A judicial system that incentivizes withholding information and coloring the available evidence to suit clients’ wishes allows deception to obstruct the truth. It also permits personal wealth to turn what ought to be the even hand of justice into one that is financially biased. If we truly want to root out the truth, then we should make the question of whether justice was met the ultimate indicator of performance. To do so, I suggest having a system of peer review for select cases that asks that very question. These reviews as well as those that arise from the appeals process can begin to form detailed performance histories for lawyers and judges. These evaluations can also be used to help assign the best public defenders to the most trying cases.
I also propose doing away with the attorney-client privilege. I believe attorneys should inform all the parties involved of their rights and options, but I do not believe they should use this to withhold incriminating evidence. An oath to be forthwith with any relevant information to determining the truth would be appropriate in a system primarily concerned with applying justice honestly. Then the application of justice would replace meeting the biased desires of clients as the foremost objective in the minds of lawyers.
As to how this might look, two lawyers, none for or against the defendant or claimant, would have equal access to all the parties involved, including witnesses and experts. Both would make preparations in an effort to piece together the truth. Then both would go before a judge and present their case for the truth without favoritism. Taking into account mitigating circumstances, criminal histories, etc, the three of them would agree to a verdict. This can be done without employing juries, even in criminal cases. The option to use a jury can be resorted to in guaranteed retrials if the judgment is found unsatisfactory. The access of attorneys would remain the same despite the presence of a jury. In other words, no attorney would be for or against a defendant or claimant. While they would have the extra obligation of helping pick the jury, they would not have the embedded incentive to try to game the system using the jury selection process because win/loss records would be nonexistent. Ultimately, the main difference would be that juries would decide the verdict. A natural consequence would be that initial trials would be more likely to be lenient on defendants who are found guilty. It is my assertion that such a system would be more efficient as well as more just.
Some may be wondering whether such a system would ruin the law profession. While it would definitely reduce demand for lawyers, of which there are too many already, I do not think it would ruin the profession. Lawyers would still be hired for all the non-litigation reasons: drafting contracts, ensuring compliance with regulations, etc. As for matters of litigation, individuals of means and who have good reason to get at the truth would still have the incentive to hire their own attorney. Most innocent poor defendants would probably not be able to hire a good lawyer, much like today, but they would not have contend with a hungry prosecutor looking to improve his/her stats. Instead, they would have two impartial lawyers pouring over the evidence to arrive at a likely truth. Corporations, for their part, would still be expected to keep house in-house attorneys who are intimately familiar with their rationale to litigate when the need arises. The difference would be that these parties would risk disbarment or worse if they withhold information that could get at the right judgment.
While it may be impossible for judges to completely extricate their personal beliefs from courtroom proceedings, we can do our best to provide them with an environment as far removed from party politics as possible. To that end, getting rid of judgeship elections, both partisan and nonpartisan, would be sensible. If we do not, I fear that we will let campaign financiers slowly usurp the impartiality of our courts. However, people should have some input into who gets to sit on the bench. In the states where commissions make merit-based nominations for judgeships, there exists quite a bit of variance in their composition. Unfortunately, when citizens are included in the commissions, they tend to be appointed by the very governors who make the final decisions. I believe that the citizens should be appointed by a lottery system or there should be an open hiring process managed by a legislative committee. The addition of ordinary citizens removed from the political machinery to a commission that already has attorneys and judges will help to make appointments fair and less political. Taking steps to make sure that our judges are uncompromised and our courts operate with truth as their compass is essential to ensuring justice for all.