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Editor's Note:
The following remarks were made by Judge J. Thomas Greene at the Federal Bar Association's Annual Litigation Practice Seminar, held on November 3, 2000. He has graciously permitted them to be reprinted here.
My presentation today has to do with public perceptions of our justice system. The adage public opinion pollsters live by is that "Reality is what the public
thinks is real." This is also the engine that drives much of our economy, including consumer spending and some lawyers' jury practice. Abraham Lincoln was well aware of
the significance of public perceptions. He said: "Public sentiment is everything. With it, nothing can fail; without it nothing can succeed."1 This proposition is of the utmost importance to our justice system, including lawyers, judges, juries and the overall workability of the system, because it implicates public trust and confidence. In this regard, much introspection within the system, as well as inquiry by individuals and organizations not a part of the system, has been conducted over the past two decades in the form of polls, surveys and studies. Many of the perceptions which have emerged are negative and need to be understood and corrected.
Public perception of our system seems to be that the adversary system is broken, the jury system is not working properly, the amount of justice meted out depends on
the amount of money a person has, there is a disparate and unequal treatment of the races, lawyers are greedy and judges are insensitive. Moreover, extensive surveys have
revealed three basic things about public perception of our civil and criminal justice system. First, that the general public knows little or nothing about how our courts
function. Second, that there is an underlying feeling of hostility toward the Third Branch of Government. And third, that what people do know or think they know about the
courts comes mostly from sound bites, television dramas or sensational and atypical high profile cases.2 In general, the portrayals of our judicial system and the legal profession by the media provide entertainment rather than the reality of how our justice system works.
Three polls and surveys recently have been conducted to gauge public perceptions of our justice system. They are the American Bar Association's comprehensive
nationwide survey on public perceptions published February 1999,3 the National Center of State Courts' survey funded by the Hearst Corporation in 1999,4 and
the most recent of the Harris polls, released in August 2000.5 These polls revealed some positive and supportive perceptions, which I will mention later, but the negative perceptions cause very great concern. In these survey results, either a majority or near majority of those polled responded thusly:
1. LAWYERS.
"We would be better off with fewer lawyers." "The legal profession does [not] do a good job of disciplining lawyers." We don't need lawyers because people "could represent themselves in court if they wanted to."
The Harris poll reported that only one out of five persons surveyed regards the practice of law as a prestigious profession and that lawyers, as a group, are not
worthy of being admired. This represents a sharp decline as of August 2000, compared with prior years. (Doctors, scientists and teachers were ranked as "most
prestigious." A few professional groups - notably journalists - were ranked even lower than lawyers.) The August 2000 poll reflects the continued negative perception of
lawyers reported in a Harris poll taken shortly after the O.J. Simpson trial: "[L]awyers' prestige has plummeted at a pace unmatched by that of other professions during
the past 20 years."
The O.J. Simpson trial may be the cause of a good deal of public dissatisfaction with lawyers. In this regard, Albert Alschuler, an advocate for jury reform, made
this comment about that trial: "Though the Simpson trial was atypical, it tells us a great deal about the legal system. It shows how readily this system can be abused
when skillful lawyers have the resources to press it hard." He went on to conclude that the O.J. Simpson trial "could mark a turning point in our legal history, the
moment when the need for America to reinvent a fair and workable trial procedure became too obvious to deny."6 This may be an extreme reaction, but it is food for thought. In any event, that trial not only set back the cause of those who advocate cameras in the courtroom, but also has resulted in much public dissatisfaction with lawyers
2.COURTS.
The courts and judges did not fare much better. For instance, these perceptions were expressed: Going to court "takes too long" and "costs too much." "The courts let too many criminals go free on technicalities." "Courts are not effective in informing the public about court procedures and services." "Wealthy persons receive better treatment from the courts than do others." "Politics influence judges in their decisions." "Minorities and persons who do not speak English receive worse treatment from the courts." "Juries are not representative of the community from which they are chosen." (The percentage of persons sharing the last sentiment is higher among African-Americans and Hispanics.) "The justice system needs a complete overhaul."
