The issue of how to provide legal representation to the poor is not an issue particular to the United States. Because an increasing number of British Columbians are representing themselves in court, the Canadian Bar Association BC branch is starting a campaign to pressure the government for more legal funding.  CBABC President Sharon Matthews says that the campaign will be fact-based and targeted at the general public. In announcing the campaign Ms. Matthews said,

 “Our research shows that the more the public knows about the real costs of continuing to under fund legal aid, the more supportive they are of legal aid.  People understand that real justice can only be achieved through equal access and that it is our mothers, children and grandparents who are being most negatively impacted by the status quo.  Through our web site and on-line ad campaign we will have real people speaking of their personal experiences in the system.”

The website created by the Canadian Bar Association is first class and worth taking a look at. Their goal is to create, in part through the website, a public engagement campaign. Aside from hoping to increase funding, one other hope of the campaign is to provide a forum for people to speak out about their experiences dealing with BC’s legal system.  Ms. Matthews says self-representation results in more trials, longer trials, and cases being thrown out of court because their cases can’t be heard in time.

Ms. Matthews says the nine years of cut backs in funding for legal services have now created a crisis. She says all British Columbians believe in equal access to justice, and everyone is negatively affected when their system is not available to them.

Featured on the web site is Debbie Abma who says she lost custody of her four children. She had to represent herself in court at the beginning. The Vancouver Sun which covered the announcement pointed out that there are comparable funding numbers for Canadian provinces and US States neither of which are particularly encouraging. 

http://www.vancouversun.com/news/Opinion+Underfunded+legal+system+costs+taxpayers+mint+group+says/5553934/story.html

“I think especially when we have people who have been victimized or marginalized by circumstances, no matter what it is, it’s important they have representation.”

Although infrequent, there are times when for legitimate reasons courts operate in secret. There are in camera inspections of documents and bench conferences every day. But what about a decision (an extensive written decision) in which there is no public release of the opinion? That appears to be what has happened in the DC Circuit according to Lawfare, a blog that covers the hard choices that courts confront when there are issues of national security. Here is the report:

D.C. Circuit Ruling in Latif, by Benjamin Wittes

The D.C. Circuit appears to have ruled in the case of Adnan Farhan Abd Al Latif (which Larkin previewed here, the briefs from which she posted here, the argument in which she and I covered here). Latif was granted the writ by Judge Henry Kennedy back in July of last year. I don’t have a lot of information at this stage. The opinion itself appears to be classified. The per curiam judgment reads as follows:

This cause came on to be heard on the record on appeal from the United States District Court for the District of Columbia and was argued by counsel. On consideration thereof, it is

ORDERED and ADJUDGED that the judgment of the District Court appealed from in this cause is hereby vacated, and the case is remanded for further proceedings, in accordance with the opinion of the court filed herein this date. A docket entry explains that there is a classified opinion consisting of a 53-page opinion for the court by Judge Janice Rogers Brown, a 14-page concurring opinion by Judge Karen LeCraft Henderson, and a 45-page dissent by Judge David Tatel. The D.C. Circuit does not normally announce judgments before opinions have been redacted (the typical practice of the district court), but the volume of classified material in this case appears to have triggered a deviation from normal practice. The fact that this decision appears to have also triggered a merits dissent in a habeas disposition makes a very rare–and potentially very important–D.C. Circuit case.

Lloyd Zimmerman is a District Court Judge in Hennepin County Minnesota. He has served on the bench since 2000. He is the son of a judge, but before you think of the caricature of some stern cold or detached jurist, Lloyd Zimmerman is decidedly not that type of judge. Lloyd is insightful and caring. Everyone who knows him sees that right away. He has a piece in the New York Times well worth reading. This article  can be an inspiration for all judges. It is entitled 

Making a Judgment on Love

By LLOYD ZIMMERMAN

THE call came around 3:30 p.m. on a sultry Minnesota day. The hospice social worker, Cheryl, explained the situation in a rush. She had tried 15 judges, and all were either in court or otherwise unavailable. By chance, she had reached me directly.

I had just finished a tough trial and was in my chambers surrounded by judicial detritus: legal briefs, scores of exhibits. This was the sanctuary where I went to nurse my wounds after a day of inhaling other people’s problems: name-calling; failed relationships; poor judgments made by people sometimes young, sometimes old, usually emotional. To be honest, I almost didn’t answer the phone.

