said he believes many times lawyers don’t necessarily understand the public’s difficulty in effectively choosing the best attorney.
He said one result that often popped up in focus groups was the lack of knowledge and intimidation factor that consumers have when trying to decide if they need legal representation and who they should choose.
While critics might chalk up the site to being misguided, Britton said that much work goes into making sure the site is a credible consumer source.
“Our system uses many, many factors,” he said. “We do our due diligence with research and have some of the best legal minds in the business contribute to the rating system. We also offer client and peer reviews, which totals three different points of view for the consumer.”
Lawyers can also “claim” their profiles and add photos, reports and other biographical and referral information. Britton said the site could help many lawyers establish a Web presence if they haven’t already.
Between assisting consumers and lawyers, Britton calls the site a “win-win” and hopes Florida lawyers will be the next to embrace the site.
“The mission at every bar association is to help everyone involved equally,” said Britton. “That’s our mission as well.”
Corporate lawyers give system low grade; Plaintiff lawyer group calls survey propaganda
ERIC VELASCO, The Birmingham News
April 24, 2008
Corporate lawyers consider Alabama's civil court system one of the nation's worst, according to a survey released Wednesday by a U.S. Chamber of Commerce think tank.
Alabama ranked 47th among the 50 states in the 2008 survey for the U.S. Chamber Institute for Legal Reform. The state came in 47th last year and 48th in the 2006 survey.
But the American Association for Justice, the national group for plaintiff lawyers, dismissed the survey as propaganda fueled by corporations that want to block access to the courts for the people harmed by their products.
The chamber survey's respondents said Alabama judges are slow, biased and incompetent, and Alabama's juries are unfair and unpredictable.
The national chamber touted the survey as an important yardstick for states and tort-reform efforts because corporations consider a state's legal climate when they decide where to operate.
The telephone survey was conducted by Harris Interactive market research firm. It interviewed senior litigators and general counsel for the nation's largest insurance companies and corporations.
"These lawyers live with the broken lawsuit system day in and day out," Tom Donohue, chamber president and CEO, said of the lawyers surveyed.
The lawyers were asked to assign letter grades to states in 11 categories assessing their laws, judges and juries.
Alabama ranked near the bottom in each category. Corporate lawyers gave Alabama its worst mark for laws regarding punitive damages - money awarded by juries to punish a business in a civil lawsuit.
Six percent of the respondents ranked Alabama among the five worst states in the nation for fairness to corporations.
"We've been telling state policymakers for seven years now that they need to improve their state's lawsuit system," Donohue said in a release. "Even though we're seeing some improvements, from the perspective of global competitiveness, America's legal climate is only as good as our worst states."
The plaintiff lawyers' group said it's impossible to measure the fairness of a state's legal system through a survey, especially one that only talks to corporate lawyers and not to local experts.
The true mission of the chamber's Institute for Legal Reform is to skew civil tort reforms in favor of corporations, the plaintiff lawyers association said in a news release.
"The U.S. Chamber seems to believe that giant corporations should get a free pass for their negligence or misconduct," said Jon Haber, association CEO. "U.S. Chamber's goal is to make sure people can't get justice in the courtroom."
- - -
ALABAMA VOICES: Assess experience – [Op-ed]
By Bart Spung., The Montgomery Advertiser
April 20, 2008
A bill in the Alabama Senate would require a lawyer to have a minimum level of experience practicing law before being eligible to become a state court judge.
Specifically, the bill would require a lawyer to have practiced law at least three years to become a district court judge, at least five years to become a circuit court judge, and at least 10 years to become an appellate court judge.
The premise of the bill is that there is a direct correlation between the number of years a lawyer practices law and his or her aptitude to be a judge.
It is understandable that public opinion could agree with the bill's premise. That may be why the bill has widespread support. The Alabama House of Representatives unanimously passed its version of the bill recently. Passage of the bill is also supported by the chief justice of the Alabama Supreme Court and the president of the Alabama State Bar Association.
A foreseeable consequence of the democratization of the judiciary in Alabama is that the public will eventually authorize some form of limitation on itself in its selection of judges. The bill in the Senate provides one such limitation. Such limitations, if well founded, could protect the electorate from itself and improve the quality of an elected judiciary.
This bill, however, is misguided because its underlying premise is false. The bill accounts for only the quantity of legal experience, not the quality or nature of that experience, let alone a lawyer's intellect, skill, character or temperament, factors which are better indicators of aptitude to be a judge than length of practice experience.
Before the Alabama Legislature denies or delays the public the benefit of a talented lawyer becoming a judge due to the lawyer's lack of any particular credential, it should ensure that the credential is reasonably related to the nature of the judicial role.
The role of the trial court judge differs markedly from that of the appellate court judge. Consequently, as a general rule, the skills, temperament and type of experience a lawyer needs to competently perform in each role varies as well. The bill does not reflect that distinction.
