How important are judges?
By Cheryl Chumley, The San Francisco Examiner
9-28-07
WASHINGTON - Judges chosen via partisan elections tend to be more likely to favor plaintiffs and liability lawyers than those who are appointed or selected via non-partisan processes, according to research noted by Forbes.com.
The research pointed especially to relationships between elected judges and liability lawyers in Alabama, Texas and West Virginia.
“In research published in the Journal of Law and Economics ... [the researchers] found that awards against out-of-state defendants were 42 percent higher in states that use partisan elections to select their judges than in states that appoint judges,” to the tune of $363,000 per case, Forbes.com reported.
How can that be? Both Forbes and a 2006 Judicial Hellholes report from the American Tort Reform Association offer the same possibility, by way of a quote from a former West Virginia Supreme Court of Appeals justice.
“As long as I am allowed to redistribute wealth from out-of-state companies to in-state plaintiffs, I shall continue to do so,” Judge Richard Neely reportedly said.
Sometimes, liability lawyers become quite candid about how they believe they have gained an advantage with particular judges. The Houston Chronicle reported earlier this month on a 2001 letter from Texas plaintiff lawyer Mikal Watts to his opposing counsel with American Electric Power, an out-of-state firm named as a defendant in a suit stemming from an auto accident.
Watts was encouraging the opposing side to settle for $60 million by describing what he believed to be for it the unfamiliar lay of the legal land in South Texas courts. “Politely put, south Texas venue by itself makes this a very dangerous lawsuit,” he said in his letter.
Then he pointed out that if American Electric Power did take the case to court and lose, its appeal would go to the 13th Court of Appeals in the Texas judiciary. “This court is comprised of six justices, all of whom are good Democrats. The Chief Justice, Hon. Rogelio Valdez, was recently elected with our firm’s heavy support, and is a man who believes in the sanctity of jury verdicts.”
Watts wasn’t kidding, either, because his firm had contributed more than $80,000 to several of the appeals judges’ campaigns in previous years. And he went on to note that his firm was involved in the re-election effort of one of the judges even as he composed his letter.
Such threats don’t always work, however, as Watts told the Chronicle that the appeals court subsequently overturned a $122 million judgment against AEP.
"Lawyers Gone Wild" is a series of special reports by The San Francisco Examiner looking at the cost and consequences of class action lawsuit abuse in the United States.
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Supreme Court ruling sought on bar's jurisidiction in DuBose case
By Jim Cox Editor & Publisher, The Clarke County Democrat
September 20, 2007
The Alabama State Bar Association filed a writ of mandamus with the Alabama Supreme Court last week, seeking to retain jurisdiction in the Stuart DuBose attorney misconduct case.
Tony McLain, general counsel for the bar association, explained that the bar's Board of Disciplinary Appeals acted on an appeal filed by DuBose about three weeks ago, ruling in DuBose's favor that the bar no longer has jurisdiction in the matter because DuBose is now a circuit judge.
McLain said the bar contends that the misconduct occurred before DuBose was elected to office and while he was an attorney in private practice and that it does have proper jurisdiction to hear and act on the matter. That was the basis of the bar's appeal to the Supreme Court.
The bar's disciplinary commission last fall accepted a "conditional guilty plea" from DuBose that would have imposed a 45-day suspension of his law license. The suspension would have fallen in such a fashion as to not affect his eligibility to be elected and to hold office as a circuit judge.
DuBose defeated an opponent in the June 2006 Democratic primary and was elected without opposition in the November general election.
The Alabama Supreme Court rejected the disciplinary action. Eight out of nine justices said the penalty wasn't severe enough and sent it back to the bar's disciplinary committee for its reconsideration.
The case involved DuBose's 2003 preparation of a will for Joseph Sullivan at the request of Cheryl Weaver who was made the soul beneficiary. DuBose never conferred with Sullivan about the will.
Sullivan died and the will was contested but withstood the contest.
DuBose eventually became administrator of the estate, valued at several million dollars. He and Weaver were embroiled in a dispute over DuBose's hefty legal fee as well as control of other matters of the estate and the matter was set to go to trial last fall but was settled and the settlement terms not disclosed.
The case came to the forefront again in recent weeks when the judge in the case, Judge John Lockett of Mobile, ruled that the settlement provisions had not been followed. He ordered a judgment against DuBose and the Sullivan estate and in favor of Weaver of nearly $1.2 million and further ordered DuBose to convey to Weaver 605 acres that he had divided between himself and Weaver. McLain did not say when he thought the Supreme Court might act on the bar's appeal.
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Judges pay when salaries tied to lawmakers'
By Laura Parker, USA TODAY
September 23, 2007
In 31 years as a trial judge in New York, Joseph DeMaro has received two raises, the last in 1999. In the eight years since, he has watched law clerks hired by Manhattan law firms as first-year associates get salaries far outpacing the $136,700 he earns annually.
New York Gov. Eliot Spitzer and legislators in Albany are sympathetic. They had agreed to a salary increase for the state's 1,218 judges that would boost the salary of DeMaro and other trial judges in New York to $165,200 a year. The proposal then became entangled in other political issues, including legislators' pay raises, and died when the Legislature adjourned in a stalemate in June.
JUDGES LEAVING BENCH: Pay gap dismays federal judges
DeMaro and six other judges now are suing the Legislature and governor to force the raise. "Judges are furious," DeMaro says. The political fight over other issues, he says, "is totally irrelevant" to what he and his colleagues see as a growing crisis over judicial pay.
The political meltdown in Albany embodies a problem that plagues state courts across the USA. Judges' salaries are tied to those of lawmakers, sometimes by law and sometimes by tradition. Lawmakers are traditionally skittish about raising their own pay, especially in election years. Consequently, judges often go years without pay increases.
Lag between raises
Last year, seven states raised judicial salaries that had not done so for at least five years, according to the National Center for State Courts. Although most state judges' salaries have been rising in recent years, the raises often don't completely make up for the long stretches between them.
Supreme court justices in many states earn less than hundreds of other public employees, including police chiefs, city officials and college and university employees, the center found.
In Ohio, judges receive regular cost-of-living increases. But they haven't had an increase in base pay for seven years, says State Supreme Court Justice Thomas Moyer, who earns $100,000 less than the dean of the Ohio State University Law School. Ohio is the eighth most populous state in the nation, but Moyer says it ranks 28th in judicial pay.
