by Neil Gorsuch
But the barons weren’t ones to stick to plans. On their way to town, they heard that some of the men on their dead list were holed up at a small farmhouse. So the barons detoured there and managed to kill two men and capture others. But things went awry when homesteaders spotted the siege and fled to town to warn others. When the sheriff learned what was happening, he assembled a posse and eventually surrounded the cattle barons and their men.
What the cattle barons may have lacked in foresight they made up for in well-placed friends. During the fighting that ensued, one of their men escaped the encircling forces and managed to send a telegram to the governor, who was sympathetic to their cause. In turn, the governor scrambled to send his own telegrams to the president of the United States and Wyoming’s two U.S. senators. The president, awakened in the middle of the night by the senators and the assistant secretary of war, issued an order for military intervention. So it was that the cattle barons were rescued by politicians (and the U.S. Army) from near-certain death.
Though the fight on one front ended, it soon began on another. Johnson County sought to prosecute the cattle barons and their Texas gunslingers for murder. But the barons turned to a powerful and very able lawyer: Willis Van Devanter (who much later, as it turns out, served as a justice of the Supreme Court). And Van Devanter used every one of his many legal wiles to advance his clients’ cause. He insisted that the invaders should be tried together, which promised to strain the courts. He sought to ensure that the trial would take place in Cheyenne, a long distance from Buffalo. He managed to win months of delay—all while his clients and their friends worked to secure the disappearance of the gunmen and key witnesses. Some melted away back to Texas; others were ferreted into a hotel in Rhode Island, all expenses paid, and promised a bonus if they kept quiet (appropriately enough, it seems the checks bounced once it came time to pay). Van Devanter also helped ensure favorable press coverage from Wyoming’s most influential newspapers. And when a smaller rival paper dared to take Johnson County’s side, Van Devanter threatened it with claims of slander, demanded the postmaster to stop its distribution, and seems even to have had the editor arrested. Maybe most shrewdly of all, Van Devanter ensured that Johnson County would have to house and feed the defendants, a strategy well designed to bankrupt the county.
Even when the time for trial arrived at last, Van Devanter still had cards left to play. Reportedly, something like a thousand men were called for jury selection—a startling number for almost any trial in any time or place. And then Van Devanter made sure the jury selection proceedings dragged on almost impossibly. Eventually, Johnson County was forced to give up. By now, the county coffers were more or less empty, many of the key witnesses had evaporated, and even after an interminable jury selection process an empty seat still remained to fill in the jury box. The prosecutor realized he was beaten. The county filed a motion to dismiss.
But the cattle barons and their lawyer opposed the motion. Why? If the court ordered dismissal of the case before a full jury could be empaneled, the cattle barons knew that the county could try them another day. So what did Van Devanter do? After dragging out jury selection for so long, he now turned tactics. He quickly persuaded a courtroom spectator to sit in the last jury seat, allowed the full jury panel to be sworn, and then invited another motion to dismiss. Now, the constitutional right against double jeopardy would prevent any second trial. No doubt, the cattle barons laughed all the way home.
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I WISH I COULD say this is a story only of frontier justice. But it’s not. Many of the challenges that faced the people of Johnson County in seeking justice still face those in our courts today. While the world has never seen a perfect legal system, that’s no excuse. We should not hide from our shortcomings or shirk from the job of trying to correct them. So, it seems to me, any book about the rule of law in this country today wouldn’t be complete without some candid conversation about some of the ways in which we still fall short in our aspirations. That’s what this chapter is about.
Take our civil justice system today. Few Americans can afford a lawyer. I couldn’t afford my own services when I was in private practice; today’s law school graduates can’t either. According to Professor Luz Herrera, the average person who needs a lawyer makes $25 an hour while the average hourly rate of a lawyer hovers between $200 and $300—more in many markets. Why are lawyers so staggeringly expensive? I cannot help but think some of the problem has to do with the expense of legal education. To provide legal services most anywhere in the United States today, no matter how routine or easy, you must attend a four-year college and then three years of law school and sit for a bar exam. If you have to pay your way, as so many students do, you can easily walk out of school deeply in debt. No wonder lawyers must charge so much for their services.
Then there’s the expense and delay of it all. In criminal cases, prosecutors are automatically required to produce relevant exculpatory material to the other side. But no similar duty exists today in most civil cases in our federal courts. So before you can reach trial, you must often endure months or years of wrangling over the production of documents and fighting repetitive rounds of motions. The lawyers call this “civil discovery,” but too often the process produces little civility and less discovery. The federal rules and their official commentary that govern the civil discovery process now span more than seventy single-spaced pages, all in nine-point font. They have become the centerpiece of contemporary civil litigation. Lawyers who in another age would have been masters of cross-examination are now more likely to be masters of discovery disputes. Where in our civil justice system we used to have trials without discovery, today we have discovery without trials. The whole process is so complex and expensive and takes so long that many meritorious suits aren’t filed and many nonmeritorious ones settle for more than they’re really worth. For one, I cannot see why we allow this. The Constitution guarantees everyone a trial before a jury—not the right to keep from that trial the relevant facts.