Because of these negative perceptions, the question must be asked: What are the current causes of the popular dissatisfaction with the administration of justice? The
root causes go very deep.
In 1906, the venerable Roscoe Pound, who later became a notable Dean of the Harvard Law School, addressed the American Bar Association and delivered a challenging
address entitled, "The Causes of Popular Dissatisfaction with the Administration of Justice."7 Much of what he said is applicable today in understanding negative public perceptions and dissatisfaction. For instance, he said that the public perceives the law itself to be arbitrary, full of technicality, favoring the rich and lagging behind current public opinion and changed cultural values. In the public's mind, the practice of law is but a game, like a sporting event, which simply requires knowing the rules. He pointed out that the contentiousness inherent in the adversary system fosters dissatisfaction. Roscoe Pound also observed that the public perceives the courts to be too slow, that the dual system of concurrent state-federal jurisdiction is a waste of judicial power, and that the courts are infected with politics. He said that lawyers are abandoning professionalism in favor of commercialism and that the attorney-client relation is being lost. He observed that the public generally regards the jury system to be a bore, troublesome and inconvenient, and that juries are too expensive. Concerning the media as a cause of popular dissatisfaction, he said: "Finally, the ignorant and sensational reports of judicial proceedings, from which alone a great part of the public may judge the daily work of the courts, completes the impression that the administration of justice is but a game."
Most of what Dean Pound had to say about the causes of popular dissatisfaction could have been said today. Let me suggest some additional causes for dissatisfaction.
I will mention six such causes, focusing on lawyers, the judiciary, Congress, the media, the entertainment industry, and societal attitudes in today's culture.
LAWYERS
The public's current dissatisfaction with the legal profession appears to have been brought on by an unsavory minority who have abused the system and employed sharp
practices that have tended to discredit and demoralize the profession as a whole. In this regard, a recent cover story in U.S. News and World Report highlighted the following:
One area in which this kind of respect for institutions has eroded dramatically in recent years is the law. Outside of their profession, lawyers have become symbols
of everything crass and dishonorable in American public life; within it, they have become increasingly combative and uncivil toward each other.8
This negative perception is echoed locally as recently as this week in a Salt Lake Tribune editorial which notes that "Lawyers have a reputation for rapacious
greed." This editorial concludes that the "popular perception [is] that lawyers are greedier than hogs."9
Negative perceptions of lawyers as a whole are overgeneralized and unfair. The vast majority of lawyers selflessly devote a good portion of their time, gratis, in
providing legal assistance to the poor, working on law reform, taking on unpopular causes, and counseling people who cannot afford to pay. These positive facts about lawyers
need to be heralded and made more widely known, but before lawyers can effectively speak out to defend and improve the public perception of the justice system, they must work
at improving their own public image.
THE JUDICIARY
Judges are often perceived as insensitive, arbitrary and aloof. In part, this comes from the need to avoid undue familiarity with members of the bar and
organizations likely to be litigants, as well as ethical restrictions against speaking about cases at the time the public is most interested in them - when they are pending.
Ideally, the judiciary itself should be its own best spokesperson. However, given the prohibitions on judges explaining and discussing their own rulings or other
judicial rulings in pending cases, this is not always possible. This inability to respond is particularly troubling when the judge fails to make his or her rulings clear and
understandable in the first place. The lack of a response by the judge or others to "set the record straight" may also contribute to the public's unfavorable
impression.