The protracted and petty legal combat I had just suffered through was a case that should have been settled but for bad blood in a family relationship. I’d survived, presiding over a trial that was neither great nor good. It was done, but it was not my proudest moment as a judge. My day of emergencies had followed weeks of emergencies that had not been broken up by a vacation. I felt like putting one of those bumper stickers on my door that read: “Your poor planning is not my emergency.”

All I wanted was a drink.

That, however, would be considered poor decorum for a judge, and judges lose their jobs over poor decorum. I have a wife and two children. So I tried to shake off my grumpiness and be civil to Cheryl. I asked in my calmest, most Oliver Wendell Holmes voice what I could do for her.

She said she needed a judge to perform an emergency wedding.   The full piece can be found  on line at  http://www.nytimes.com/2011/10/23/fashion/making-a-judgment-on-love-modern-love.html?_r=1&ref=style

There is nothing like an animal rights case to get everyone upset. There are those who passionately believe that many of our practices in zoos and elsewhere are barbaric. There are others who believe that we are actually quite humane in almost all zoos giving children a chance to see animals that they would never have the opportunity to see and at the same time providing a safe environment for animals sometimes on the brink of extinction. The case of Reece v. Edmonton is in sense a just a case about an elephant, but if you read more there maybe lessons about government too. That is the central argument of a two part  post written by Lydia Guo for The Court. 

“Lucy, a thirty-six-year old Asian elephant in the Edmonton zoo, is loved by everyone from William Shatner to Margaret Atwood. For the last few months, Lucy has found herself embroiled in a legal battle in the province of Alberta.”

Chief Justice Fraser’s dissent takes up important issues, such as standing, and, more importantly, reminds us that this case is not merely about civil procedure: “Lucy’s case raises serious issues not only about how society treats sentient animals…but also about the right of the people in a democracy to ensure that the government itself is not above the law.”

http://www.thecourt.ca/2011/09/13/part-i-reece-v-edmonton-city-what-a-36-year-old-elephant-teaches-us-about-our-relationship-to-animals-and-to-our-government/#comment-301453

http://www.thecourt.ca/2011/09/22/9558/#more-9558  

Eugene Volokh is the editor and force behind the blog the Volokh Conspiracy. Professor Volokh teaches at UCLA Law School. His blog can be found at http://volokh.com/.  

Professor Volokh  had an interesting post entitled  Trial Judge Publishes Opinion With “Inflammatory” Criticism of Higher Court — Higher Court Finds Judge to Be in Criminal Contempt

That’s what happened in In re Kendall (V.I. Oct. 12, 2011); here’s the offending opinion by the trial judge.

The criminal contempt finding is also partly based on the trial judge’s decision to recuse himself from the case, which the higher court said was based on the judge’s desire to avoid following the higher court’s orders rather than on a genuine sense that he had some bias that would justify recusal.”  You can’t sit as a trial judge for any length of time and not occasionally express frustration with an appellate court (nor can you sit on an appellate court for any length of time and not get frustrated by some trial court judge) but this is a rather remarkable feud. 

Prime Minister Stephen Harper has selected two Ontario Court of Appeal judges to fill vacancies on the Supreme Court of Canada. .His selections – Mr. Justice Michael Moldaver and Madam Justice Andromache Karakatsanis – are the third and fourth judges the Prime Minister has chosen for the nine-judge court. The Globe and Mail has a profile of the new jurices which can be found at:  http://www.theglobeandmail.com/news/politics/harpers-picks-highlight-new-direction-for-supreme-court/article2204246/    

Mr. Justice Moldaver, however, has drawn the ire of the Quebec Bar Association which is asking the Harper government to reconsider its appointment of a unilingual judge to the Supreme Court of Canada. The Quebec Bar Association opposes the nomination of Justice Moldaver because he does not speak French. The Quebec Bar Association says Canadian citizens have the right to expect that, when they appear in court, they will be understood regardless of what official language they speak. The Globe and Mail describes Justice Moldaver as a justice “steeped in criminal law. Known to his colleagues as friendly and self-effacing, he is given to straight talk. His questions during appeal hearings are often blunt and drive straight to the heart of what is bothering him.” 