Some say the answer to these problems is to allow individuals more easily and frequently to represent themselves pro se (with no help from a legal professional). I’m not convinced. Time and again on the Tenth Circuit I saw pro se cases with real merit face daunting odds because the litigant didn’t know how to navigate the wildly complex rules of modern civil litigation. My colleagues and I did our best to catch cases like these and seek willing attorneys to take them on without pay. With competent legal help, at least these individuals stood a chance. Almost always, the help of some competent lawyer, or even a nonlawyer licensed professional in the field, is better than no help at all.
Our criminal justice system suffers from its own grave problems. According to the Heritage Foundation, the federal statutory books today contain more than an estimated 4,500 criminal laws, most of very recent vintage. And that doesn’t even begin to account for criminal laws at the state and local levels—or, for that matter, the hundreds of thousands of criminal penalties federal agencies impose through their regulations. Out of curiosity I asked my law clerks one day to find out how many of those regulations are floating around; they reported back that most scholars gave up trying to count them all back in the 1990s. The Wall Street Journal has quoted one government official who made an attempt, Ronald Gainer, as saying that “you will have died and resurrected three times” before you will count them all. John Baker, a law professor, even told the paper that “[t]here is no one in the United States over the age of 18 who cannot be indicted for some federal crime.”
With so many potential charges available to the prosecutor, often carrying such long sentences, it’s little surprise, too, that criminal defendants routinely feel no choice but to plead guilty. When the available criminal charges on the books were few and their corresponding sentences relatively short, a trial was worth the risk. But in an age when the charges on the books have grown legion and a prosecutor can stack charge
upon charge on a defendant for the same underlying course of conduct, a trial becomes a luxury few dare. So just as we’ve witnessed the death of the civil trial, we’ve witnessed the death of the criminal trial: Today, only about 1.5 percent of civil cases are decided by jury trial, and more than 97 percent of federal convictions come through plea bargains.
These facts, I think, should worry anyone who fears the arbitrary exercise of power. The idea that a jury of your peers should decide your fate—not a prosecutor holding all the cards, not an opposing lawyer versed in discovery games—is a core principle of our democracy. Just as the framers divided Congress into two houses, they balanced the judiciary between judges—the least democratic participants in our legal order and responsible for questions of law—and juries—the most democratic participants in our system and responsible for questions of fact. One of the leading trial lawyers of his era, John Adams considered the role of juries essential to the “liberty and security of the people.” For him, as for so many of our founders, the right to a jury trial in civil cases, enshrined in the Seventh Amendment, was vital to ensure that “[n]o man’s property or liberty can be taken away from him till…men in his neighborhood have said upon oath, that by the laws of his own making it ought to be taken away.” As Adams put it, the right to vote and the right to trial by jury represented democracy’s “heart and lungs, the mainspring and the centre wheel,…without [which] the body must die, the watch must run down, the government must become arbitrary.”
In my own career as a trial lawyer, I saw time and time again the same wisdom of juries Adams did. Twelve people working together in good faith can see and hear more of what’s happening in a courtroom than any single person might. They bring the common sense of the sovereign people to bear, cutting through legalese to the heart of the matter. They take their oaths seriously. They witness the judicial system up close and usually come away with a new appreciation of it. Experience on a jury is often the closest most people ever get to participation in their own government. All that is lost when trial by jury dies.
This chapter seeks to shine a light on some of the access to justice challenges we face today. The stories in the pages that follow sometimes have happy endings; often they do not. The Johnson County War may seem from a time long past, but as you read these stories I suspect it will follow you as it does me.
LAW’S IRONY
In this speech to the Federalist Society’s annual lawyers’ convention in 2013, I tried to sum up some of my concerns about our civil and criminal justice systems today: Our civil justice system is too expensive for most to afford; our criminal code is too long for most to comprehend; and our legal education system is too monolithic to allow lawyers to serve clients as affordably and well as we might.
Let me begin by asking the lawyers in the room if you’ve ever suffered through a case that sounds like this one:
[I]n [the] course of time, [this suit has] become so complicated, that no man alive knows what it means….[A] long procession of [judges] has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality [but still it] drags its dreary length before the Court, perennially hopeless.
How familiar does that sound? Could it be a line lifted from a speaker at an electronic discovery conference? From a brief in your last case? Or maybe from a recent judicial performance complaint?
The line comes from Dickens’s Bleak House, published in 1853. It still resonates today, though, because the law’s promise of deliberation and due process sometimes—ironically—invites the injustices of delay and irresolution. Like any human enterprise, the law’s crooked timber occasionally produces the opposite of its intended effect. We turn to the law earnestly to promote a worthy idea and sometimes wind up with a host of unwelcome side effects and find ourselves ultimately doing more harm than good. In fact, the whole business is something of an irony: We depend on the rule of law to guarantee freedom but we have to give up freedom to live under the law’s rules.