"We have steadily dropped in our standing," he says. "With 40,000 lawyers in the state, there should be highly competent lawyers applying for judgeships. We have enough, but not nearly the number that we should have."
The situation in New York is most acute among the 50 states, an analysis by the National Center found. When cost-of-living is accounted for, New York ranks 48th in judicial pay. Other New York findings:
•Before 2005, judges rarely borrowed against their state pensions. As of March, 117 judges, or 10% of the entire New York judiciary, had pension loans.
•More than 1,350 professors in the state and city university system earn more than a New York trial judge. Salaries for more than 1,000 professors exceed $150,000 a year.
•Non-judicial employees of the court system have received regular pay increases totaling 24% since 1999. Hundreds of those employees now earn more than the judges for whom they work.
"There has not been a dissenting voice in the corridors of government. Everybody thinks there should be a raise, but yet it's not bankable," says New York Chief Judge Judith Kaye, who also has threatened to sue if the Legislature and governor do not resolve their impasse soon.
Last week, she met with 65 new associates at a big law firm in New York City. "Every one of them makes more than the chief judge, and they're not even admitted to the bar," she says.
Independent boards set up
To free judge pay raises from the whims of lawmakers, 22 states have set up independent compensation commissions to determine judicial salaries.
Oregon became the latest to do so when lawmakers also gave judges there a 19.4% raise in July. State Supreme Court Justice Paul DeMuniz enlisted Oregon business leaders to help him persuade reluctant lawmakers to act.
"We were having difficulty attracting skilled lawyers from private practice," he says. "It was the first time the business community saw a connection between economic growth and stable funding for courts."
A political brawl playing out in Pennsylvania underscores the perils of linking judges' and legislators' raises.
Pennsylvania judges went a decade without any raise in base pay, according to Stuart Ditzen, a spokesman for the Administrative Office of Pennsylvania Courts. In July 2005, the Legislature raised salaries for lawmakers, judges and other state officials — during a 2 a.m. vote that enraged voters and led to the defeat of at least six legislative leaders that November. Voters also ousted Pennsylvania Supreme Court Justice Russell Nigro — the first time in state history, Ditzen says, that a high-court justice was voted off the bench.
After the election, the Legislature repealed the pay raise for everyone. In September 2006, the Pennsylvania State Supreme Court upheld the pay raise for more than 1,000 state judges, Ditzen says. The court's decision further fueled a citizens' revolt. The activist group that helped defeat Nigro — called PA Clean Sweep — is now campaigning to persuade voters to defeat 66 of the 67 judges on the November ballot. One judge who returned her pay increase to the state treasury has been spared the organization's wrath, says the group's founder, Russ Diamond.
Andrew Susko, a Philadelphia lawyer and president of the Pennsylvania Bar Association, calls the effort irresponsible and misguided. "The idea that we would lose that many judges all at once would substantially undermine the quality of justice in Pennsylvania," he says.
Diamond, a 44-year-old manufacturer of CDs who lives in Annville, 28 miles east of Harrisburg, says it's time for voters to show their muscle. Ironically, he says he's not opposed to paying judges good salaries.
"It's not about how much money a judge makes," he says. "That can be discussed. It's about the way they got it."
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Hard Case: Job Market Wanes for U.S. Lawyers Growth of Legal Sector Lags Broader Economy;
Law Schools Proliferate
By AMIR EFRATI, The Wall Street Journal
September 24, 2007
A law degree isn't necessarily a license to print money these days.
For graduates of elite law schools, prospects have never been better. Big law firms this year boosted their starting salaries to as high as $160,000. But the majority of law-school graduates are suffering from a supply-and-demand imbalance that's suppressing pay and job growth. The result: Graduates who don't score at the top of their class are struggling to find well-paying jobs to make payments on law-school debts that can exceed $100,000. Some are taking temporary contract work, reviewing documents for as little as $20 an hour, without benefits. And many are blaming their law schools for failing to warn them about the dark side of the job market.
The law degree that Scott Bullock gained in 2005 from Seton Hall University -- where he says he ranked in the top third of his class -- is a "waste," he says. Some former high-school friends are earning considerably more as plumbers and electricians than the $50,000-a-year Mr. Bullock is making as a personal-injury attorney in Manhattan. To boot, he is paying off $118,000 in law-school debt.
"Unfortunately, some find the practice of law is not for them," Seton Hall's associate dean, Kathleen Boozang, said through a spokeswoman. "However, it is our experience that a legal education is a tremendous asset for a variety of professional paths."
A slack in demand appears to be part of the problem. The legal sector, after more than tripling in inflation-adjusted growth between 1970 and 1987, has grown at an average annual inflation-adjusted rate of 1.2% since 1988, or less than half as fast as the broader economy, according to Commerce Department data.
Some practice areas have declined in recent years: Personal-injury and medical-malpractice cases have been undercut by state laws limiting class-action suits, out-of-state plaintiffs and payouts on damages. Securities class-action litigation has declined in part because of a buoyant stock market.
On the supply end, more lawyers are entering the work force, thanks in part to the accreditation of new law schools and an influx of applicants after the dot-com implosion earlier this decade. In the 2005-06 academic year, 43,883 Juris Doctor degrees were awarded, up from 37,909 for 2001-02, according to the American Bar Association. Universities are starting up more law schools in part for prestige but also because they are money makers. Costs are low compared with other graduate schools and classrooms can be large. Since 1995, the number of ABA-accredited schools increased by 11%, to 196.
Evidence of a squeezed market among the majority of private lawyers in the U.S., who work as sole practitioners or at small firms, is growing. A survey of about 650 Chicago lawyers published in the 2005 book "Urban Lawyers" found that between 1975 and 1995 the inflation-adjusted average income of the top 25% of earners, generally big-firm lawyers, grew by 22% -- while income for the other 75% actually dropped.
According to the Internal Revenue Service, the inflation-adjusted average income of sole practitioners has been flat since the mid-1980s. A recent survey showed that out of nearly 600 lawyers at firms of 10 lawyers or fewer in Indiana, wages for the majority only kept pace with inflation or dropped in real terms over the past five years.
The news isn't any better for the 14% of new lawyers who go into government or join public-interest firms. Inflation-adjusted starting salaries for graduates who go to work for public-interest firms or the government rose 4% and 8.6%, respectively, between 1994 and 2006, according to the National Association for Law Placement, which aggregates graduate surveys from law schools. That compares with at least an 11% jump in the median family income during the same period, according to the Census Bureau. Graduates who become in-house company lawyers, about 9%, have fared better: Their salaries rose by nearly 14% during the same period.
