Judicial Independence - A DRI Effort That Merits Support

Editors Note: See page 10 for an article by John Trimble, chair of the DRI Task Force. See the version of this article on our Websites for a link to the Report of DRI's Judicial Task Force.

Editor: You became president of DRI on October 13 with a goal of vigorously moving forward with implementing the recommendations of Without Fear or Favor, the Report of DRI's Judicial Task Force. What is the major theme of the Report?

Martin: It focuses on the issue of judicial independence, which is the cornerstone of our civil justice system because if you don't have an independent judiciary you can't have a fair civil justice system where the rule of law prevails.

The Task Force Report looked at trends that were undermining the independence of the judiciary and concluded that these included inadequate judicial salaries, inadequate court funding, lax court security, unjustified media attacks on the judiciary, large campaign contributions and too little focus on merit in the selection of judges. Under the leadership of Chair John Trimble of Indianapolis, the DRI Judicial Task Force found that unless these trends are reversed the rule of law in this country will be in serious jeopardy. The Task Force Report recommended specific steps that can be taken by the defense bar to reverse those trends.

Editor: The process that you went through that led to your selection as president of DRI well qualifies you to lead this effort.

Martin: My recent induction as president of DRI is the culmination of ten years of involvement in the organization's executive structure, having served four years as a DRI officer, and three years each as a member of the Board of Directors and as Texas State Representative. In 2005, we became increasingly concerned about unjustified attacks on the judiciary, we were worried about the loss of a lot of good judges going back to private practice, and we felt like the time was right to start this task force. Our president at the time was Richard Boyette from Raleigh, North Carolina, and he felt very strongly that we should create the Task Force. To the best of my recollection, the task force was largely his idea.

Editor: Why did DRI feel that it was in a unique position to be helpful?

Martin: Our defense lawyer members are in court throughout the country every day. They are dealing with judges. They are dealing with juries. They are dealing with the civil justice system. We think our members have a very unique perspective and have the ability to speak out on the subject. Beyond that, defense counsel feel a deep obligation to their clients that extends beyond the immediate cases that they are handling for them.

Defense counsel are concerned about systemic issues that affect the cost and outcomes of cases. They don't want to see their clients confronted repeatedly by difficulties that can be resolved by changes in court rules and legislation or by educating judges about the complex issues they may face. This is illustrated by the active involvement of the leadership of DRI and the other defense counsel organizations in the civil justice reform efforts of LCJ and in efforts to educate judges. DRI has provided funding to the National Foundation for Judicial Excellence, a nonprofit foundation which has already offered three annual programs during the summer for state court appellate judges.

Editor: You mentioned that inadequate judicial salaries have had a significant impact on judicial independence.

Martin: Yes, if judges are inadequately compensated, the judiciary is unlikely to attract enough quality candidates with the experience and other attributes required to be truly independent.

The compensation situation with respect to trial counsel in the private sector is quite different. Corporate counsel feel that with their current exposure to the expenses and risks inherent in today's litigation climate, they must have the best possible representation. In turn, law firms are in competition with each other to attract the best and the brightest lawyers to their firms resulting in significant increases in the compensation offered by some corporate litigation firms to recent law school graduates and to attract seasoned litigators to join their firms as lateral hires.

The result is that the compensation of first year associates, let alone that of seasoned litigators, exceeds that of many trial court judges. This disparity in compensation has resulted in fewer lawyers from the private sector with a grounding in commercial and corporate law being able to afford a significant reduction in income to become judges.

Increasingly, judges are being drawn from the public sector where there is less opportunity to gain experience in commercial and corporate law. Our justice system needs judges from different backgrounds, but the decline in the number of judges coming from private practice is disturbing. And, unable to maintain their standard of living on judicial compensation, many talented and experienced judges are moving into the private sector. Even the compensation of arbitrators can far exceed that of judges.

Editor: Let me ask you about a few of the other concerns mentioned in the DRI Task Force Report. What role do large financial contributions play in undermining public confidence in the judiciary?

Martin: This is an enormous problem . I think the perception of parties appearing before a court to which the party has made large contributions gives a strong appearance of unfairness and impropriety. Even though the judge may be absolutely fair and even though the vast majority of judges in our country are good, honest folks, the appearance of these large financial contributions just looks terrible.

You really can't point fingers because once one side of an issue makes contributions, the other is almost forced to do so. Inevitably, the campaign begins to be about issues that the judge will confront in court, which undermines the expectation that the judge will have an open mind in approaching a case.

The Task Force is very careful to say that what works in one state might not necessarily be suitable in another state. The Task Force then suggests several different merit selection plans. One very interesting idea that they toss out for consideration is public financing of judicial elections, which has been attempted to some extent in North Carolina. We're not saying we endorse that. But, we are saying that states that have a problem with the appearance of these large financial contributions should at least look at and consider alternatives.