A recent example where a judge could not resist responding to public criticism in a high profile case occurred in the Microsoft anti-trust case. The U.S. District
Judge who tried that case gave interviews to the Wall Street Journal, the Washington Post, Newsweek and CNN. He explained that these media statements were necessary to prevent
"public misperceptions" due to unwarranted "public relations campaigns," and said, "I believed and still believe that it is vitally important to
public confidence in the judicial system that my role be fully understood."10 This has been labeled as unethical and inappropriate conduct - or at the least ill advised - raising the specter that the appellate court may not reach the merits in the case but rather remand with an order of recusal and reassignment to another judge. Others have defended the judge as having said no more than what he had essentially said in open court and in duly issued rulings.11 In all events, this illustrates the delicate and difficult position judges are in concerning even well-intentioned public comments about pending cases. Being muzzled concerning current trials and matters on appeal is a real handicap for judges.
Concerning the inability of judges effectively to defend themselves or the system against public criticism, Chief Justice Rehnquist recently stated: "The
adversarial nature of many court proceedings is not easily conducive to universal good feelings. In a democratic atmosphere of wide-open comment and criticism on the work of
the courts, judges cannot always bend to public will, nor should they try."12
Judges can do things to improve the perception of the judicial system, such as speaking at service clubs, participating in educational seminars, and conducting moot
courts. Outreach programs in the courtroom to acquaint the public with the court and court procedures hold great promise.
CONGRESS
Congress contributes to the current popular dissatisfaction with the justice system by enacting laws which require the courts, in effect, to become regulators. In
this regard, Robert Reich, former Secretary of Labor in the Clinton administration, has said, "So, how do we deal with the big regulatory issues: tobacco, handguns,
sweatshops, high-tech? Through lawsuits."13 He decries the lack of expertise by judges relative to such issues and worries that cases will be settled without regard to the fate of alleged victims. The federalization of criminal law in statutes aimed at such things as violence against women, immigration and extreme penalties for crimes already prohibited under state law places undue strain upon an already heavy federal caseload. It also contributes to the negative perception of inappropriate judicial actions and intrusions into social issues beyond what ought to be the role of courts.
It is unlikely that the Congress will stop passing laws which leave politically sensitive matters for the courts to decide even though, in substance and effect, this
amounts to a transfer to the courts of substantive decision-making. The interpretation of such laws may result in rulings affecting the entire society, which may be perceived
negatively, transferring public blame - if blame is to be placed - to the courts.
THE MEDIA
When the media reports on the justice system, it appears to be looking for negative subjects to cover because they are the ones thought to be the most newsworthy.
Clearly, the media rejects the notion that it has a duty to educate the public about the virtues of the court system, as evidenced by statements made by some very prominent
news reporters during a free-wheeling panel discussion recently sponsored by the American Judicature Society.14 Eminent journalists and judges offered differing perspectives concerning media reporting of the justice system. For instance, a long-time correspondent of the Baltimore Sun, whose assignment for many years had been reporting on the United States Supreme Court, said, "The better news stories are when the court system doesn't work very well at all." He further stated, "We're going to cover [the courts] the way we want to," and "We do not have to perform in a way that will earn a Good Housekeeping seal of approval for the judiciary."15 This echoes the statement made by Walter Cronkite, the former CBS News anchorman, who put it this way some years ago: "It simply isn't our job to report on every cat that isn't caught up a tree."
The bottom line is that although some positive things occasionally may be reported, public perception of the justice system is not likely to be made noticeably more
favorable because of media reporting.
THE ENTERTAINMENT INDUSTRY
Our society apparently has an insatiable hunger for stories about the law and lawyers. Hollywood most often satisfies this hunger by fictional or grossly exaggerated
presentations in a vast outpouring of popular legal culture. There are numerous fictional television shows about the law, including Ally McBeal, The Practice, JAG, and Law and
Order, and several others, with new ones on the way. In addition, each year sees a constant stream of lawyer novels and docudramas based on often fanciful legal situations.
Court TV continues to draw only a small (albeit devoted) audience, but Judge Judy and her imitators on the daytime television bench have a much larger following and are seen
as the personification of our judiciary. A competitor, Judge Julie, who I am informed is seen on the Playboy Channel, wears a black negligee rather than a robe and specializes
in - what else? - sex cases.