Many students "simply cannot earn enough income after graduation to support the debt they incur," wrote Richard Matasar, dean of New York Law School, in 2005, concluding that, "We may be reaching the end of a golden era for law schools."
Meanwhile, the prospects for big-firm lawyers are growing richer. While offering robust minimum salaries, those firms are paying astronomical amounts to their stars.
Now, debate is intensifying among law-school academics over the integrity of law schools' marketing campaigns. Defenders argue that the legal profession always has been openly and proudly a meritocracy: Top entrance-exam scores help win admittance to top schools where top students win jobs at top firms. Even the system that is used to issue law-school grades -- a curve that pits student against student -- reflects the law profession's competitiveness.
David Burcham, dean of Loyola Law School in Los Angeles, considered second-tier, says the school makes no guarantees to students that they will obtain jobs. He says it is problematic that big firms only interview the top of the class, "but that's the nature of the employment market; it's never been different."
For the majority of students and alumni, he says, Loyola "turned out to be a good investment."
Yet economic data suggest that prospects have grown bleaker for all but the top students, and now a number of law-school professors are calling for the distribution of more-accurate employment information. Incoming students are "mesmerized by what's happening in big firms, but clueless about what's going on in the bottom half of the profession," says Richard Sander, a law professor at the University of California-Los Angeles who has studied the legal job market.
"Prospective students need solid comparative data on employment outcomes, [but] very few law schools provide such data," adds Andrew Morriss, a law professor at the University of Illinois who has studied the market for new lawyers.
Students entering law school have little way of knowing how tight a job market they might face. The only employment data that many prospective students see comes from school-promoted surveys that provide a far-from-complete portrait of graduate experiences. Tulane University, for example, reports to U.S. News & World Report magazine, which publishes widely watched annual law-school rankings, that its law-school graduates entering the job market in 2005 had a median salary of $135,000. But that is based on a survey that only 24% of that year's graduates completed, and those who did so likely represent the cream of the class, a Tulane official concedes.
On its Web site, the school currently reports an average starting salary of $96,356 for graduates in private practice but doesn't include what percentage of graduates reported salaries for the survey.
"It's within most individuals' nature to keep that information private, unless it's a high amount," says Carlos Dávila-Caballero, assistant dean for career development at Tulane, who adds that his office tells prospective students to use the median figure as a guide because starting salaries vary widely.
Academics who have studied new-lawyer salaries say that the graduate surveys of many law schools are skewed by higher response rates from the most successful students. The National Association for Law Placement, which aggregates and publishes national data based on those surveys, concedes that it can't vouch for their accuracy. "We can't validate the figures; we have to rely on schools to report to us accurately," says Judy Collins, NALP's director of research.
A prospective student studying NALP data might conclude that the study of law is a sure path to financial security. For 2006 graduates who entered private practice, or nearly 60%, NALP shows a national median salary of $95,000, a rise of 40%, adjusted for inflation, from 1994 graduates.
The NALP data also show that the percentage of graduates employed in private practice has been steady, fluctuating between 55% and 58% for more than a decade. But in law schools' self-published employment data, "private practice" doesn't necessarily mean jobs that improve long-term career prospects, for that category can include lawyers working under contract without benefits, such as Israel Meth. A 2005 graduate of Brooklyn Law School, he earns about $30 an hour as a contract attorney reviewing legal documents for big firms. He says he uses 60% of his paycheck to pay off student loans -- $100,000 for law school on top of $100,000 for the bachelor's degree he received from Columbia University.
A glossy admissions brochure for Brooklyn Law School, considered second-tier, reports a median salary for recent graduates at law firms of well above $100,000. But that figure doesn't reflect all incomes of graduates at firms; fewer than half of graduates at firms responded to the survey, the school reported to U.S. News. On its Web site, the school reports that 41% of last year's graduates work for firms of more than 100 lawyers, but it fails to mention that that percentage includes temporary attorneys, often working for hourly wages without benefits, Joan King, director of the school's career center, concedes.
Ms. King says she believes the figures for her school accurately represent the broader graduating class. She says the number of contract attorneys is "minimal" but declined to give a number.
The University of Richmond School of Law in the last couple of years started to be more open about its employment statistics; it now breaks out how many of its grads work as contract attorneys. Of 57 2006 graduates working in private practice, for example, seven were contract employees nine months after graduation. Schools "should be sharing more information than they are now," says Joshua Burstein, associate dean for career services who put the changes in place. "Most people graduating from law school," he says, "are not going to be earning big salaries."
Adding to the burden for young lawyers: Tuition growth at law schools has almost tripled the rate of inflation over the past 20 years, leading to higher debt for students and making starting salaries for most graduates less manageable, especially in expensive cities. Graduates in 2006 of public and private law schools had borrowed an average of $54,509 and $83,181, up 17% and 18.6%, respectively, from the amount borrowed by 2002 graduates, according to the American Bar Association.
Students taking on such debt may feel reassured by incessant press reports of big firms scrambling to hire and keep associates. Making headlines this year was a bump up in big-firm starting salaries to $160,000 from $145,000 in many cities.
And indeed, some law graduates of lower-tier schools do find high-paying private-practice law jobs. In recent years big firms have boomed thanks in part to the globalization of business and Wall Street deal making; firms have been casting a wider net for new lawyers, though they still generally restrict their recruiting at lower-tier schools to students at the very top of the class or on the law review. Some students have leads on a job at a family member's or friend's practice.
But just as common -- and much less publicized -- are experiences such as that of Sue Clark, who this year received her degree from second-tier Chicago-Kent College of Law, one of six law schools in the Chicago area. Despite graduating near the top half of her class, she has been unable to find a job and is doing temp work "essentially as a paralegal," she says. "A lot of people, including myself, feel frustrated about the lack of jobs," she says.
Harold Krent, Chicago-Kent's dean, said it's not uncommon for new lawyers to wait a few months to more than a year to find a job that's a good fit. He added that there is a "small spike" in employment after his school's grads receive their bar-exam results, several months after graduation, because some firms wait until then before hiring.