When an Alabamian thinks of a judge, the first image that likely comes to mind is a trial court judge. That is because most people's experience with judges and courts is at the trial level. The public is much less familiar with appellate courts and appellate judges because their proceedings are less visible.
Anyone who has witnessed an actual trial would probably agree that one significant role of the trial judge, especially at the state level, is courtroom management. Courtroom management includes, among other things, refereeing disputes between lawyers, overseeing jury selection, and ruling on lawyers' objections to evidence.
Part of courtroom management requires the judge to make decisions "in the heat of battle" after little or no reflection. The trial judge also spends much time reading, writing and thinking outside of the courtroom. Still, courtroom management skill and its necessary accompaniment of practical courtroom legal judgment, which are garnered from, and arguably only from, trial courtroom practice experience are crucial for any lawyer who aspires to a trial judgeship.
It would be unusual for a lawyer to have the courtroom management skill and practical courtroom legal judgment required of a state district or circuit judge after practicing law fewer than three to five years, as the bill mandates. Even so, experience is not experience. A lawyer with two years experience as an assistant district attorney has more courtroom experience and therefore arguably more preparation for a trial judgeship than does a lawyer with 10 years experience doing exclusively non-litigation oriented, in-office work. However, under the bill the former would be barred from any state judgeship while the latter would be eligible for any.
Lengthy experience practicing law may be even less relevant for a lawyer to perform competently as an appellate judge. The appellate judge's job description is significantly different than that of the trial judge's because the nature of the appellate court is different than that of the trial court.
An appellate court's fundamental role is to determine whether the lower court made a reversible error. The appellate court makes that determination based on a detached review of a static record of the proceedings in the lower court, or courts, and the lawyers' arguments from that record and the relevant law. Accordingly, the appellate judge's role is almost entirely intellectual and reflective. Competence at the appellate court level requires a high aptitude for legal analysis and writing and a temperament to work in relative isolation.
But for hearing occasional oral arguments, appellate judges' sole formal contact with lawyers, litigants and the public is through written communication. Appellate courts do not conduct trials, hold pretrial conferences with lawyers, hear evidence or make factual findings. Consequently, there is little need for appellate judges to referee lawyers and make on-the-spot judgments. Courtroom management is negligible.
Practical legal judgment gained from practicing law may be a less reliable predictor of appellate judicial aptitude than are general judgment and general intellectual capacity stemming from native giftedness, study and/or experience in legal or non-legal contexts.
If my assessment above is accurate, it seems that Alabamians should prefer that their trial court judges have at least as much, if not more, experience practicing law as their appellate judges. Under the bill, however, the reverse is mandated.
Although the bill's logic is flawed, its consequences, on balance, may be positive. If the bill becomes law, it may keep some lawyers from becoming judges who have no true qualifications other than that they were able to get elected or appointed. If the law protects the state from one such occurrence, it would be commendable.
Even so, occasionally a young lawyer combines a superior legal mind with the temperament and character of a judge. If a lawyer possesses that combination of attributes and is able to persuade a majority of the state's electorate or, in certain cases, the governor of that, should he or she be denied a judgeship simply for not having practiced law for an arbitrarily designated number of years?
Bart Spung practices law in Montgomery.
- - -
High court makes right boost for legal services to needy – [Editorial]
Honolulu Star Bulletin
April 23, 2008
THE ISSUE:
The state Supreme Court plans in May to create an Access to Justice Commission to expand legal services to the needy.
The state Supreme Court's requirement that Hawaii lawyers report free services they provided to people who can't afford to pay for legal help has resulted in a doubling of donated time reported. The new rule has been a success, and the Hawaii State Bar Association plans to take an important next step by creating a commission to lead expansion of legal services for the needy.
Only 27.4 percent of Hawaii's nearly 7,000 lawyers voluntarily reported providing free -- pro bono -- services in 2006. The high court adopted a requirement in October that all lawyers report whether they have provided free services, and 47 percent reported having donated 200,000 hours to provide legal help to people who cannot afford an attorney.
The Bar Association had objected to the proposed requirement last July, and Chief Justice Ronald T.Y. Moon said he was "totally disappointed and dismayed" by the association's stance.
The need can be expected to grow unless the economy makes an unforeseen rebound. Volunteer Legal Services of Hawaii, which offers free or low-cost legal help to low-income residents, received more than 9,000 calls for help last year, up from 6,000 in 2003, according to Moya Davenport, executive director.
Lawyers should follow the example of Ellen Politano, a single mother and family law attorney who put in more than 200 hours last year on pro bono cases. Her clients included Sharma Torres, who had lost custody of her 6-month-old daughter Anjelina to her abusive husband, who out-staged her in military court.