Editor: How can merit considerations be introduced into the selection of judges as a way to building public confidence?

Martin: The Task Force does not propose a one-size-fits-all solution. The Task Force Report suggests several alternatives that states might consider to reform their judicial selection process. For example, it talks about public financing of elections. Also, it mentions the simple idea of going to nonpartisan elections of judges. Instead of having the Republican, Democratic or Independent designations beside their names, judges would run on a nonpartisan basis so that voters would be voting for the individual judge and not for a party. Merit selection plans take various forms such as the creation of nonpartisan nominating commissions or commissions to select a slate of judges to propose nominees to the governor who are qualified for appointment.

The process would also be improved if nonpartisan groups distributed information on the qualifications of the candidates through fliers, newspapers and other educational efforts. The problem is that in large metropolitan areas there are too many judges on the ballot for people to be able to differentiate. In Dallas County in November of 2006 there were something like 43 contested judicial elections. It is impossible even for lawyers who practice in the courts to know all of those judges. Certainly it is impossible for the average citizen to be able to differentiate between that many candidates.

Editor: To what extent do you feel that media attacks on judges and their decisions discourages qualified judges from serving and undermines judicial independence?

Martin: Judges' independence should not be circumscribed, nor should they be exposed to physical harm, by unjustified attacks in the media and elsewhere. Unfortunately, because such attacks will occur and the reactions of unhappy litigants are unpredictable, it is necessary that our courts place greater emphasis on protecting judges from physical attack. Along with calling for increased security, efforts will be made by DRI to provide the public with information about the role of the judiciary and to assure that there is a prompt response to such attacks.

Editor: How does the erosion in the quality of the judiciary attributable to low judicial compensation and reluctance to serve as a result of the other factors mentioned in the DRI Task Force Report affect litigation costs and judicial outcomes?

Martin: Good judges with adequate resources are very skilled at moving cases through the system in a cost-efficient way. And it's important that we have good judges who have the experience and court provided resources to enable them to do that. Some judges let cases languish for a very long time or allow unnecessary discovery to be taken, which increases the cost of litigation significantly. Errors at a lower court level can result in costly appeals.

The quality of the judge obviously affects the outcome of litigation. To take just one example, consider the importance of the rulings that judges make on pretrial matters like challenges to expert witnesses. There are still far too many unqualified expert witnesses in some state courts who are allowed testify even though they don't meet the applicable Daubert or Frye standard.

Editor: Probably the single most important task of corporate counsel is to control the cost of litigation and achieve successful outcomes. Yet, in our most recent surveys of our readers' interests, they rank improving judicial compensation last. What can defense counsel do to raise the consciousness of corporate counsel about the importance and immediacy of this issue as well as the other issues affecting judicial independence dealt with in the Report?

Martin: Defense counsel are in an excellent position to communicate this to their corporate counsel clients. In my own practice, where in recent years, I have been representing both manufacturers and airline industry clients in mass tort litigation, I regularly bring to the attention of my clients systemic issues that need to be addressed.

The importance of adequate judicial compensation is such that I take every opportunity to mention this to my clients. We intend to encourage every defense counsel to do the same. This will advance our efforts to enlist the support of corporate America.

It makes little sense for corporations to expend large sums to get the best possible defense firms to represent them while the judges who must decide the cases brought before them may lack the knowledge and resources to minimize costs and to reach the right conclusions. It is important that defense counsel make every effort to be sure that their corporate clients understand the need for their corporations to get involved in the effort.

Corporate support can be very effective. Corporations can educate their employees and local communities about the importance of an independent judiciary. They can enlist their government relations departments in the effort as well as the national and local business organizations that they support.

Editor: What resources can be enlisted by DRI to support better compensation for judges and the other recommendations made in the DRI Task Force Report?

Martin: DRI alone has about 22,500 members. It has close relationships with three other national defense organizations. The officers of those other national defense organizations sit on the DRI board. These are the International Association of Defense Counsel, the Federation of Defense and Corporate Counsel, and the Association of Defense Trial Attorneys.

DRI is affiliated with defense organizations in every state and with local defense organizations in some larger cities. Altogether it has relationships with more than 60 state and local defense organizations. What the Judicial Task Force is trying to do is get the message out to the state and local defense organizations, provide them with tools that they can use to educate the citizens in their communities and to do whatever is appropriate to assist the judiciary with educating the public in their particular locale.

We don't have statistics that enable us to measure the total number of defense lawyers in all the organizations, but we believe the total number of defense lawyers in all the defense organizations is probably something of the magnitude of 45,000 to 50,000.

As I mentioned, DRI also has close relationships with LCJ, whose 35 corporate members include some of America's largest corporations, and with the numerous law firms who are members of the LCJ Network.

Published November 1, 2007.