The market is particularly tough in big cities that boast numerous law schools. Mike Altmann, 29, a graduate of New York University who went to Brooklyn Law School, says he accumulated $130,000 in student-loan debt and graduated in 2002 with no meaningful employment opportunities -- one offer was a $33,000 job with no benefits. So Mr. Altmann became a contract attorney, reviewing electronic documents for big firms for around $20 to $30 an hour, and hasn't been able to find higher-paying work since.
Some un- or underemployed grads are seeking consolation online, where blogs and discussion boards have created venues for shared commiseration that didn't exist before. An anonymous writer called Loyola 2L, purportedly a student at Loyola Law School, who claims the school wasn't straight about employment prospects, has been beating a drum of discontent around the Web in the past year that's sparked thousands of responses, and a fan base. ("2L" stands for second-year law student.) Some thank "L2L" for articulating their plight; others claim L2L should complain less and work more. Loyola's Dean Burcham says he wishes he knew who the student was so he could help the person. "It's expensive to go to law school, and there are times when you second-guess yourself as a student," he says.
Some new lawyers try to hang their own shingle. Matthew Fox Curl graduated in 2004 from second-tier University of Houston in the bottom quarter of his class. After months of job hunting, he took his first job working for a sole practitioner focused on personal injury in the Houston area and made $32,000 in his first year. He quickly found that tort-reform legislation has been "brutal" to Texas plaintiffs' lawyers and last year left the firm to open up his own criminal-defense private practice.
He's making less money than at his last job and has thought about moving back to his parents' house. "I didn't think three years out I'd be uninsured, thinking it's a great day when a crackhead brings me $500."
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Intense judicial election expected
RICK BRUNDRETT, The Charlotte Observer
September 23, 2007
Next year's election of an S.C. Supreme Court justice likely will be just as intense as the one in May, which featured -- for the first time -- a televised attack ad against the candidate who was elected.
How should judicial candidates and the state lawmakers who elect them react to outside interest groups?
Supreme Court Chief Justice Jean Toal said that while outside groups have free speech rights, judicial candidates ethically should disavow any outside pressure to get them to "promise in advance" how they would rule on particular cases.
"That's when the line is crossed," Toal said. "That is completely contrary to what the rule of law is about."
Greenville-based Conservatives in Action ran a television ad in the Spartanburg area in May branding Supreme Court candidate Donald Beatty of Spartanburg as an "ultra-liberal Democrat partisan" and urging three GOP Spartanburg lawmakers to oppose him.
Beatty was elected over two colleagues on the state Court of Appeals for the seat of retired Justice E.C. Burnett, becoming only the third African American in S.C. history to join the state's highest court.
Taft Matney, a spokesman for Conservatives in Action, said his organization "definitely will be watching what happens" in the early 2008 election to fill the seat of retiring Justice James Moore of Greenwood and other lower court seats.
"Our people will be conducting research on the candidates," he said, describing his organization's mission as "purely educational," adding the group "didn't support any candidate" in the last Supreme Court election. He said the group opposed Beatty's "ideology," though it didn't specifically call for a vote against him.
Toal said she would support legislation requiring some level of "public disclosure" of the membership of special interest groups that run "anonymous advertisements" that "try to bully legislators by characterizing candidates based on their perceived agenda."
"It's an enormous threat to judicial independence," she said, describing the May ad about Beatty as "racist and inaccurate." The two unsuccessful candidates for Burnett's Supreme Court seat are white.
The ad said, in part: "As a legislator, Beatty opposed a measure to prohibit public funding of abortion. He also voted against gun rights, and opposed tax and spending cuts. And, according to a recent judicial evaluation, Judge Beatty scored much lower than the other two candidates. South Carolina doesn't need an ultra-liberal Democrat partisan on the state Supreme Court. We need somebody who represents South Carolina values."
Matney denied the ad was racist or inaccurate. "I don't know what abortion funding, gun rights ... have to do with the color of a person's skin."
Matney compared his organization's activities to political and other types of blogs that are anonymous.
"You can't have First Amendment rights with a caveat," he said.
Two candidates for Moore's seat next year -- S.C. Court of Appeals Chief Judge Kaye Hearn and Court of Appeals Judge John Kittredge -- expressed concerns about the influence of special interest groups in the last election.
"What I hope we want in South Carolina are judges who follow the rule of law, not judges who pander to any special interest groups," said Hearn, who lost to Beatty in the May race.
Kittredge, who didn't run in the May election, cited a 2002 U.S. Supreme Court decision that said Minnesota's requirement that judges not discuss political issues was unconstitutional. But he said he would not take advantage of his free speech rights in a judicial campaign.
"It's highly inappropriate for a judge to state his or her views on a particular case that would come before his or her court," he said.
Longtime Columbia attorney and former state lawmaker I.S. Leevy Johnson, one of the first black men to be elected to the legislature since Reconstruction, said judicial candidates and lawmakers should disavow ads such as the one aired in May.
"I do not see it as an isolated situation," he said. "I believe that type of conduct is going to pollute future elections."
Conservatives in Action wasn't the only outside group involved with the last Supreme Court election.
An influential state business association, the S.C. Business and Industry Political Education Committee, threw its support behind S.C. Court of Appeals Judge Bruce Williams and warned it would consider how lawmakers voted in its ratings of them.
In the Running
At least seven candidates have expressed interest in the seat of retiring state Supreme Court Justice James Moore, said Jane Shuler, chief lawyer for the S.C. Judicial Merit Selection Commission. The application deadline is Friday; screening hearings will be held in early December; an election is tentatively set for Feb. 6.
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Edwards: Limit frivolous lawsuits
By JOAN LOWY, Associated Press
September 24, 2007
Democratic presidential candidate John Edwards, who made his fortune as a trial lawyer, says attorneys should have to show their medical malpractice cases have merit before filing them. He also said attorneys with a history of frivolous suits should be barred from filing new cases.
Edwards' proposal is similar to "certificates of merit" laws that have been adopted in several states in recent years. Those laws usually require that an independent doctor assert the validity of a malpractice case before it is filed.
Edwards also said that while reducing malpractice lawsuits, as many have advocated, is a good idea, it won't significantly affect health care costs.
"I do want to push back some on what I think is mostly insurance company-driven hysteria because I think the reality is that the cost associated with legal cases is well under 1 percent of our legal system," the former North Carolina senator said.
He spoke Monday at a health care forum organized by Families USA and the Federation of American Hospitals and hosted by the Kaiser Family Foundation.
