Try A Little Comity

A year or so ago, I actually flirted with the idea of becoming a judge. I was encouraged by someone with more power than sense. My ego warmed to the topic, and I spent a couple of months working the telephone seeing what would be involved and whether I would have the support necessary to make the transition from Hell-raiser to jurist. Needless to say, a robe is not in my future. But I can still dream of what it would be like to shape the manner in which our courts do their jobs.

Were I on the bench, I would press for a joint state and federal working group of jurists. We have two separate court systems operating in this state, each the creation of separate sovereigns. But that doesn’t mean they should behave as if the other were an interloper. Many lawyers practice in both sets of courts; these lawyers are often torn between two lovers. There’s no need for that.

Here’s a working agenda for my fantasy justice committee:

1. Voir dire reform. It takes a couple of hours to pick a jury in the federal system. State court jury selection routinely takes days. That’s because on the state side, we permit individual questioning of each juror outside the presence of all others. In federal court, jurors are picked as a group. I have picked dozens of juries in both state and federal court. The quality of state-court juries is no better than federal juries. Can’t we eliminate the waste in state court by moving closer toward the federal system?

I am not suggesting that the state courts adopt the federal manner of picking a jury. Too many federal judges conduct voir dire themselves and do not permit the lawyers to question jurors. Judicial voir dire is most often a meaningless farce, with a judge bleating through a list of questions with all the nuance, insight and discretion of a grade school child presenting his mother’s grocery list to a harried store clerk. Let the lawyers conduct voir dire. We don’t bite, and odds are we understand the case to be tried far better than does the judge.

The first task for a joint state-federal task force is to create a new, hybrid jury selection system. The state can save millions and move a clogged court docket by compressing voir dire into a day’s work in the vast majority of cases. The federal bench can learn a little humility and perhaps lose some of its ill-founded terror of what would happen if lawyers were permitted to select juries.

2. Scheduling. Last summer, I wrote to a federal judge inquiring about the status of two of my civil cases that had, for all intents and purposes, gone missing. I requested that they be set for trial. The letter was ignored for months, and then, out of nowhere, an order appeared, directing that jury selection would soon take place in both. Pronto. Never mind that I had long since committed to try cases elsewhere. Is comity a bad word?

The state criminal system operates on a 24-hour notice system, with cases called in for trial abruptly. The state civil system often provides dates certain, but appears to over book, resulting in lawyers showing up for trial only to be sent home. The federal system belches out imperious notices with apparent disregard of the state system. Busy trial lawyers navigate these conflicting orders as best they can.

Wouldn’t it make sense for all of the judges in Connecticut, state and federal, to use the same method for setting trial dates? That system would preferably result in a system under which lawyers had the ability to plan months in advance about where and when they were to try each case. My office spends too much time negotiating conflicting dates as a result of the lack of coordination of the judiciary.

There is an almost medieval feel to the practice of law in Connecticut. No, we don’t draw and quarter people: but we have conflicting lords each acting as though the other is an inconvenient presence. We can and should do better. But that would require cooperation among the lords of our overlapping manors. Is that too much to ask?

Reprinted courtsey of the Connecticut Law Tribune.


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