Donating time through Volunteer Legal Services, Politano reviewed the case and determined that Torres had been wrongly portrayed in court. When Anjelina's father violated a court order by moving to the mainland with her, Politano won for Torres full custody of her daughter.
"There are a lot of women out there who are in my situation, but they don't have the financial means to hire a lawyer and no lawyer is willing to help them," Torres told the Star-Bulletin's Susan Essoyan. "Without legal representation, I don't think I would ever have gotten Anjelina back."
A study by the Access to Justice Hui, comprised of legal service providers to the needy, found that 77 percent of the state's low-income residents are unable to acquire legal assistance when they need it. The Supreme Court requirement came at the hui's urging.
Rather than allow the study to gather dust, the high court plans on May 1 to create an Access to Justice Commission, comprised of the governor and attorney general or their representatives, a Supreme Court justice, judges, legislative leaders and legal service providers. The commission will be given the important mission of providing leadership and continuity in expanding pro bono services.
- - -
Call My Lawyer ... in India
By Suzanne Barlyn, TIME Magazine
April 3, 2008
Mark Alexander, a Dallas attorney, says he's ethically obligated to do what's best for his clients, "and that includes saving them money." So when one of them asks him to research a securities-fraud topic, for example, or breach of contract, he doesn't even think about applying his $395 hourly rate. Instead, he calls Atlas Legal Research, an outsourcing company based in Irving, Texas, that uses lawyers in India to provide the service for $60 per hr. "When a client pays me a $25,000 retainer and I can save them money, I will do so," says Alexander. Handing off the work to a $225-per-hr. junior associate is not an option. "They don't even know where to stand in the courtroom," he says.
While the Americans learn, well-trained lawyers in secure offices in Mumbai (formerly Bombay), Bangalore and Gurgaon (outside Delhi), who typically earn $6,000 to $30,000 annually, do legal grunt work. Alexander's sentiments may explain why outsourcing is blossoming in the legal profession, which is known--and often despised--for its high prices. Law-firm partners bill at a national average of $318 per hr. and at $550 per hr. at large New York City firms, according to a 2007 survey by Altman Weil, a legal-consulting company. Starting salaries for attorneys at some large firms now stand at $160,000. So a U.S. company's simple problem can generate hundreds of thousands of dollars in fees.
The considerable savings is perhaps one reason Forrester Research, based in Cambridge, Mass., has projected the offshoring of 29,000 legal jobs by the end of the year and as many as 79,000 by 2015. It's part of India's inevitable move up the corporate food chain, from lower-value business process outsourcing--like call centers--to knowledge process outsourcing (KPO). The latter category encompasses higher-skilled jobs, such as engineering and medicine, and relies on the KPOs to behave more like branch offices of U.S. companies.
ValueNotes, a business-research firm based in Pune, India, says a subset of KPO called legal process outsourcing (LPO) has grown revenues 49% from 2006, to $218 million last year. The figure will nearly triple, to $640 million, by 2010, it says. ValueNotes counts more than 100 legal-services providers in India, ranging from a handful of overseas corporate legal offices, such as Oracle's and General Electric's, to companies that contract to provide low-cost legal services to U.S. and British businesses. Leaders include Integreon and LawScribe, both in Los Angeles, and New York--based Pangea3.
Persuading lawyers to export work wasn't an easy sell, says Ganesh Natarjan, CEO of seven-year-old Mindcrest, which has its headquarters in Chicago and employs 440 lawyers in Mumbai and Pune. "Lawyers are a risk-averse group, so it was a slow process for them to adopt the idea," says George Heffernan, vice president and general counsel. Mindcrest's services include document review, research and support for compliance functions. The last cost large companies an average of $2.9 million each in 2006, according to Financial Executives International in Florham Park, N.J.
Educating American lawyers about India's English-speaking attorneys, who are trained in a common-law system modeled on Britain's, helped change attitudes, at least among top lawyers for U.S. companies, Heffernan says. About 75% of Mindcrest's clients are FORTUNE 500 companies. Mindcrest hired 390 lawyers last year alone, a staff increase mandated by clients with some large-scale projects, it says.
But outsourcing worries some experts because the ethical rules that bind U.S. attorneys have no force in India. "Lawyers are being seduced by the business end of outsourcing and are not being concerned enough with the ethical issues it's raising. I'm deeply troubled that outsourcing companies do not understand the scope of a lawyer's duty to confidentiality, nor are they familiar with conflict-of-interest rules," says Mary C. Daly, dean of St. John's University School of Law in New York City.