There is an interesting new book about the civil justice system:  Rebuilding Justice: Civil Courts in Jeopardy and Why You Should Care, by Rebecca Love Kourlis, Executive Director of the Institute for the Advancement of the American Legal System (IAALS) at the University of Denver and Dirk Olin, a journalist. 

Rebecca Kourlis is scheduled to be on PBS News Hour tonight.

The book tells the story of a civil justice system that has become alarmingly expensive, politicized, and time-consuming—so much so that it no longer meets the legitimate needs of the people it was created to serve.

The link to the book on the IAALS website is www.du.edu/legalinstitute/rebuildingjustice.html  Becky Kourlis has been a trial judge and member of the Colorado Supreme Court.  As the Executive Director of IAALS, she has been a tireless champion of civil justice reform in a way that seeks balance and preserves access to justice for all.  She recently wrote a Denver Post column that encapsulates her thoughtful approach to today’s civil justice system:  http://www.denverpost.com/search/ci_19007835

Topics Kourlis explores in the book include:

• Why justice is in jeopardy and few Americans know or care
• How the cost and delay of civil litigation is eroding access to the court system
• Why jury trials are a critical but rapidly vanishing part of the civil court system
• Why the current system fosters a political free-for-all in choosing judges
• How to avoid polarizing and penalizing parties involved in family court cases
• How to improve inefficiencies in the courts and restore them to better serve litigants

An excerpt from the book illustrates why this is a book busy judges with too much to read already should make the time to read this book:

The justice system is fundamental to our democracy.  The courts are the counterweight to the other two branches of government, assuring that no branch becomes overzealous.  Our Founders specifically established a system of government that is not pure majoritarian rule; rather, it is a system that focuses on protecting the rights of individuals—even against the majority if need be.  The courts are the last line of defense for those rights—the safeguard.  And, just to be clear, this is about more than the rights that attach to criminal prosecutions or defense.  The legitimacy and trustworthiness of the courts underlie our willingness to enter into a contract, hire or be hired, buy a house, drive a car, or get married.  The individuals who wear the mantle of this responsibility include not just judges, but jurors as well.  We are the only country in the world that has the benefit of a right to trial by jury in civil cases as well as criminal cases, and the enshrinement of that right in the Seventh Amendment was no accident.  The courts were positioned to balance the excesses of the executive or legislative branches, and the jury to balance the excesses of the judges.  Lady Justice, more even than the Statue of Liberty, is the beacon of our freedom, our way of life, and our sustainability as a country.

 Now, for the bad news.

 Justice is in jeopardy, for a variety of reasons, but few Americans know or care.  When the education or medical services systems are at risk, there is a national uproar.  But, as chapter 1 addresses, because a majority of the American public does not understand the courts or recognize how vital they are to our body politic, there has been no public outcry about the justice system.

 Why is justice in jeopardy?  We begin our exploration with some of the fundamental players who operate within these federal and state systems: the judges.  Judges who come to their positions in a variety of ways.  At the federal level, the system is appointive—judges are nominated by the president, confirmed by the Senate, and then serve for life or until resignation, retirement, or impeachment.  This appointment process is increasingly politicized and lengthy.

 In state courts, where selection systems significantly diverge from that of the federal judiciary, these problems are heightened.  Although something of a mishmash, they generally fall into three categories: appointment, election, or “merit selection.”  In states where judges are elected, judicial candidates—especially at the supreme court level—have run increasingly no-holds-barred expensive election campaigns in which they malign their opponents and align themselves with particular interest groups.  There is an entire movement that seeks to make courts more accountable to partisan ideology—a reasonable goal if judges are just one more species of political hack.  But they’re not, as we will explain in chapter 2.

 Jury trials have fallen prey not only to skepticism, but also to the expense of the pretrial process that depletes the resolve and resources of parties to a lawsuit before they ever get to a jury.  The tortuous process of getting a case ready to go to trial (and paying for that preparation) might actually have the effect of ensuring that it never gets there.  This is a trend we must reverse.  When we as jurors are present in the courtroom, the whole process is more inclusive, transparent, and, well, democratic.  It is the way the system was intended to operate.