Before a lawyer files a malpractice lawsuit, he ought to be required to have two experts certify that the case is both meritorious and serious, Edwards said.
If the lawyer fails to get this certification, the lawyer — not the patient — should bear the costs involved in preparing the case, Edwards said. If a lawyer fails to obtain certification three times, he should be prohibited from filing future malpractice cases, the candidate said.
"I think that the bulk of the problem is created when cases are filed in the legal system that should never be filed, and the results are years of litigation and costs that are incurred by the health care provider that should not have been incurred," Edwards said. "A lot of that responsibility goes to the lawyers."
Edwards has received about $7 million, or one third of his total fundraising, from donors who identify themselves as attorneys or lawyers.
Bill Schulz, a spokesman for the American Association for Justice, which represents trial lawyers, said that states have generally adopted certificate-of-merit laws as a compromise between the legal and medical communities.
For trial lawyers, "generally speaking it's been a kind of nothingburger," Schulz said. He noted that nationally the number of malpractice settlements and verdicts has declined slightly, from 14,408 in 2002 to 13,096 in 2005.
The forum was the first in a series designed to give top tier presidential candidates an opportunity to detail their health care views.
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Sandra Day O'Connor weighs in on judicial elections
The Associated Press
September 19, 2007
HARRISBURG, Pa. (AP) - Retired U.S. Supreme Court Justice Sandra Day O'Connor says Ben Franklin would probably have "a lot of pithy remarks" about the need for an independent judiciary if he was around these days.
O'Connor spoke today in Harrisburg to a meeting of Pennsylvania judges and lawyers.
She says she's disturbed by efforts to strip federal courts of jurisdiction, have judges impeached after unpopular decisions and eliminate the immunity judges and juries enjoy from civil claims based on their rulings.
O'Connor spoke about a push by the anti-incumbent activist group PACleanSweep to defeat all but 1 of the 67 municipal, county and appeals judges standing for retention in Pennsylvania in November.
O'Connor says voters shouldn't get carried away by an across-the-board proposition. She says it's the duty of citizens to know something about what they're voting on.
But PACleanSweep president Russ Diamond counters that he thinks it's more dangerous when judges ignore the constitution.
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Supreme Court ruling sought on bar's jurisidiction in DuBose case
By Jim Cox Editor & Publisher, The Clarke County Democrat
September 20, 2007
The Alabama State Bar Association filed a writ of mandamus with the Alabama Supreme Court last week, seeking to retain jurisdiction in the Stuart DuBose attorney misconduct case.
Tony McLain, general counsel for the bar association, explained that the bar's Board of Disciplinary Appeals acted on an appeal filed by DuBose about three weeks ago, ruling in DuBose's favor that the bar no longer has jurisdiction in the matter because DuBose is now a circuit judge.
McLain said the bar contends that the misconduct occurred before DuBose was elected to office and while he was an attorney in private practice and that it does have proper jurisdiction to hear and act on the matter. That was the basis of the bar's appeal to the Supreme Court.
The bar's disciplinary commission last fall accepted a "conditional guilty plea" from DuBose that would have imposed a 45-day suspension of his law license. The suspension would have fallen in such a fashion as to not affect his eligibility to be elected and to hold office as a circuit judge.
DuBose defeated an opponent in the June 2006 Democratic primary and was elected without opposition in the November general election.
The Alabama Supreme Court rejected the disciplinary action. Eight out of nine justices said the penalty wasn't severe enough and sent it back to the bar's disciplinary committee for its reconsideration.
The case involved DuBose's 2003 preparation of a will for Joseph Sullivan at the request of Cheryl Weaver who was made the soul beneficiary. DuBose never conferred with Sullivan about the will.
Sullivan died and the will was contested but withstood the contest.
DuBose eventually became administrator of the estate, valued at several million dollars. He and Weaver were embroiled in a dispute over DuBose's hefty legal fee as well as control of other matters of the estate and the matter was set to go to trial last fall but was settled and the settlement terms not disclosed.
The case came to the forefront again in recent weeks when the judge in the case, Judge John Lockett of Mobile, ruled that the settlement provisions had not been followed. He ordered a judgment against DuBose and the Sullivan estate and in favor of Weaver of nearly $1.2 million and further ordered DuBose to convey to Weaver 605 acres that he had divided between himself and Weaver. McLain did not say when he thought the Supreme Court might act on the bar's appeal.
Rants and Raves
The Montgomery Advertiser
September 13, 2007
RAVE: For an Alabama State Bar program to provide free wills and other basic legal products to first responders -- the firefighters, police officers and emergency medical personnel who so often risk their lives in times of crisis. Clinics will be held around the state in the coming months. It's a commendable service that first responders should not hesitate to use.
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Alabama Bar prepares free wills for first responders
The Associated Press
September 11, 2007
MONTGOMERY, Ala. (AP) — On the sixth anniversary of the terrorists attacks, the Alabama State Bar kicked off a program Tuesday to provide free wills and other basic legal documents to firefighters, law enforcement and emergency medical personnel.
"The events of 9-11 are a stark reminder of the extraordinary sacrifices that first responders make for the community every day," Bar President Samuel N. Crosby of Daphne said.
The first clinic in the "Wills for Heroes" program was held Tuesday afternoon at the Montgomery Police Department. It provided simple wills, advance healthcare directives and powers of attorney at no cost.
Other clinics will be held in Montgomery during October. The program moves to Mobile in October, Birmingham in November, and Huntsville and Dothan in early 2008.
Alabama's program is patterned after similar efforts in Arizona, South Carolina and Virginia. Those programs found that first responders are often between the ages of 25 and 35 and frequently don't have wills or healthcare directives.
"Preparing a will is the ultimate expression of caring that an individual can demonstrate. We are giving them the peace of mind of knowing that their affairs are in order and that their families will be provided for should the unthinkable happen," Crosby said.
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For Mobile attorney Gil Laden, volunteer work is a labor of love
By RENEE BUSBY, Mobile Press-Register
September 10, 2007
For Mobile attorney Gil Laden, volunteer work changed his life.
Volunteering his time with Georgia Legal Services helping mentally ill clients during his first summer break from school in the 1970s helped him decide on a career in law.
Years later, a volunteer function would help bring him together with his future wife.
