Tuesday, March 29, 2016

Posner Speaks on the Bluebook and Other Topics

What Is Obviously Wrong With The Federal Judiciary, Yet Eminently Curable (Part I) by Richard A. Posner.


"An other way to characterize the legal profession in all three of its major branches–the academy, the judiciary, and the bar–is that it is complacent, self-satisfied."

"The most obvious and most readily corrigible defect of the federal trial process is the use of ‘pattern jury instructions, which are drafted by committees consisting of both judges and lawyers. . . . The problem is that, being drafted in legal language, many pattern instructions are largely unintelligible to jurors. The drafters appear to have a deficient sense of the capabilities of the intended audience."

"I employ other simple methods of making trials more intelligible to jurors, such as allowing them to ask questions, limiting the number and length of the exhibits (documents and sometimes photos or videos) admitted into evidence, ruling on the admissibility of exhibits before trial in order to expedite the trial, requiring lawyers to limit their objections to one word (so as not to distract the jury with legal mumbo-jumbo), conducting the voir dire (the questioning of prospective jurors to determine their suitability to participate as jurors in the case) myself and limiting the number of voir dire questions."

"A big problem with jury trials is that often they involve technological or commercial issues that few jurors understand (not that many judges understand them either) and that the lawyers and witnesses are unable or unwilling to dumb down to a level that the jurors would understand. There is a solution to this problem, however, though one that few judges employ: appointment by the judge of an expert witness (thus a “neutral” expert, by virtue of not having been selected by the lawyer for one party to the litigation)."

"Differences in the quality of lawyers wouldn’t matter a great deal if, for example, they were compensated as judges are: with a uniform government salary unrelated to outcomes or the relative wealth of the respective parties in a case."

"We’re not about to change from a system of mainly oral testimony to one in which all testimony is written, but at least we should give jurors transcripts of the testimony they hear. Nowadays oral testimony at a trial or other hearing is not only recorded by the court reporter but also simultaneously transcribed electronically so that it can be read by the judge on a video screen on the bench as the witness."

"Finally I’d like to see the trial judge play a more active role in the trial."

"At the level of form, the first thing to do is burn all copies of the Bluebook, in its latest edition 560 pages of rubbish, a terrible time waster for law clerks employed by judges who insist as many do that the citations in their opinions conform to the Bluebook. . . .  Yet no serious reader pays attention to citation format; all the reader cares about is that the citation enable him or her to find the cited material."

"One might think that even if the Bluebook has to remain untouchable–that is to the legal profession what the Rules of Golf are to golfers–judges and their clerks would endeavor to eliminate from their judicial opinions superfluous verbiage, which is experiencing a weed-like growth and tenacity."

"Judicial complexity afflicts the substance as well as form of appellate decision making."

"The most serious problem with appellate litigation, both at the circuit level and in the Supreme Court (as I’ll argue at greater length in Part II of my article), is the stodginess and stuffiness of the American legal culture. . ."

"The problem is that the past does not contain usable solutions to contemporary problems."

(Scott Fruehwald)


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