LPO firms say they are up to the task of security and confidentiality. At Integreon's facilities in Mumbai and Gurgaon, for example, guards search attorneys' belongings to ensure they're not carrying flash drives or laptops, according to CEO Liam Brown. Computers don't have disc drives, usable usb ports or CD burners, and most can't print. Attorneys work for a specific client in areas called dedicated delivery centers, which are accessible via a fingerprint scan and monitored by cameras. Each room can hold up to 36 terminals--many of them with dual screens. The company never stores data locally. Rather, the lawyers work directly on the client's server and only over a secure line or via the Internet. The space becomes a "virtual extension of the company we're working for," says Abhishek Khare, head of the Gurgaon office.
Changes in litigation procedures are boosting momentum in the LPO trade. Amendments to federal rules require parties to share electronic documents, such as e-mail and Microsoft Office files. That typically means both sides must review thousands of documents to prevent the inadvertent disclosure of confidential information to the other party. The service costs about $1 per page in India but can range from $7 to $10 per page in the U.S. "Some clients don't want to spend that much, especially if they don't even know how much their damages could be," says Conrad Jacoby, owner of efficientEDD, a legal-technology consultancy in Dunn Loring, Va.
TransUnion, in Chicago, has successfully outsourced legal work for four years, according to general counsel John W. Blenke. "Every law firm is really an outsourcer. One lawyer usually can't do it all," he says. Indian attorneys are currently reviewing more than a million litigation e-mails for the company, which costs less than $10 per hr., he says. He would pay $60 to $85 per hr. to a U.S.-based legal-staffing company for the job. Blenke says he's cautious, however, about the work he outsources. "You can only do it with a few things. It has to be an area that you know well, so you can build processes around that," he says.
DuPont saved $500,000 in 2006 by outsourcing paralegal work to Chicago's RR Donnelley, which uses facilities in India and the Philippines to review documents for the chemical giant, says Thomas Sager, DuPont's chief litigation counsel. "There's been some internal resistance, and from the outside too, about working with providers thousands of miles away. But geographic separation is now a fact of life," says Sager.
Some private attorneys remain cautious. Says Gregg Kirchhoefer, a partner in the Chicago office of Kirkland & Ellis: "We don't do, haven't done and don't plan on doing this. The name of the game for us is quality." Daly, the law-school dean, says an ethical breach is only a matter of time. "We haven't seen any documented problems crop up yet, but I'm sure they're there," she says. "We've certainly seen problems on the domestic side. It would be foolish to assume they're not on the global side as well." It would also be foolish to assume that the outsourcing trend in law is anything but robust.
Dothan attorney has law license suspended
By Matt Elofson, The Dothan Eagle
April 16, 2008
A Dothan attorney could be taking on more cases after the state recently suspended the license to practice law for another attorney. Circuit Court Judge Lawson Little recently appointed David Rousseau to become the administrator of the cases assigned to Virginia Dewella Emfinger.
Rousseau was appointed to handle or redistribute Emfinger's cases after the state recently suspended her license to practice law.
The Alabama Supreme Court suspended Emfinger's license after an investigation by the Alabama Bar Association showed she overbilled the state for cases she worked, said Sam Partridge, an assistant to the general counsel for the state bar association.
The suspension became effective April 7, but the state bar completed its investigation last month.
"There were a couple of cases where she billed excessive hours where she didn't actually work those hours," Partridge said.
The state bar's investigation showed Emfinger overbilled the state in criminal cases where she had been appointed to represent indigent defendants, Partridge said.
The state bar recommended the suspension of Emfinger's license because she committed two different violations of the Alabama rules of professional conduct, Partridge said. The investigation showed Emfinger engaged in dishonest, fraud or deceitful conduct and conduct that reflected poorly on a lawyer's fitness to practice law.
Emfinger, 52, had practiced law in the state of Alabama since September 2000. She became the second lawyer in the Wiregrass to have their license suspended recently. Gene Spencer, 58, of Newton, was disbarred by the Supreme Court of Alabama on April 7. Spencer lost his license for a five-year period, but both Emfinger and Spencer will be allowed to reapply to practice law again.
No criminal charges have been filed against Emfinger, but Spencer faces a felony second-degree forgery charge.
Emfinger could not be reached for comment, and the phone number for her law office formerly located on West Adams Street near downtown Dothan has been disconnected.
In a previous report Emfinger called the overbilling in question a clerical error, and miscommunication with her staff. Emfinger also said she repaid the money in question.
The overbilling is related to vouchers she submitted for work she did on revocation hearings held in District Court Judge John Steensland's court. The hearings regarded the status of inmates in community corrections who violated facility rules and were being sent back to the county jail.
- - -
Courts on the right path – [Editorial]
Mobile Press-Register
Thursday, April 17, 2008
ALABAMA CHIEF Justice Sue Bell Cobb is steering the state's corrections policy toward where it should be: locking up dangerous criminals for a long time and letting nonviolent offenders -- particularly drug-possession offenders -- get treatment or serve time under less security.