Today, 30 years after he began practicing law, Laden is being recognized locally and statewide for his volunteer work with indigent clients in Mobile County. The 57-year-old Laden was recently named the 2007 Ben Kilborn Volunteer Lawyer of the Year by the Mobile Bar Association Volunteer Lawyers Program and was given the Alabama State Bar Pro Bono Award for 2007.
"Gil's just always willing to do what you ask him," said Michael Smith, chairman of the MBA's volunteer lawyer awards committee. "He's a very giving person and glad to do it."
This year, Smith said Laden took on a yearlong project to prepare a video about the volunteer lawyers program, which was distributed to social workers and service organizations to help get the word out about the group and what it does. "He's just trying to make the world a better place," said Smith.
Laden has been involved with the MBA's volunteer group since 1991, where he's served as chairman and been on its board for 17 years.
"Gil truly exemplifies the goals of the Mobile volunteer program with his desire to do everything in his power to ensure vital legal access is available," said Blakely H. Davis, executive director of the MBA's volunteer program.
Enid Laden said her husband loves volunteering his time to help others. "He feels like he's really helping people who need help," she said. "He is very concerned about others.
"He would give all our money away to charitable causes. He's just always been that way."
Long before Laden's volunteer efforts shaped the course of his life, in terms of his career and marriage, another life-changing event occurred.
Laden was six years old when a Mobile physician recommended hearing aids for the young boy. Later in life, that physician, Dr. Milton Leigh, would play another role in Laden's life. Leigh became Laden's father-in-law 23 years ago when Laden married Leigh's daughter, Enid. "I've had a lifelong hearing loss," said Laden. "That's something that has affected everything I do." Laden said doctors never determined the cause of his hearing impairment. In fact, he said, for years his mother received "conflicting advice" about what could be done to help him.
"Nobody's really sure if something happened during pregnancy or birth," he said. As a consequence of spending years without the hearing aids, Laden said his speech was "so garbled" he required speech therapy.
"She had me doing recitals, speeches in front of people," said Laden of his speech therapist. "So I got used to public speaking in elementary school." Laden, who attended Old Shell Road Elementary School, recalled that his first grade teacher told his mother "she didn't think I was going to make it."
Laden said the teacher "wasn't being mean," she just wanted his mother to realize that it wouldn't be easy for him. Laden said his mother never forgot that teacher's comments. So when he graduated from Emory University with a degree in chemistry, his mother tracked down the teacher to tell her Laden had graduated from college.
"That was just a proud mother," said Laden.
After receiving his chemistry degree, Laden said he considered going to medical school, but he opted for dental school. "I knew I was in trouble when I worked in a lab with 104 people, and the professor was talking over a public address system, and that's not good for someone with hearing problems." He eventually dropped out.
Looking back, he said the experience taught him a valuable "life lesson." "I learned I wasn't as assertive as I should have been about my hearing loss," he said. "I had always wanted to succeed on my own without any help."
Worried that his parents might be disappointed that he dropped out of dental school, Laden decided to go to law school. He enrolled in Mercer University School of Law. Unlike dental school, his law classes were smaller and the professors "spoke more clearly."
"I said, 'I've got to dig down, work harder and grind it out,' and that's what I did."
After his first year of law school, he followed a classmate to Georgia Legal Services to do volunteer work for the summer.
"That summer was such a great experience for me," he recalled. "There were a lot of energetic, idealistic lawyers who primarily represented indigent clients in rural areas."
"I got to represent mentally ill clients, to deal with the most vulnerable people in our society, the mentally ill," said Laden. "I just saw such a spark of humanity in all of that."
After graduating from law school he went to work for Georgia Legal Services handling different types of cases, including poverty law, landlord/tenant issues and Social Security disability cases.
"It made me realize the legal profession is something I wanted to do," said Laden, who handles mostly Social Security disability cases. "That gave me my first exposure to representing indigent people.
"That was quite an eye-opener."
Laden said he knows "law was just the most natural thing for me to be in." Doing trial work, he said, forced him to "be on my toes."
"I didn't want to miss anything," he said. "When you have a hearing loss you don't just depend on your hearing aids." Through his speech therapist, he learned to read facial expressions, which eventually helped him in trials working with juries and questioning witnesses.
"I hear just as much with my eyes as I do with my ears."
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Public defenders inept - State pay too low for good court-appointed attorneys [Opinion]
By CHRISTOPHER HILL, Atlanta Journal-Constitution
09/10/07
Whenever athletes are looking to renegotiate their contracts and say, "it's not about the money," it's usually about the money. When Chris Adams resigned as director of the Georgia Capital Defender's Office 11 days ago, it was also about the money.
The Georgia Public Defender Standards Council, which funds Adams' office, was created four years ago to ensure indigent defendants receive zealous and qualified representation. But in his resignation letter, Adams said his office could not provide the representation its clients deserved with only a $4.3 million budget — less than half of what was requested from the Defender Council.
Unfortunately, this situation is not isolated. Defendants in capital trials are constitutionally entitled to, and are in desperate need of, qualified counsel. Virtually all cannot afford to hire attorneys and must turn to public defenders or court-appointed attorneys, both of whom are funded by the state. Public defenders are almost always overworked and underfunded. Court-appointed attorneys are almost always grossly underpaid and often unqualified to take on capital cases.
Unfortunately, these deficiencies almost invariably result in substandard representation. Inadequate representation for a capital client can be deadly. The American Bar Association issued guidelines that define adequate counsel in capital cases, including performance standards, level of expertise, investigation responsibilities and client contact, among other important criteria. The U.S. Supreme Court has cited these guidelines on a number of occasions.
The Texas State Bar, Alabama Circuit Court Judges Conference and Arizona Supreme Court have adopted substantial parts or all of these guidelines. Indeed, the Georgia Public Defender Council has also adopted most of the standards; however, adopting the standards is not enough. Compliance with these standards depends on adequate funding.
A legion of indigent capital defendants have lost their lives or almost lost their lives because of abysmal legal representation at their trials. In 1995, Carl Johnson was executed in Texas after a trial at which his court-appointed lawyer literally slept on the job. Kenneth Foster, who recently had his sentence commuted in Texas, was represented by a court-appointed lawyer who failed to bring up his troubled childhood as a mitigating factor in his case.
In an Oklahoma case, Ronald Williamson was sentenced to death after his court-appointed attorney, who was poorly compensated, did not present evidence that another person confessed to the crime. The charges against Williamson were later dismissed. And in California, Manny Babbitt, a Vietnam veteran suffering with severe mental illness, was sentenced to death after his court-appointed lawyer drank four martinis at lunch every day during his trial. Babbitt was executed in 1999.
