Thursday, December 1, 2011

Jerome Frank on Trial

By Zachary A. Phelps

Zach Phelps, a third year student at Albany Law School, is a proud graduate of Homer Central High School and the College of Saint Rose, and an officer in the United States Marine Corps. This essay was written as one of the assigned memos for the Judicial Process seminar, Fall 2011 semester.

In a thrilling expose on the judicial system in the United States, Jerome Frank explores many of the major issues that surround the United States judicial process, pulling no punches and refusing to allow his voice on the matter to be muffled in his stimulating book, Courts on Trial.[1]

The beginning of his book delves into the problems that lawyers face with facts. Jerome Frank preaches about the importance of facts in the litigation process, and how hard it is to be a lawyer. Most of his musings come off as mere ramblings of a lazy and unmotivated lawyer. As he professes later in his book, the lawyer has to take what the situation gives him and do his best to represent his client and, if the system is as broken and against him as he seems to think, go forth and fix the problem.

In his look at the history of the judicial system in western civilization, Frank starts out with the idea that litigation and legal work are creations for a less violent way of settling disputes, with the only previous alternative being destruction of your opponent through mortal combat. He continues, with a misguided analogy, to compare the courtroom to battle. There are major differences between litigation and battle. As Frank readily points out at the beginning of his misguided spiel, litigation and the court system in general are designed to remove disputes from the battlefields and into a more reasoned and academic-type setting. They are designed to allow the parties to present reasoned sides of their arguments, and to have the rules that they and their fellow citizens have agreed upon to ensure a fair and equitable outcome.

The analogy, though, is greatly disproportionate because of the interests involved, especially in regards to the United States system. In the court system, the main focus of the majority of cases is one person versus one person, or one person versus the rest of the community. In both these situations, the interests come down to one selfish goal: to get what’s right for yourself after another person has wronged you, or to protect yourself against the accusations of the rest of the community after you have allegedly wronged them. Battle is a completely different enterprise.

Whether right or wrong, wars are fought by entire communities, with the individual giving up personal glory, beliefs and selfish wants for the good of the group. The soldier is worried more about the well-being of those next to him than he is about his own personal well-being. Litigation, with its courtroom drama, is nothing more than a street fight, a one-time dispute resolution for committing a wrong, whether actual or believed, against another person in the community. Each side take jabs and attacks wherever it will hurt the most. But the main focus of lawyers is to protect their clients from harm—i.e., to cover one person’s mistakes, or defend one person’s interests.

There is no higher purpose in most litigation. A few landmark cases do take on the fight for the common good. But those are limited. That is more often reserved for the actual military, which fights against actual oppression and actual evil on a level that can never be compared to a courtroom tussle between two lawyers, usually fighting on behalf of two petty clients.

Another major point where Frank steps off the reservation is his breakdown of the decision-making process in courts. In his description, he gives us the decision-making formula of Rule (x) Facts = Court’s Decision. He then proceeds to argue that there is a fundamental problem with this equation. Frank is again wrong. There is nothing inaccurate with the basic equation of R (x) F = D. This is the closest that a court system comes to having uniformity. But in no case is there ever the exact same set of facts presented requiring the exact same rule to be applied as in a previous case.

In every case, there are different factors that must be raised by the lawyer on his client’s behalf and molded into important facts and circumstances for the judge, or jury, to take into account when applying the rules to reach a final decision. While there are cases where facts that one person deems important are not considered by the court, it is important that the lawyer utilize the power of persuasion to convince the judge and jury that the facts he has presented are the most important ones and, therefore, that the lawyer should be able to present the reasons for a ruling in his favor. There are good reasons why the courts have a system in place that basically applies a formula in hopes of uniformity. But there are also reasons that the courts use judges and juries: to add a human element to help protect against potential injustices.

Frank is also fearful of witness statements and their play on the facts of the case. Again, his fear is largely unfounded. For every potentially hurtful and bad witness that is presenting bad information, whether because he has a faulty memory or because he is biased towards one side, there are many other good witnesses that are excluded because they prejudice the other party. For as much as Frank is concerned about the importance of presenting the correct facts in a case, he has failed to see that the American justice system is not designed to find the truth through a trial.

The American justice system is set up to provide the most fair and equitable treatment of both sides, in order to deliver an American form of justice. For example, it is more focused on keeping innocent people out of jail than it is with putting guilty people into jail. If there is a case in which a witness testifies in a court of law and the lawyer believes the testimony is faulty, it is the lawyer’s job to correct and attack that testimony. It is the lawyer’s duty to show the jury the shortcomings in the testimony, the faulty recollection of the witness, and the bias. The way to avoid the problems that Frank has identified, about the way facts are presented at trial in the American legal system, is simple: be a competent lawyer.

Frank makes an excellent point in his opus on the process of correcting the problems in the courts. His first point is that the problems with the American justice system must be identified and addressed--not with a blanket statement of the horrible state of the justice system, but with thoughtful, pointed criticisms and reasoned solutions. Written at a time when any criticism of the American way of life was frowned upon for fear of providing fodder for the Soviet totalitarian propaganda cannons, this is the most useful insight of the first few chapters of his book.

Frank asserts that making blanket statements do nothing to add to the debate and, instead, do provide the rest of the world with a negative image of America. On the other hand, Frank insists that pointed criticism and proposed solutions are necessary in order to continue to improve, not only the American judicial system, but the American way of life in general. If a society is not seeking constant improvement, in every aspect of its existence, that society will surely fall. It will suffer either from within with a rapid decay and deterioration of its standard of living and basic morals, or from without by hordes offering better visions of the future.

The observations offered by Frank are important for the continued analysis of the American judicial system, and for much more than that. They are also sound advice for all Americans about the need to have logical and reasoned debates about ways to improve the system that has been created in this country for all matters, from government to business to schools to sports. This advice is more applicable now than it has ever been, for this country and for the rest of the world. In the modern era of instant information and instant analysis, the general public is more prone to latch onto that information as soon as it comes across their televisions or computer screens. More prone to make up their minds instantly about the merits of particular issues, before those stories have a chance to develop. Unfortunately, these decisions are oftentimes based on mere opinion about a situation, rather than the actual facts.

In an age where everyone’s opinion has a stage to be presented to the world, more people would benefit from embracing Frank’s suggestions about how to present arguments and critiques about the current state of society and public issues.

Frank does make another misstep, however, by calling out the great Benjamin Cardozo, and by misrepresenting his views and philosophy on the American justice system. Frank charges Cardozo with overlooking the small intricacies that lead to decisions in court, such as the judges’ and juries’ interpretations of facts at the trial level. This could not be further from the truth. As Cardozo stressed in his The Nature of the Judicial Process,[2] the main factor in judges' decisions is their own internal compass. Their interpretations are the major determinants in a case, not the mere application of a rule.

Frank may be right in talking about the rules that Cardozo set forth in attempting to create a more predictable judicial process. But he is dead wrong in representing Cardozo as forsaking the real determinant in final judicial decisions—i.e., the personal philosophies of the men and women who make up the ranks of judges and juries.

In his Courts on Trial, Jerome Frank complains about many of the problems that faced the judicial system of his day and, perhaps, still do today. There is one way the problems that he raised can be avoided today and lawyers can succeed in the courtroom: be a competent, driven lawyer.

[1] Jerome Frank, Courts on Trial: Myth and Reality in American Justice (Princeton University Press, 1949).
[2] Benjamin N. Cardozo, The Nature of the Judicial Process (Yale University Press, 1921).