The chief justice has pushed to expand drug courts, which divert offenders from prison to treatment, and to set up community-based punishment facilities.
As a consequence, more than 100 offenders convicted of drug possession charges are diverted from the state's crowded prisons every month. That's good, because the state already incarcerates too many nonviolent drug offenders.
Indeed, more than 2,200 prisoners are serving time for drug possession.
In a prison system bursting at its seams, keeping drug-possession offenders out of prison is important. The state imprisons about 20,000 offenders in facilities built for far fewer numbers. In fact, Alabama has one of the highest incarceration rates in the country, in part because the state's courts have been sentencing drug offenders and other nonviolent offenders to prison terms.
Special drug courts can help. Eighteen existed when Chief Justice Cobb took office earlier this year. Now, largely because of her encouragement, there are 38. Another 26 will soon be in operation.
Community corrections programs can help, too. There are 33 in the state, serving 44 counties, but more are needed before all counties have such programs. Seven more are scheduled to open soon.
As Chief Justice Cobb sees it, drug courts are the "single best way of protecting the public. They save millions of taxpayer dollars, doing the hard work of fixing people instead of the easy work of filling prisons."
She's right.
The chief justice has also had success in getting state judges to use voluntary sentencing guidelines that suggest lighter sentences for nonviolent offenders.
Together, these changes can help erase the persistent crush of overcrowding that has dogged Alabama's corrections system for years. Keeping people locked up is expensive.
When nonviolent, relatively minor criminals are handled through drug courts, community corrections programs and, if necessary, minimal sentences in a state prison, tax dollars are saved and the valuable beds in state prisons remain available for the violent, hard-core criminals who deserve to be locked up in them.
- - -
The Selling of the Judiciary: Campaign Cash ‘in the Courtroom’ – [Op-ed]
By DOROTHY SAMUELS, The New York Times
April 15, 2008
“We put cash in the courtrooms, and it’s just wrong,” Sandra Day O’Connor, the former Supreme Court justice, declared at the start of a conference in New York last week on a growing threat to judicial independence and integrity: the escalating millions that special interests are pouring into state judicial elections in an effort to buy favorable rulings.
The substance of her remarks was no surprise. Since retiring in 2006, Justice O’Connor has devoted herself to spreading the word about assaults on judicial independence and the bedrock principle of impartial justice — including from big-money state judicial campaigns. Still, it was startling to hear a former member of the nation’s highest court speak about the problem in such stark terms. No question, her alarm is well-founded.
Thirty-nine states elect at least some of their judges. On top of the inappropriate judicial involvement in partisan politics, recent years have seen the dawn of a grubby new era of multimillion-dollar campaigns for important state judgeships. They include 15- and 30-second attack ads, a staple of competitive races for top executive and legislative posts. These slugfests are largely underwritten by well-heeled interest groups — including insurance companies, tobacco firms, the building and health care industries, unions and trial lawyers — that have seized upon judicial contests as a promising avenue for influence-peddling.
The implications for the nation’s justice system are enormous. About 95 percent of cases are handled by state courts rather than appointed federal judges, notes Justice Stephen Breyer, who appeared at the Fordham Law School conference with his former colleague. Experts expect that 2008 will be another banner year for raucous and expensive judicial races.
The perception that money is corrupting the courts would be damaging enough. But often, it seems, special interests are finding that buying up judges likely to side with them in big-dollar cases is a good investment — the real-life grist for John Grisham’s new fictional legal thriller, “The Appeal.”
Events this month in Wisconsin and West Virginia only deepen these concerns. On April 1, the first and only African-American member of the Wisconsin Supreme Court, Louis Butler, lost his seat after a nasty, racially charged campaign in which his opponent, Michael Gableman, was aided by a barrage of TV advertising, paid for by the state’s largest business lobby.
In West Virginia, meanwhile, the State Supreme Court’s handling of a case involving a large coal company, Massey Energy, took on a decidedly farcical flavor. For the second time, the appellate court threw out a $50 million verdict against Massey.
The court decided to rehear the case after photographs publicly surfaced of its chief justice, Elliott Maynard, vacationing in Monte Carlo with Massey’s chief executive, Don Blankenship, in 2006, while the matter was pending in the Supreme Court. The chief justice disqualified himself from the rehearing. So did another justice, Larry Starcher, because he had publicly criticized Blankenship and his company. The 3-to-2 outcome in favor of Massey was unchanged from the first round, which might not have been noteworthy except that the deciding vote was cast once again by Justice Brent Benjamin, who declined to recuse himself despite owing his election to the court to more than $3 million spent by Mr. Blankenship.
In response to such travesties, judicial reformers have stepped up their call for public financing and strict fund-raising rules for state judicial contests or a switch to a nonelective merit selection system.
