Legal Docket - The decline of courtroom litigation

NICK EICHER, HOST: It’s Monday morning. This is The World and Everything in It. Today is the 6th of July, 2020. Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. I get a lot of solicitations to read books written by lawyers. I got one the other day that caught my eye. It’s titled The Vanishing Trial: The Era of Courtroom Performers and the Perils of its Passing. 

You know I’m all about the U.S. Constitution. Especially Article III, the section that established the court system. Article I, the legislature. Article II, the executive branch. Article III, that’s our specialty here on Legal Docket.

But I wanted to find out about this idea of trials vanishing. So I called up the author to talk with him. Robert Katzberg had served as an Assistant U.S. Attorney for the Eastern District of New York and spent 40 years in courtroom litigation.

So he knows a thing or two! 

And I asked him about the notion that a lot of people think we just have too many lawyers.

KATZBERG: Well, I think oftentimes we hear the famous Shakespeare quote:  “The first thing we’ll do is to get rid of the lawyers?”  

But what’s left out of people who use that quote is the line that follows. And the line that follows is something like, “And in that way, we can get rid of justice.” And that’s the truth. 

Whether we have enough lawyers, whether we have too many lawyers, or whether we have enough lawyers in the right places, the fact of the matter is that it’s attorneys who are the frontline for the average American citizen to get justice. Simple as all that.

Continuing in the simplicity: the lack of trial lawyers and the jury trials are a threat to the republic. 

I asked him how he connects those dots.

KATZBERG: Mark Geragos, who’s a pretty famous criminal lawyer here in Los Angeles, as he puts it, the book discusses the dirty little secret of the federal criminal justice system. And that is that there are no more trials. They’re very few trials. 

The statistics, roughly speaking are as follows: in the mid-1980s, which was really the height of time when trials were abundant, 1 in every 10 federal criminal cases went to trial, which meant that before the result would come in, we would have 12 average citizens selected for their impartiality, determine the fate of the case. That 10 percent by the latest statistics of 2019, that 10 percent of cases going to trial is now 2 percent. 

So, as a result of that, the average citizen, the juror who’s supposed to be playing a crucial part in the administration of justice has been frozen out of federal court! Plays no role! … 

As I explained in the book, trial lawyers are performance artists. There is no Juilliard school, for lawyers, for trial lawyers to get into. Juilliard in New York, where if you play the cello, or you sing for the opera, or you’re pianist, they can test you in advance before admitting you, and they can see either your actual talent now, or your promise in the future. There’s no legal equivalent to that. 

Lawyers become trial lawyers by trying cases in the courtroom.

Now, I’ve had plenty of young people come up to me and say, hey, when I grow up, I want to be a lawyer. And I think the image most people have is that being a lawyer means being a trial lawyer. But now those opportunities are vanishing because the training opportunities are vanishing. Vicious cycle.

KATZBERG: The closest analogy that I can make is standup comics. My particular favorite Chris Rock, for example, I guarantee you that when he first started out, he was nowhere as funny as he is now. It took night after night of perhaps bombing and nobody laughing for him to become Chris Rock. 

Same thing with trial lawyers. In my book, I discuss my first case prosecuting criminal cases in the Eastern District of New York, as an assistant U.S. attorney, I was something less than great. It just took years and years and years. 

So the bottom line is what’s happening now is we are losing our talented trial lawyers. The old ones are dying or retiring. The middle aged ones, having the skills rusted from inactivity. And the younger ones aren’t learning the trade.

Now, I’d placed the blame for that on law schools. But that’s not right.

Katzberg says it started in the 1980s, when the “lock ’em up” mentality took hold. That resulted in a high level of incarceration, the highest per-capita rate in the world right here.

KATZBERG: There are a lot of factors supporting that beyond the politicians. There’s a thing called the prison industrial complex. You have a lot of small towns in this country. I mean, take, for example, upstate New York, where you have some small towns, the only commerce is the prison. The only place where people in these rural areas, in New York, for example, or Illinois, the major employer is the prison. 

And so if the prison is full, people are working. If the prison is not, they’re not….That’s a very strong lobby for more and more incarceration. Just like if you own a hotel, you want the beds filled? Same with the prisons.

Fill the beds. Katzberg explained to me that when he was a federal prosecutor in New York, if a defendant pled guilty or a jury found him guilty of a crime that had a five-year maximum sentence attached to it, the judge had some discretion.

That five-year max could be something less: from four years all the way down to no time at all. It was within the trial judge’s discretion, as the one who’d heard the evidence. 

But that also created a statistical disparity and a call for change that Congress answered with federal sentencing guidelines. With that, discretion went out the door.

KATZBERG: And what the federal sentencing guidelines did in 1987, ’88, when it first was unveiled on the world, it took away the discretion from the judges. And it created numerical equivalents for all aspects of criminal conduct. For example, if a crime takes more than “minimal planning,” end of quote, certain numbers are added to the mathematical computation. 

Once the guidelines were figured out that way, based upon these in numerical equivalents, for all kinds of things, how much money was lost, how much money was stolen, those kinds of things, there was a sentencing range, which the judge had to impose, no matter what. And these guideline ranges were much higher than what the average judge was giving. 

Plus, what they did was in the old days before the guidelines, if I was sentenced to three years in jail, it was the thing called the parole commission. And after one-third of my sentence, I would be eligible for parole. The guidelines did away with parole and you must serve 85 percent of the sentence. 

And so people were serving much higher minimum amounts of time in jail for much longer sentences. So what ended up happening was the risks of going to trial became so great that people just gave up their right to go to trial and pled guilty. And that’s what’s happened.

Katzberg says this means judges with lifetime appointments administer the court system—basically cutting citizens out of the process.

KATZBERG: There’s a very noted judge in the Southern District of New York named Jed Rakoff, who has been railing against the sentencing guidelines for decades now. And Judge Rakoff really has labeled it exactly what it really is, unfortunately. And that is, justice, quote, “behind closed doors.” That’s the last thing we want. We want the public involved. We want people to serve on juries.  We want people to let the people’s voice, the people’s power become involved in our federal criminal justice system.

You know, there are two ways, if I can just pull back a little bit, they were there. There were just two ways the average citizen impacts the power and the administration and how their lives are run by the government. The first one of course is voting in elections. That’s the average citizen’s ability to control what the government does and how it does it. Everybody knows that. 

But it’s the second aspect of power, the only other aspect of power that the average citizen has is serving on a jury. And if we are eliminating intentionally or otherwise that role, that duty— it’s called jury duty! It’s our duty as citizens. If we’re eliminating that, not good, not good at all.

These days, the American experiment as conceived in liberty needs to be remembered. 

Our third president and inspiration for our Bill of Rights, Thomas Jefferson, wrote in 1801: “I consider [trial by jury] as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.”

And that’s this week’s Legal Docket.

(AP Photo/Manuel Balce Ceneta) The U.S. Supreme Court is seen Tuesday, June 30, 2020 in Washington. 

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