In a roundabout way, that leads me to the topic I’d like to discuss with you tonight: law’s irony. Dickens had a keen eye for it. But, the truth is, Demosthenes plied similar complaints two thousand years ago. And if we’re honest, we should expect lawyers and judges to carry on similar conversations about the law’s ironies two thousand years from now.
But just because unwelcome ironies may be as endemic to law as they are to life, Dickens would remind us that’s hardly reason to let them go unremarked and unaddressed. So it is I would like to begin by discussing a few of the law’s ironies that I imagine he would consider worthy of attention in our time.
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CONSIDER FIRST TODAY’S VERSION of the Bleak House irony. Yes, I am referring to civil discovery.
The adoption of the “modern” rules of civil procedure in 1938 marked the start of a self-proclaimed “experiment” with expansive pre-trial discovery—something previously unknown to the federal courts. More than seventy years later, we still call them the “new” and the “modern” rules of civil procedure.
Now, that’s a pretty odd thing, when you think about it. Maybe the only thing that really sounds new or modern after seventy years is Keith Richards of the Rolling Stones. Some might say he looks like he’s done some experimenting too.
In any event, our 1938 forefathers expressly rested their “modern” discovery “experiment” on the assumption that with ready access to an opponent’s information, parties to civil disputes would achieve fairer and cheaper merits-based resolutions.
Now, how is that working out for you?
Does modern discovery practice really lead to fairer and more efficient resolutions based on the merits? I don’t doubt it does in many cases. Probably even most. But should we be concerned when 80 percent of the American College of Trial Lawyers say that discovery costs and delays keep injured parties from bringing valid claims to court? Or when 70 percent also say attorneys use discovery costs as a threat to force settlements that aren’t based on the merits? Have we maybe gone so far down the road of civil discovery that—ironically enough—we’ve begun undermining the purposes that animated our journey in the first place?
What we have today isn’t your father’s discovery. Producing discovery no longer means rolling a stack of bankers’ boxes across the street. We live in an age when every bit and byte of information is stored seemingly forever and is always retrievable—if sometimes only at a steep price. Today, the world sends fifty trillion emails a year. An average employee sends or receives more than one hundred every day. That doesn’t begin to account for the billions of instant messages shooting around the globe. This isn’t a world the writers of the discovery rules could have imagined in 1938—no matter how “modern” they were.
No surprise, then, that many people now simply opt out of the civil justice system. Private alternative dispute resolution (ADR) abounds. Even the federal government has begun avoiding its own courts. Recently, for example, it opted to employ ADR to handle claims arising from a massive oil spill in the Gulf of Mexico. These may be understandable developments given the costs and delays inherent in modern civil practice. But they raise questions, too, about the transparency and independence of decisionmaking, the lack of development of precedent, and the future role of courts in our civic life. For a society aspiring to live under the rule of law, does this represent an advance or perhaps something else?
We might even ask what part the rise of discovery has played in the demise of the trial. Surely other factors are at play here, given the disappearance of criminal trials as well. But we’ve now trained generations of attorneys as discovery artists rather than trial lawyers. They are skilled in the game of imposing and evading costs and delays; they are poets of the nasty gram, able to write interrogatories in iambic pentameter. Yet they are terrified of trial.
The founders thought trials were a bulwark of the rule of law.
As Hamilton saw it, the only room for debate was over whether jury trials were “a valuable safeguard to liberty” or “the very palladium of free government.” But is that still common ground today? No doubt, our modern discovery experiment is well-intentioned. Yet one of its effects has been to contribute to the death of an institution once thought essential to the rule of law.
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WHAT ABOUT OUR CRIMINAL justice system, you might ask? It surely bears its share of ironies too. Consider just this one.
Without question, the discipline of writing the law down, codifying it, advances the rule of law’s interest in fair notice. But today we have about 4,500 federal criminal statutes on the books, most added in the last few decades. And the spigot keeps pouring, with hundreds of new statutory crimes inked every few years. Neither does that begin to count the (literally) hundreds of thousands of additional regulatory crimes buried in the Federal Register. There are now so many crimes cowled in the numbing fine print of those pages that scholars debate their number. When he led the Senate Judiciary Committee, Joe Biden worried that we have assumed a tendency to “federalize everything that walks, talks, and moves.” Maybe we should say hoots, too, because it’s now a federal crime to misuse the likeness of Woodsy Owl or his immortal words “Give a hoot; don’t pollute!” Businessmen who import lobster tails in plastic bags rather than cardboard boxes can be brought up on charges. Mattress sellers who remove that little tag: yes, they’re probably federal criminals too. Whether because of public choice problems or otherwise, there appears to be a ratchet clicking away relentlessly, always in the direction of more—never fewer—federal criminal laws.
Some reply that the growing number of federal crimes isn’t out of proportion to our growing population. Others suggest the recent proliferation of federal criminal laws might be mitigated by allowing the mistake (or ignorance) of law defense to be more widely asserted. Others still suggest prosecutorial discretion can help with the problem.