Judicial Imagination-- Making Believe We Are Competent

Recently, I had the opportunity to chat with a friend and former Chief Judge of a State Supreme Court. I was disappointed because, Illinois State Supreme Court that had apparently fought the politically correct position of adopting a mandatory CLE requirement had succumbed a few years ago.

I mentioned to my friend the fact that mandatory CLE was in my view a pointless exercise designed by the State Supreme Courts to avoid criticism for lawyer incompetence. Put another way if they adopted mandatory CLE they could avoid having to seriously address the issue or even think about it.

To my surprise, my friend readily agreed that mandatory CLE was a joke. Anyone hiring a lawyer who relies on the fact that the lawyer is up to date on his mandatory CLE is making serious misjudgment.

One has only to visit those CLE classes held between Christmas and New Year’s and look at the partially awake, well partied lawyers reading the paper, most of whom never had and never will practice estate planning to get a real a picture of the “well, it is got to be done” CLE.

Then there is the let’s make the best of it CLE, where tax planning in definitely a prime focus. You check in at the Royal Hawaiian, looking down the corridor at the blue Pacific and think to yourself, that a little torts and civil procedure is well worth the deductibility just for the view—not to mention that it is snowing back home. What this profession will do to insure they are fulfilling the public trust is remarkable.

Judges—do you really want to insure the public has cost effective competent legal service—competition is the answer—not mandatory CLE. Reduce artificial restrictions on access to practice and competition will solve the problem. In addition you will eliminate the administrative costs of monitoring CLE compliance.

-Larry Salibra
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Why Federal Courts Do Not Apply The Rule of Law

Part 3: Justification # 1—Outcomes in Non-Precedential Cases Are Not Subject To Reasonable Differences of Opinion

To my mind, the most persuasive justification for treating a decision in a non-precedential manner would be that the result is so obvious that there is literally no dispute concerning the nature of the outcome. Stated another way, no reasonable minded person would reach a different conclusion concerning who wins and who loses. Unfortunately, the objective data simply does not support this justification.

In an article in Forbes, entitled “Justice in the Dark”, October 10, 2000, the author debunks that myth with some startling statistics. In the 79% of the cases that are unpublished and non-precedential the district courts are reversed an astounding 37% of the time and there is disagreement among the panel that results in a dissent 24% of the time.

In the year these statistics were gathered there were 26,819 federal appellate decisions. There were 7,839 reversals in unpublished non-precedential opinions. There were only 5,682 precedential opinions in that year!

That great trial lawyer Vinny Gambini in My Cousin Vinny stated: “Are we to believe that water soaks into a grit faster in your kitchen than anywhere else on the face of the earth?” To paraphrase Vinny: “Are we to believe that there are more district court reversals in cases that are supposedly beyond dispute, than the entire universe of precedential cases, which presumably are intended resolve controversial situations?”

I am done with this one!

-Larry Salibra
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eDiscovery Resources

According to a recent national survey, electronic discovery is ranked as the issue that will have the biggest impact on the practice of law in the next five years. Recognizing the accelerating impact of e-discovery, the Institute for the Advancement of the American Legal System (IAALS) at the University of Denver has released two new publications on this major issue.

The first publication, The Emerging Challenge of Electronic Discovery, Strategies for American Businesses, provides businesses and organizations with strategies to proactively prepare for e-discovery. The second report, Electronic Discovery: A View from the Front Lines, presents a real-time snapshot of today’s electronic discovery landscape. Both publications may be downloaded free of charge by visiting our Web site, www.du.edu/legalinstitute.

IAALS is a national, non-partisan organization dedicated to improving the process and culture of the civil justice system. They provide principled leadership, conduct comprehensive and objective research, and develop innovative and practical solutions – all focused on serving the individuals and organization who rely on the system to clarify rights and resolve disputes.