Fictional portrayals of courtroom scenes and other aspects of law practice are entertaining and can be worthwhile. But it must be realized that these constitute
entertainment, not education. Fictional fantasies about legal matters tend to translate, in the public perception, into what they believe to be an understanding of the real
justice system. The mischief is that they are distortions of the real world and tend to trivialize the justice system.
Distorted and inaccurate presentations about how the system works contribute to the perception that the practice of law is, as Dean Pound said, a game much like a
sporting event. The lawyer who is most adept at manipulating the "rules of the game" is thus perceived as the one who should prevail. Court proceedings are perceived
as something other than the search for truth and justice.
SOCIETAL ATTITUDES IN TODAY'S CULTURE
A unique phenomenon of our day seems to be that we have become a nation of victims, playing the "blame game." This may be one of the causes for the
litigation explosion in our country, which is fanned by the perception that by filing "creative" and sometimes intimidating lawsuits someone else can be held liable
for the bad things that happen to us, regardless of our own fault, and that the justice system can be manipulated. The result is often frivolous and unwarranted litigation,
born of attitudes in our society which reflect a refusal to accept responsibility for our own actions.
Some of the unfavorable public perception of judges and courts may reflect broader social and cultural dissatisfaction with the very structure of our society, such
as the disparity in wealth. The perception of how wealth may affect justice is typified in the well-known New Yorker cartoon in which the rich lawyer asks a client who is
seeking to have her rights vindicated, "How much justice can you afford?" That cartoon illustrates the widespread feeling that justice can be bought and that it is
unequally dispensed based on ability (or inability) to pay.
Often it has been said that "any fool can file a lawsuit." But judges must take all litigation seriously and rule on the merits. The perception that too
many foolish lawsuits are taken too seriously by the courts, and that they are allowed to consume an inordinate amount of judicial time, leads to exasperation and doubt as to
the workability of the system
* * *
Like the democracy in which it operates, our justice system is not without its cumbersome inefficiencies and defects. But in spite of all of the foregoing, our
system is better than any other. This is recognized in positive perceptions of the system reflected in the extensive polls just mentioned. For instance, the key positive
findings of the comprehensive ABA survey were these: "In spite of its problems, the American justice system is still the best in the world." "The jury system is
the most fair way to determine the guilt or innocence of a person accused of a crime," and "Juries are the most important part of our judicial system."
Concerning access to the courts, the perception is: "It would be easy to get a lawyer if I needed one." A key positive finding in the National Center for State
Courts study was: "Judges are generally honest and fair."
Even the media occasionally awakens to the fact that positive stories about the justice system are often newsworthy and interesting to the public. Positive reporting
on the judiciary was advocated by a former ABC News law correspondent, who said, "People just don't understand how our system works, and, in my view even more
unfortunate, they don't understand how well it works." He went on to say that "the best kept secret of the judiciary is how well they work . . . But it's not a
secret we should be keeping. Keeping it secret undermines confidence in, and respect for, the courts . . . ."16
Notwithstanding these favorable perceptions, efforts of individual lawyers, judges and well-intentioned media persons to change public perception from unfavorable to
favorable may be largely ineffective. Generally speaking, the reality in today's atmosphere is that presentations by lawyers are perceived as self serving, making lawyers
ineffective spokespersons for their own cause as well as for the cause of the justice system. Similarly, judges often are not able to say or do anything, at least about
adverse perceptions concerning current cases, and the media is more likely to look for and report apparent flaws in the system rather than to extol its virtues. Hollywood-type
fiction and entertainment based on legal themes almost never supply the true picture of how our system works, and in fact contribute to the blame game and victim-oriented mind
set.
In addition to direct positive outreach to the public by individual lawyers and judges,17 the organized bar, the law schools and service organizations can probably do the most to help improve positive public perception of the justice system. This can best be achieved by maximizing public awareness and understanding of the judicial system as it actually works.
