Our Common Law Highlighted by Frenchman's Case

In the news: former head of the IMF, Dominique Strauss-Kahn was arrested recently in New York for alleged sexual assault -- and subsequently resigned his post. The case has all the trappings of a summertime blockbuster. However, for the French, conduct of the case in American courts can be perplexing, regardless of individual's political opinions of Mr. Strauss-Kahn. As the New York Times explains:

While the American justice system has its origins in British common law and involves ordinary citizens at almost every level, the French judicial system is rooted in the Napoleonic Code and is largely conducted behind closed doors. Suspects are typically ushered into courthouses through discreet side entrances, out of view of the public.

State-appointed magistrates prosecute and pass judgment in most trials without the oversight of citizen jurors, who serve only in the most serious cases. In such cases, formal charges come — if they come — only after a lengthy inquest by an investigating judge, who collects evidence on behalf of both the prosecution and defense before determining if a trial is warranted.

And in further contrast to the American system, investigating magistrates are legally bound to secrecy during an inquest.

Because of this secrecy the French judiciary has more discrete control over the case, managing the investigation on an intimate level, and deciding only then whether a trial is merited. A jury is only provided in extreme cases, the author explains.

As such, the extreme publicity which pervades the US system is perplexing to the French, who criticize it as "theatrics" and alternately praise it as a system which "does not hesitate to apprehend even the most emblematic personalities with lightning speed" -- the same criticisms and praises which our system gets from the locals, too.

The Jury System

Even for me, an attorney, it can seem so useless: the many hours sitting doing nothing, staring at the poorly laid travertine, hoping your name is called, but dreading it is not....Ah! the joy and sorrow that is jury duty. The jury system is a relic in the English system of law we practice here in the States, but is it worth it?

After all, the judge is usually in a much better position to grasp the subtle meaning of key facts; the jury, on the other hand, is often driven by emotion (likely, on the whole, judges are probably more able to control their prejudices than a wholly disinterested juror). The jury system inconveniences so many: the Court has to maintain whole staffs and expensive courthouse real estate to manage the hundreds of potential jurors who show up for any given summons date, the parties must engage in expensive, time consuming, and uncertain voir dire (questioning of the potentials), and of course the jurors have to disrupt their lives for at least one day, if not for weeks.

What are the pluses then? Historically speaking, we are each (usually) entitled to a jury of our peers when some liberty or property interest is on the table. These peers are selected almost at random from the community the parties live in, then refined by the questioning process to help minimize the potential prejudice. When you see tactics used in movies to hone the questioning, going so far as to pre-research potential jurors (which may happen in very high-value cases), you can understand how important the jury selection process is. This is a process unavailable if the parties choose to allow the court to act as fact-finder.

Additionally, a jury of legal laymen forces the attorneys to craft their arguments in understandable terms. This benefits society as a whole, because if and when these arguments are heard on appeal they may well become law in and of themselves. This process of creating legal precedent is thus driven by the parties...but shaped by the legal system requiring real humans to understand what is happening to their fellow citizens.

The jury system allows citizens to participate in the judiciary, which would otherwise remain alien to most people. This bolsters confidence in the judiciary, especially in an era where it is so politically charged.

The jury system pulls the states ability to make final decisions, and places it in the hands of the people. A very democratic concept indeed. As an attorney, my job is to look at the facts and apply them to the law. As citizens -- for better or worse -- jurors can place the events in a cultural context. This nuance can change the color of the plaintiff's claim, and decide otherwise razor thin issues. With luck, of course, they do this unemotionally and without bias.

This subtle difference is what we call "justice." For if the issues weren't so razor thin, the parties would not go through the expense of adjudicating them. The jury is where the tumult ends, and the parties have to hone their cases to the issues that matter. All the inefficiency and inconvenience aside, it is this gleam of justice which makes the jury a necessary part of the judiciary.

In Defense of the Adversarial System

When I began law school, one of my professors spoke to the student body, and described our legal system as a replacement for the brutality which can come from competition for rights and resources. Absent an active and accessible judiciary, aggrieved parties are relegated to "self help" to resolve disputes. What sort of help is available to that person? If they have the physical strength to accomplish it, the self help involves physically forcing the opponent to comply.

When modern-day litigants wait months or years for resolution of their disputes, they may wish to return to the days of clubs and pistols. However, the Rule of Law has several distinct advantages: it places power in the hands of the less powerful, it grants ultimate judgments to a neutral party, it allows non-parties (the rest of the world) the peace of mind to know that they won't be caught in the cross fire, and it lets the parties know that they can be heard.

How is this accomplished? By replacing weapons with facts, might with precedent, and actions with arguments. Facts are the tools with which the parties pitch battle in modern society, and the law can be used as both a sword and a shield in these fights. And though sometimes the system fails, and the wrong party prevails (and sometimes the system works and the correct party prevails), usually the courts come down somewhere in the middle depending on the shade of grey.

To the outside world, the courts can seem to be a behemoth pumping out justice at a snail's pace. From an employer's perspective, plaintiff's seem to be clogging the courts with frivolous cases just to get a big payoff. While both the court and plaintiffs (and defendants too, for that matter) sometimes act as barriers to justice, on the whole the system works better than the alternative it was designed to replace -- better to lose your shirt than your eye or your head!

One of the regular topics I'll write about is why the system, despite its flaws, functions well for us its patrons.