Georgia's death penalty history has been plagued with death sentences as a result of poor defense lawyering. Before the U.S. Supreme Court held that executing mentally retarded inmates was unconstitutional, Jerome Holloway and William Alvin Smith were sentenced to death after their court-appointed attorneys did not or could not bring up their mental deficiencies.
Even supporters of the death penalty have opposed the execution of Troy Davis, an inmate on Georgia's death row, due to a lack of evidence against him. What Davis did not receive was a competent court-appointed trial attorney who should have investigated testimony against him that was allegedly coerced by the police. If that was not bad enough for Davis, when he finally obtained competent counsel for his appeal, the federal government drastically cut the funding for the Georgia Resource Center, which was handling the case.
Defendants are fighting for their lives during capital trials. The Constitution guarantees effective lawyers and a fair trial — that means lawyers with the time, resources and skill to properly represent them. It also means expert assistance, access to technology and investigators. All of this costs money. As things now stand, adequate resources are sorely lacking in many parts of the country. As a result, the death penalty is too often reserved not for the "worst" offenders, but for those defendants with the worst lawyers.
Chris Adams wants Georgia to provide better representation to its capital defendants. He can no longer participate in a system that fails to protect the rights of defendants. For Georgia to give capital defendants a constitutionally adequate defense, it has to realize that, in large part, it is about the money.
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CALIFORNIA PANEL NAMED to safeguard judicial independence
BY JULIA CHEEVER, San Francisco Sentinel
September 4, 2007
California Chief Justice Ronald George today announced the formation of a new state commission to study ways to ensure impartiality and accountability of judges in the wake of increasing threats across the country to judicial independence.
The Commission for Impartial Courts will be sponsored by the San Francisco-based state Judicial Council, the governing body of the California court system. As state Supreme Court chief justice, George chairs the council.
George said, “We are forming the Commission for Impartial Courts in response to developments in other states that have changed the tone, tenor, and cost of judicial elections.”
He said, “The manner in which judges are selected, retained, and removed from office can have a serious impact on the independence of the judiciary.
“It is essential that we make every effort to avoid politicizing the judiciary so that public confidence in the quality, impartiality, and accountability of judges is protected and maintained,” the chief justice said.
The commission will be led by an 18-member steering committee chaired by state Supreme Court Justice Ming Chin. It will have four separate task forces on judicial selection and retention; judicial candidate conduct in election campaigns; judicial campaign financing; and public information and education.
The groups will make recommendations that could lead to changes in the state’s code of judicial ethics or in laws proposed to the state Legislature, George said. The commission will present its proposals to the Judicial Council in two years.
George said that “a number of disturbing trends have come together.”
These include attacks on judge for their rulings “without consideration for the law that compelled the decisions and without consideration of the procedure by which the decisions were reached,” the chief justice said.
In some states - such as Ohio, where candidates vie in expensive competitive elections for the state supreme court - the need for money to pay for the campaigns can promote politicization of the contests, he said.
George said he considers California’s system for selecting state judges to be “by far the best system” for choosing state judges.
California Court of Appeal and Supreme Court justices don’t have contested elections. Instead, they are appointed by the governor and approved by a state commission and then appear on the ballot every 12 years for confirmation by the voters.
At the Superior Court level, California trial judges run for office in nonpartisan elections every six years. In practice, most are initially appointed to the bench by the governor to fill vacancies and are often not opposed when they run for new terms.
Members of the new commission’s steering committee and task forces include judges, court executive officers, lawyers, government officials, business representatives and members of the public.
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Jury Duty Stamp
Associated Press
Sept. 12, 2007
A new postage stamp celebrates jury duty as an important way for Americans to serve their community. At a ceremony in New York City marking juror appreciation day, New York State Chief Judge Judith Kaye said the stamp "celebrates the important role of our citizenry in the delivery of justice." The 41-cent stamp released Wednesday now goes on sale nationwide. The stamp shows the profiles of 12 representative jurors in silhouette.
Cobb: Alabama ahead in drug court goal with 25 new ones planned
By DESIREE HUNTER, The Associated Press
August 30, 2007
MONTGOMERY, Ala. (AP) — Drug addiction is hard to shake, but Alabama has been taking significant steps to help those struggling with dependence get the treatment they need instead of just locking them up, Chief Justice Sue Bell Cobb said Thursday.
With 25 more drug courts in line to join the 16 already operating, Alabama will be in a position to lead the country, Cobb told more than 100 judges, lawyers and community corrections officials who will be involved in the expanding program.
"I want us to be known for fixing people rather than filling prisons," she said.
Drug courts allow nonviolent drug offenders to go through a lengthy program that involves intense supervision and testing while they are rehabilitated. The charges are dropped if they stay drug free for a year.
The goal is to have at least one exemplary court in all 67 counties by 2010, Cobb said after addressing the attendees at a three-day drug court training conference. Some at the meeting already have courts in their areas and others will be able to start them by Oct. 1.
The rest are shooting for Jan. 1, said Pete Johnson, a retired judge who started Jefferson County's court in 1996.
"We can literally become known as one of the first states to have a model drug court in every county," Cobb told the group.
As of February, the Jefferson County program had accepted 4,161 offenders, with 2,610 graduates and 431 who were still enrolled. A total of 701 failed the program and were sentenced to prison, but the recidivism rate for graduates was just nine percent. The defendants have paid more than $3.1 million in drug court fees and the program has saved more than $36 million in prison costs.
"Drug court is about changing people and helping people to change," Johnson said. "Every time we can take somebody who is addicted to drugs, it's reducing crime."
Prisons Commissioner Richard Allen said last week that about a third of the inmates in state facilities were charged with drug offenses, while 75 to 80 percent had drug problems that contributed to their crimes.
Last month there were 29,357 inmates packed into the state's aging prison system that was built to hold less than half that number. Drug courts will help with overcrowding by keeping convicted offenders from entering the system.
Talladega County Circuit Judge Chad Woodruff said he was grateful for the conference, which erased "any question of the necessity or need" for drug courts.
"When you hear about an offender or drug addict the real easy answer is to lock them up and throw away the key," said Woodruff, who's hoping to have a court running by the end of the year. "But I've seen the cycle of addiction and we simply can't afford to outbuild the problem."