 The shared component for these players is the stage on which they meet: the system itself.  Our focus is the civil justice system—the taken-for-granted and much misunderstood civil justice system.

 At both the state and federal level there is a complex support structure for the courts.  This complex support structure is at risk as courts face free-falling budgets.  Legislators are forcing the courts to figure out ways to cut out case types, cut back services, reduce jury trials, and add more folks who act as judges (but who are really not judges) to resolve cases more cheaply.  Criminal, juvenile, and family cases necessarily move to the front of the line, and civil cases languish at the back.  This is a multifaceted problem that, as we will discuss in chapter 4, threatens to destroy the system from within.

Since the 1990’s, “apology laws” have been heralded as an effective component of a strategy for reducing the incidence of malpractice lawsuits. The theory is that these laws will encourage doctors to disclose errors to patients without fear that the disclosure or their expression of apology will result in litigation. Apology laws allow defendants to exclude statements of sympathy made after accidents from evidence.  Over a dozen states have passed apology laws. It is not at all clear whether these laws are as effective as proponents hoped, but there is also little evidence these laws do any harm.  In the courtroom, apology happens frequently. 

The Washington Post has an  article on the success or failure of apologies. Peter Kim, a professor at the University of Southern California, argues that whether or not apologies are effective depends on whether the underlying is perceived to be intentional or unintentional.   

No one has done much research on the courtroom apology and whether that is effective or not, but everyone knows that acceptance of responsibility is a time honored justification for mitigating punishment.  Judges hear “I did not understand the Court’s order” pretty regularly. 

For court administrators, a sincere apology can go a long way toward instilling loyalty.  If you explain how a mistake happened, people are much more likely to believe that you have analyzed it and taken steps to avoid its repetition.  As the Washington Post article points out, “everyone makes mistakes, the search is not for people who never make mistakes, it is for people who fix them and go on to use the experience to prevent them.”

It is unfortunately all too common in the United States to hear political figures bash the judiciary. This week’s award for  champion court basher is former Speaker Newt Gindrich. Regretyably,  this phenomenon is not peculiar to the United States. It happens in Canada as well.  Kirk Makin reports in  this article  for  The Toronto Globe and Mail that a drug-injection ruling hints at likely clashes between Ottawa and the Courts. In late September the Canadian Supreme Court in a 9-0 vote held that  the federal government has the right to use criminal law to restrict illicit-drug use – but that the concerns it cited in an attempt to close Insite (a site where safe injections were provided)  were “grossly disproportionate” to the benefits for drug users and the community.

“During its eight years of operation, Insite has been proven to save lives with no discernible negative impact on the public safety and health objectives of Canada,” the Court said. “The effect of denying the services of Insite to the population it serves and the correlative increase in the risk of death and disease to injection drug users is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics.”

In ordering the federal government to exempt the clinic from prosecution for its activities, the Court said that the government cannot simply close down clinics based on its own distaste for legally sanctioned drug injection. The full opinion of the court can be found at: http://scc.lexum.org/en/2011/2011scc44/2011scc44.html 

For a trial judge nothing can be as frustrating (and at times confusing) about what to do when the dreaded note that reads “we have reached a verdict on some of the charges but can’t agree on all of them” comes from the jury. In a criminal case, there are concerns about double jeapordy and the answer differs among the states, at least for the time being. The United States Supreme Court accepted a case out of Arkansas which may clarfiy the law. The case is  Blueford v. Arkansas (docket 10-1320).  At the murder trial of Alex Blueford, the trial judge told the jury to consider capital murder and three lesser crimes — first-degree murder, manslaughter, and negligent homicide.  It should not consider any of those, the judge said, unless it first agreed unanimously that Blueford was not guilty of a greater offense, in order of the seriousness of the offense.  The forewoman announced in court that the jury had voted unanimously against capital murder and first-degree murder, and had deadlocked on manslaughter, so it did not consider the negligent homicide charge, a more serious charge.  The judge granted a mistrial, rejecting defense lawyers’ plea to declare a partial verdict of acquittal on capital murder and first-degree murder.   When Blueford was retried, prosecutors pursued guilty verdicts on all of the prior charges.   The trial judge refused to dismiss the more serious charges, and Blueford then lost a pre-trial appeal to the Arkansas Supreme Court.   Lower courts are split on the double jeopardy question.