But with states in no rush to make these changes, a new report from the Brennan Center for Justice smartly focuses on an effective if less sweeping antidote that would be more achievable in the short-term: persuading jurisdictions to strengthen their recusal rules.
Surely special interests would be less inclined to invest so heavily in judicial elections if they knew the recipients of their largess likely would be barred from sitting on their cases.
- - -
House panel OKs bill to allow some elderly jurors to be excused
By BOB JOHNSON, The Associated Press
April 9, 2008
MONTGOMERY, Ala. (AP) — It's not uncommon for people called for jury duty to look for a reason to keep from having to serve, such as a health problem or a work conflict.
The House Judiciary Committee on Wednesday approved a bill that would give prospective jurors in Alabama another reason to be excused — being too old.
The committee approved on a voice vote a bill by Rep. Mac Gipson, R-Prattville, that would allow Alabama residents 75 and older to be excused from jury duty. The bill now goes to the full House for debate.
The proposed legislation would require judges to dismiss a person 75 or older from jury duty if he or she made a request in writing.
Gipson said the bill would not stop any elderly citizen who wants to be considered for jury duty from serving. The 72-year-old Gipson said he decided to sponsor the measure after several elderly constituents complained that it was a hardship for them to go to the courthouse for jury duty.
"They've told me it's going to be trouble going down there," Gipson said.
At one time, people over 70 were automatically excluded from pools of potential jurors in Alabama, said committee chairman Rep. Marcel Black, D-Tuscumbia.
"There were people then who fussed because they were being excluded," Black said.
The practice of excluding jurors because of age, or for many other reasons, began to change when defense attorneys complained their clients were not being tried by a jury of their peers because of the number of people being automatically excused from serving.
During the 1977 trial of Robert Chambliss for the 1963 bombing of Birmingham's 16th Street Baptist Church, his attorneys argued that he was not tried by a jury of his peers because there was not anyone over 70 in the pool of potential jurors. Chambliss was 73 at the time. He was convicted of murder for the civil rights era bombing in which four black girls were killed. He died in prison in 1985.
Black said Gipson's bill is different because it does not prevent anyone who wants to serve from being called for jury duty.
Black, a Tuscumbia attorney, said he has found elderly people often make good jurors.
"They take it seriously and they are not in a hurry," Black said.
- - -
Judge honored for 25 years of service
By Jill Nolin, The Montgomery Advertiser
April 7, 2008
When a robe-cloaked, solemn-faced Charles Price walked into his courtroom last Friday and the deputy said "all rise" it didn't take him long to realize something was up.
His wife, Bernice, was sitting at the bench, and familiar faces of family and friends filled the courtroom as Price walked into a surprise party that celebrated his 25 years on the bench in Montgomery County.
The 67-year-old Price is a hard man to fool -- and he knew some of the attorneys in the room Friday morning had no business before his court.
It must have reminded him of another feeling he had in the 1970s when he was appointed to serve as acting district attorney for Escambia County, a rural part of Alabama with residents who had likely never seen a black attorney.
Lawyers with no pending cases packed the courthouse that day to see the new district attorney -- who was the first black district attorney in Alabama -- in action during preliminary hearings. Attorney General Bill Baxley, who appointed Price, caught flack for the decision. But when it was time for Price to return to the attorney general's office several months later, Baxley was chastised for that decision too -- the residents wanted Price to stay.
"I was good at my job and I knew what I was doing," Price said when asked how he won the residents' esteem.
He fought for tough sentences and went after deadbeat dads who shirked paying child support. He increased the hours of operation at his office and set a policy that is one that he maintains to this day -- he stresses to his staff the importance of service to those who have not had privileges in life and who are seeking answers.
In fact, it's the first thing he asks potential employees -- how do you feel about working with poor people?
"I can teach them how to write orders, but can you deal with poor people who need us to help them understand what is going on?" Price asked.
Price attributes this to his humble upbringing, but his passion for practicing law and looking out for what he calls "the least among us" comes from elsewhere.
"The hero of all of this and the reason for my being who I am -- the success I have -- is the movement led by Dr. Martin Luther King, who was a hero to all of us growing up at the time," Price said.
Price grew up in the Montgomery area and graduated from George Washington Carver High School before serving in the U.S. Army -- three years as a Green Beret and three years with the 82nd Airborne Division.
On April 4, 1983, Price was appointed by Gov. George C. Wallace to serve as the first black circuit court judge in Alabama, according to a letter of commendation written by Gov. Bob Riley to recognize Price's 25-year milestone.
Price prides himself on looking out for the "least among us," but he also beams when he talks about the tough, politically-motivated cases that have landed on his desk.
It was in 1996 when a case involving fellow circuit court Judge Roy Moore ended up in his courtroom by chance.