Cobb said $1.7 million will be distributed among the new drug courts for at least one staff member and organizations are securing grants and seeking local funding to supplement that money.
She also suggested they reach out to their local business communities since drug addiction eats away at their employable population.
"The business community should be very supportive because this is going to help people stay at work and not miss work," she said.
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DuBose criticizes $1.19 million settlement order
By Jim Cox Co-Publisher, The Thomasville Times
August 30, 2007
A local circuit judge saddled with a nearly $1.2 million judgment in an estate settlement imposed by a Mobile County circuit judge has called the order illegal and immoral and said that it must not be allowed to become public knowledge.
Mobile County Circuit Judge John Lockett issued a judgment on Aug. 17 in the long disputed estate case of Joseph J. Sullivan of Washington County that orders Circuit Judge Stuart DuBose of the First Judicial Circuit to pay Cheryl Weaver, his adversary in the case, $1,190,000 and to convey 605 acres of land belonging to the estate to Weaver.
DuBose was in private practice when he met with Weaver, Sullivan's longtime friend and caregiver, and agreed to prepare a will for Sullivan, leaving the $2.5 million or greater estate to her. DuBose did not confer with Sullivan before preparing the will and that and other professional conduct matters relating to the case have been criticized. The Alabama State Bar Association imposed punishment prior to DuBose being elected last November but the Alabama Supreme Court rejected it as not being severe enough. The bar was directed to reconsider the matter but never acted on it and DuBose was elected in November and took office in January.
Weaver and DuBose became executors of the estate and DuBose eventually became the sole executor.
Weaver initially agreed to pay DuBose a fee of up to 40 percent of the estate but changed her mind and that issue was the basis for an estate dispute that was scheduled for trial last October. However, on the day a jury was to be selected settled and the settlement provisions were not disclosed.
Judge Lockett on Aug. 17 said the matter had not been resolved and that DuBose was in "derogation of the settlement agreement…[and]Judgment is hereby entered in favor of Cheryl Weaver and against the estate of Joseph J. Sullivan and Stuart DuBose [sic], individually, jointly and severally…."
On Aug. 19, DuBose faxed copies of letters he had sent to his Mobile attorney, Jim Rosaler, to Lockett.
DuBose wrote that Lockett's ruling affected him "almost as if you told me my father or close family member had died." He continued, "The Court's Order is not legal. There is no justification for a judgment against me individually. Not only is it not legal, but it is immoral. This Order must not become public knowledge. It must not be recorded. It will ruin me professionally and further ruin me financially. My credit will be irreparably destroyed."
DuBose said the malpractice case against him had been dismissed and that he had only acted as a personal representative in an attempt to fulfill Lockett's orders and the provisions of the will, which had been upheld.
DuBose wrote his lawyer that he demanded that A.I.M, an insurance company, pay the judgment immediately.
In other correspondence included with the fax to Lockett, DuBose detailed an Internal Revenue Service audit of the estate that levied a $450,000 bill on the estate.
Lockett's order details that DuBose is to take "all necessary steps" to insure that the conveyances ordered are "free from any encumbrance or lien of the IRS as pursuant to the settlement agreement 'Stuart is responsible for the IRS'."
On Aug. 21, Judge Lockett acknowledged receipt of the faxes from DuBose and termed them an ex parte, or legal, communication, and ordered that the papers be filed with the circuit clerk as a part of the court record, thereby making them public. In addition, Lockett ordered, "…the Court enjoins Stuart Dubose [sic] from making any further ex parte communications in this matter with this Court."
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N.C. could evaluate judges soon
GARY L. WRIGHT, The Charlotte Observer
September 2, 2007
North Carolina may soon begin evaluating the state's judges to find out whether they are qualified to serve on the bench.
The N.C. Bar Association's board of governors has approved a pilot program to survey the performance of judges on their integrity, competence and temperament. The pilot program is expected to begin this fall.
If the program works, the bar association could launch its full-scale judicial evaluation program as early as 2008.
Since the 1970s, at least 22 states, including South Carolina, have established similar programs to evaluate judges.
The bar association says it believes the program would enhance justice in North Carolina by improving the performance of the state's judges. It also would inform voters about the performance of judges before they stand for election.
A report, prepared by a committee of the bar, notes that lawyers and court personnel may find it difficult to tell judges that they have problems with temperament, legal reasoning and other judicial attributes.
The judicial performance evaluations, the report says, would give judges the same kind of feedback that most people get in their jobs.
"Judges will improve if they know their weaknesses, and voters can cast votes informed by evaluations of both judges and judge candidates," said Raleigh lawyer Neal Ellis, one of more than two dozen bar members who studied judge-performance programs across the country.
Among those who would be surveyed would be lawyers, judges, jurors, law enforcement officers and probation officers.
The survey would grade judges on matters ranging from patience, fairness and courtesy to knowledge of the law, clarity of decisions and freedom from prejudice against any person or group.
The performance evaluations would identify the judges' strengths and weaknesses. Judges would be given ratings of "well qualified," "qualified" or "unqualified."
"The administration of justice in North Carolina depends on the quality of its judges," the report says. "There is presently no program in North Carolina which provides judges with objective assessments by those who have observed their performance."
If North Carolina already had a judicial performance evaluation program, it might have shed light on a controversy this year involving Mecklenburg Chief District Judge Fritz Mercer's decision to remove Judge Nancy Norelli from criminal court and reassign her to family court. Mercer told the Observer that complaints from police about Norelli's rulings played a role in his decision to remove the judge from criminal court.
The pilot program, paid for by the bar association, will be limited to surveying attorneys across the state. It's expected to cost $36,000. Bar officials may seek help in funding the full-scale judicial evaluation program, which is expected to cost less than $300,000 year.
The judges' evaluations, the report says, also would preserve judicial independence and ensure public accountability of the judiciary.
"Good judges should be re-elected," the report says. "Those judges who fail to meet the minimum standards of their profession should not be re-elected."
The report points out that the judicial performance evaluations may weed out poor performers.
"Those judges who recognize that their performance is unsatisfactory and that they are not suited for the bench may be dissuaded from running for election and instead may be encouraged to retire," the report says.
"The weeding out of weak and inefficient judges should produce other salutary effects: fewer reversals by appellate courts, reduction of litigation expenses of parties, and resolution of cases as law and justice requires."
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