Comments on "Rebooting Justice", a book authored by Barton and Bibas

I  saw a review of the book Rebooting Justice, by professors Benjamin Barton and Stephanos Bibas (henceforth "the Professors") . I did not read and do not plan to read the book, but I believe my litigation experience qualifies me to address some key points of the book as highlighted in the article by Mark Pulliam.

Quoting a reader of name gabe in the comments section of that blog, "it sounds like another 'Lawyer Full Employment Act' ". The reader as well as the author of that blog palpably disagree with the Professors' suggestion that funds for the defense of felony cases be increased to match the resources assigned to prosecution. I join them in their criticism. I dispute the Professors' position that the under-funding of public defenders and court-appointed counsel is a major issue. One just needs to look at all those represented parties who disburse fortunes to their lawyer only to realize that the lawyer was overly negligent.

The Professors' other suggestions such as "mediation alternatives" and "inquisitorial judges" are somehow already provided in the legislature and/or procedural law. Purist debates aside, where's the line between an inquisitorial system and the judge's OBLIGATION (in an adversarial system) to ascertain the truth? The sad reality is that many judges disavow that cornerstone obligation and other duties they acquired since the moment they are sworn.

Except for vexatious litigants, filing a complaint in court is not done out of boredom. By the time a complaint is filed in court, the plaintiff is persuaded that other mediation-like venues were futile or he justifiably believes that they will be so. Both mediation and negotiation are premised on mutual willingness to reach a solution, and in most situations the adversaries are free to negotiate on their own. Therefore, the Professors' suggestion of creating "mediation alternatives" means additional overhead to the disputes between parties.

Best case scenario is that a "mediation alternative" will do no harm other than delaying the course of justice. In reality, mediation "alternatives" sometimes end up being compulsory just because some judge arbitrarily came up with that "interpretation". By doing so, the arbitrary judge crafts an additional tool to deny justice under the pretext that the plaintiff "failed to exhaust administrative remedies". One example of this type of fraud by judges is discussed on pages 47-49 of my Application for Leave to Appeal pending in the Michigan Supreme Court, also explained at minute 36:55 in the 6th segment of my series Corrupted from Ed to Judge.

The Professors' proposal of "a court system designed for pro se litigants, with simplified procedures" is redundant, demagogic, and impractical. For example, what if one party is pro se but the opponent insists to be represented? In such instances, how will a judge balance between the long-standing procedural law and the "simplified procedures" that the Professors suggest? In other words, what will due process entail in those scenarios?

Current procedural law in one or more jurisdictions contains gaps and discrepancies that the jurisdiction's top court leaves unaddressed. One real-life example is developed on pages 38-41 of the Application for Leave to Appeal, regarding my other case pending in the Michigan Supreme Court. There, the Application Brief denounces (1) how judge Carol Kuhnke abused that gap in the Michigan Court Rules to enforce her miscarriage of justice (in doing so, judge Kuhnke repeatedly violated another Court Rule), and (2) how judge Mark Cavanagh and the appellate panel he presided looked the other way regarding that gap, inconsistent with judge Cavanagh's approach in an unrelated appeal (COA# 256051). With this sort of unsolved gaps in the existing procedural law, imagine the multitude of new loopholes that judges would exploit if a parallel court "for pro se litigants" is implemented.

Furthermore, how will case law be applied or adapted to the "simplified procedures"? will prima facie elements be different and also more useful in the simplified procedures? I doubt it. Courts will inevitably end up reinventing the wheel in many situations, thereby rendering the already slow judicial system even slower ... and perhaps more inconsistent.

People need to know that, whatever room there is for simplification of procedures, their best way to achieve them is by putting pressure on the legislators. After all, appellate and supreme courts repeatedly acknowledge (albeit often disavowing) that the judiciary must yield to the legislature. Of course, the negligent or rotten judge ignores his/her jus dire job and instead indulges in jus dare.

The only realistic solution to the judicial mess requires that people educate themselves on legal matters. Education does not necessarily involve enrollment in overpriced Law School programs. Nowadays, printed resources and the Internet greatly facilitate this essential element for when we are harmed by rotten individuals. Comparing that realistic, low-budget solution versus the gigantic funds required for the implementation of the new procedures and new courts hosting additional corruptible judges is a no-brainer.

Learning about legal matters is certainly boring. Moreover, it feels wasteful for us who have other intellectual interests. There is an undeniable cost of opportunity in having to study law just because many judges refuse to do their actual job. But knowledge is power, and there is simply no other long-term antidote to the undeniable corruption of the judiciary. The Professors are right in that the "legal" system is a cartel (I am adding the quotation marks), and I assure you that it will remain that way for as long as people continue to delegate any and all legal/judicial matters to "a lawyer".

The solution I promote places the victim in a better position to demand justice and to realize as well as denounce when a judge or attorney is defrauding him. That education is also likely to discourage wrongful conduct, since many potential offenders would think twice before engaging in unlawful or inequitable acts.

Iñaki Viggers

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