The state of Alabama -- specifically, Gov. Fob James and Attorney General Jeff Sessions -- wanted a final determination on the legality of Moore's Ten Commandments plaques hanging in his courtroom. Price was also to decide whether Moore should be allowed to open each session with a prayer.
After careful consideration, Price ruled that conducting prayer "in the presence of individuals who have been summoned by legal process for jury duty" violates the First and Fourteenth Amendments.
Price allowed the Ten Commandments to stay, as long as they were displayed with other historical or educational items.
More than two months later, Price revisited that ruling. He drove to the Etowah County Courthouse and -- with deputies at his sides -- saw the plaques, hanging prominently behind Moore's bench, for himself.
"It is obvious that the sole purpose for the plaques hanging in the courtroom in such a fashion is 'purely religious,' " Price wrote in his Feb. 10, 1997, final order.
Price also wrote in his order: "(The Ten Commandments) may be displayed in every church, synagogue, temple, mosque, home and storefront. They may be displayed in cars, on lawns and in corporate boardrooms. Where this precious gift cannot and should not be displayed as an obvious religious text or to promote religion is on government property."
For his decision, Price was awarded the John F. Kennedy Profile in Courage award in 1997. The award, which is given to elected officials, recognized Price's devotion to the principles of the U.S. Constitution.
"You don't go out looking for awards. You do your job and if they come, they come and if they don't, they don't," Price said.
Price, who has run unopposed since 1983, is seeking reelection for the fifth time this year. He plans for it to be his last six years on the bench.
Price said he's proud of his career and his achievements, although he didn't reach his ultimate goal of being attorney general.
"There's nothing left for me to do. You have to pass the baton to the next generation, but you have to make sure the next generation is ready," he said.
- - -
Elections for Judges Are Getting Nastier – The Wisconsin Supreme Court race is just one example of what's ahead
By Emma Schwartz, NEWSWEEK Magazine
April 4, 2008
Not once in more than 40 years has an incumbent Wisconsin Supreme Court justice lost an election—not, that is, until this week, when a business-backed circuit judge narrowly defeated the first African-American to serve on the state's highest court.
But the victory of Michael Gableman over Louis Butler was important not only because the former district attorney is likely to nudge the court to the right. It stood out because the race came with such cost, partisanship, and confrontation—hardball trends that are expected to play out in judicial races nationwide. At an estimated $5 million, the cost of the Wisconsin race set records, and its campaign ads—largely sponsored by outside groups—were so negative and in some cases so misleading that they were criticized by a state watchdog group.
One of Gableman's ads falsely implied that Butler had gotten out of jail a convicted rapist who then committed a second sexual assault. (In fact, the second assault occurred after the man served his full sentence.) Another ad by the pro-Butler teachers union accused Gableman of sentencing child sex offenders far below the maximum, but it used the example of an offender who received a higher sentence than the one the prosecutor recommended.
The tactics in the Wisconsin race exemplify a broader shift in judicial elections nationwide. There are nearly 40 other state Supreme Court races ahead this year, some of which are already gaining attention—particularly in states where the outcome could tilt the political balance of the court. The Mississippi high court has four seats up for election; Washington has three; and in West Virginia, where half of the five-member Supreme Court has come under scrutiny over connections to a top businessman and campaign contributor, two seats are contested.
Though costly and contested judicial elections have long been common in states like Ohio and Illinois, the battleground has now spread to places more commonly known for more civil judicial politics. "Groups that had previously focused on trying to influence lawmaking," says Mike McCabe, executive director of Wisconsin Democracy Campaign, "now want to impact how laws are interpreted and enforced."
The change stems partly from the growth of tort reform in state electoral politics. Realizing that the courts could have the final say in tort reform laws, both business and plaintiffs' lawyers are now putting more money into supporting friendly judicial candidates. Their efforts were aided by a 2002 U.S. Supreme Court ruling that held that Minnesota's rule barring judicial candidates from discussing political issues violated their First Amendment rights. Judicial candidates were now free to take political stances on hot-button issues like abortion, and the result, some observers say, is more partisan judicial contests.
Indeed, the median amount raised in judicial campaigns in 2006 was $243,910, up from $201,623 six years before. In 2006, five of the 10 states with private financing set spending records, including Alabama, which raised $13.4 million in five state Supreme Court races, according to the Brennan Center for Justice. Outside groups have added to these amounts, spending 2½ times more on television ads in the 2004 and 2006 cycles than in the previous two. And increasingly, this money is coming from the business community, which represented 44 percent of all campaign money—twice the percentage of donations from lawyers, according to the Brennan Center.
It's not only judicial elections that are coming under scrutiny this year. In a handful of states, merit-based selection panels are facing questions of political manipulation and attracting the interest of groups like the Federalist Society. Under the merit system, various panels, composed of governors' appointees and lawyers, usually appointed by the state bar, nominate candidates for appointment by the governor.