* * *
In conclusion, we can hope and predict, as did Roscoe Pound in the year 1906, that our present justice system with excellent law schools and active bar associations
such as this splendid Federal Bar Association, will "revive professional feeling and throw off the yoke of commercialism; [that] we may look forward confidently to
deliverance from the sporting theory of justice; [and that] we may look forward to a near future when our courts will be swift and certain agents of justice, whose decisions
will be acquiesced in and respected by all."
Let us work together to make that "near future" Roscoe Pound envisioned in 1906 come to pass in the "near future" of this Millennium.
Footnotes
1The Collected Works of Abraham Lincoln, Roy P. Basher, ed., Vol. III, Lincoln-Douglas Debate at Ottaway (Aug. 21, 1858) p. 27.
2The results of various polls
conducted by CBS News/New York Times, ABC News/Washington Post, Los Angeles Times and others are contained in the Wirthlin Group Database as published by the American
Judicature Society in an article by John M. Graecen, What Standards Should We Use to Judge Our Courts?, 72 JUDICATURE 23 (June/July 1988).
3Perceptions of the U.S. Justice
System, February 1999. American Bar Association publication based on Survey and Report prepared by M/A/R/C¨ Research.
4Survey conducted by National Center for State Courts,
Williamsburg, VA in early 1999 reported in ABA Journal, July 1999 at 86.
5The Harris Poll #51, September 6, 2000, Humphrey Taylor, Chairman, Reuters News Service 2000WL25623796.
6Our Faltering Jury System by Albert W. Alschuler, 1/1/96 PUBINTST 28. 1996 WL 12333056.
7The Causes of Popular Dissatisfaction with the Administration of Justice by Roscoe Pound, 35 F.R.D. 241 (1906).
8Reported in National Law Journal, Nov. 15, 1999.
9Salt Lake Tribune, "Unbridled Greed," Nov. 1, 2000.
10The Washington Post, Sept. 29, 2000 - James V. Grimaldi, Washington Post Staff Writer.
11"Jackson Press Interviews," The Recorder, Http://www.law.com.
12Judicature, September-October 1999, Vol. 83, Number 2 at 87.
13See note 8, supra.
14Shall
We Dance? The Courts, The Community and the Media, 80 JUDICATURE 30 (July-August 1996)ŅAn edited transcript of a panel discussion conducted at the American Judicature
Society's 1996 midyear meeting (citing surveys by the National Center for State Courts, Hearst Corporation, and state and citizens groups).
15Remarks of Lyle Denniston, Correspondent, Baltimore Sun. Mr. Denniston went on to state:
Nobody has the guts to tell me I can't cover a public institution because of the
way I'll cover it. But, God bless them, the judiciary around this country, the judge who tried the Susan Smith case in South Carolina, the judge who's trying John Salvi in
Massachusetts, they sit there on their high and mighty bench and decide that if the coverage is not what they're going to like, you can't even be in their courtroom. Judges
need to understand that if television and radio people can't bring their mikes and their cameras, they're not there. They are simply not there. And there's no reason to assume
that anybody is ultimately going to tolerate a judiciary that says coverage of the courts depends on the judiciary's agreement with the scope of coverage. Judges have got to
get that straight. It's not their call.
16Tim O'Brien, Best Kept Secrets of the Judiciary, 73 JUDICATURE 341(April/ May 1990).
17At a national Conference on Public Trust
and Confidence in the Justice System in Washington, D.C., in May 1999, a consensus was reached by the judges and lawyers attending that they are primarily responsible to
address the issue, calling for:
Better communication and outreach to the public, better internal management and use of technology, more diversity, stricter enforcement of
court procedures and supervision of lawyers, and a stronger commitment to handling cases fairly, swiftly and economically.
These are some nuts and bolts recommendations which have merit and warrant further study and implementation.
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