The center of the action for merit-based selection is Missouri, where there are dueling proposals to overhaul the state's seven-member panel. The key criticism is that the lawyer-dominated panel is too secretive and dominated by liberal-leaning bar members. "The way it's worked out in Missouri, there is an enormous amount of political pressure," says Jonathan Bunch, executive director of Better Courts for Missouri, which is pushing to increase the number of members and limit the number of lawyers on the panel, as well as make the process more public.
Opponents, however, say these proposals would shift too much power into the hands of the governor without sufficient checks and balances. "It's really not merit selection, it's really just partisanship," says Seth Andersen, executive vice president of the American Judicature Society.
Back in Wisconsin, however, the question of reform centers on what role the rising costs of elections have on the judicial system. Special interests added $4 million to the $1 million that Gableman and Butler spent on the Supreme Court race. Business and conservative groups backed Gableman, while liberal groups and the teachers union aided Butler.
Business groups said their increasing interest in the Supreme Court stemmed from the changing tone of the court, notably some of Butler's rulings they perceived as anti-business. Many singled out a 2005 opinion that allowed a class action lawsuit against the paint industry to go forward even though the plaintiff could not prove which company caused the lead poisoning. (Ultimately, however, the plaintiff did not win.)
Liberal groups similarly saw the court in balance. That's why this year's race included heavy spending from the teachers union, which jumped in for Butler after seeing business outspend the liberal groups and win in last year's Supreme Court race.
Yet the big spending, at least in Wisconsin, seems likely to continue. A bill creating public financing for judicial elections passed the Democratic Senate in February but was not brought to a vote in the Republican-controlled House. And the negative ads may be here to stay. In both cases, the results for the judiciary could be harsh, critics say. "These outside ads kind of bloody both candidates regardless of who wins," says Jon Wilcox, a former Wisconsin Supreme Court justice. "It's very corrosive to the court system itself."
- - -
Judges tainted by nasty election races – [Editorial]
Mobile Press-Register
Wednesday, April 02, 2008
THANK GOD for Wisconsin.
The home of badgers and cheeseheads is threatening to replace Alabama as the state with the nation's nastiest, most expensive judicial races.
Alabama gained that dubious honor in 2006, when the current chief justice of the state Supreme Court, Sue Bell Cobb, and her opponent in the race for the state's loftiest judicial perch, Drayton Nabers, slugged it out in a campaign that featured thousands of television commercials, many of them negative. Chief Justice Cobb and then-Chief Justice Nabers raised and spent more than $7 million in that contest.
The Cobb-Nabers race battered the principles of judicial independence, fairness and impartiality almost beyond recognition. But, believe it or not, two candidates vying for a seat on the Wisconsin Supreme Court are in the process of outspending and out-nastying Chief Justice Cobb and Mr. Nabers.
Wisconsin residents have been subjected to millions of dollars worth of TV ads sponsored by outside groups supporting either Justice Louis Butler or his challenger, Circuit Judge Michael Gableman.
Many of those ads claimed Justice Butler "sided with criminals 60 percent of the time." Ads run by groups favoring Justice Butler accused Judge Gableman of securing his seat on the bench with a campaign donation to the state's former governor.
Wisconsin, like Alabama before it, is getting a lot of well-deserved negative national attention for the way it chooses judges. Alabama and Wisconsin are among the 21 states that hold judicial elections. In 29 states, judges are appointed by either the governor or the Legislature.
Partisan differences and ideological conflict have fueled much of the judicial campaign spending in Alabama and Wisconsin. These are normal and healthy elements of the political process. But the judiciary is different from the executive and legislative branches of government.
Judges are supposed to be fair and impartial arbiters of the law. They represent the law -- or should represent the law -- not a particular political point of view or coalition of interests.
Fairness and impartiality are compromised by costly judicial campaigns funded by powerful interest groups.
Chief Justice Cobb has proposed what she sees as a solution to Alabama's high-priced, low-road judicial campaigns: Make the process of selecting and retaining judges nonpartisan. Her plan would be an improvement over the state's current system of partisan elections, but it doesn't go far enough to ensure the dignity and independence of the judiciary.
Wisconsin provides proof that Chief Justice Cobb's proposal wouldn't clean up the judicial selection process. Justice Butler and Judge Gableman are having a knock-down, drag-out struggle in a nonpartisan election.
Alabama needs to adopt the Missouri Plan, which takes the worst of the politics out of selecting judges while preserving public accountability for performance on the bench.
A survey published by the Cato Institute found that states with appointed judges rated higher on judicial quality than states like Alabama that elect judges.
The Legislature should use the survey's findings as a starting point for a discussion of the merits of the Missouri plan.
- - -
