The Mystery of Richard Posner
lawliberty.org
lawliberty.org
The article makes Posner's support of pro se litigants in his final years seem crazy and haphazard, like a side-effect of his Alzheimer's diagnosis. And maybe it was, but Posner's heart was in the right place: Pro se litigants are taken advantage of by the legal system and have the deck stacked against them. Bigtime. In civil cases, even most middle class people can't afford to hire lawyers, and are forced to knuckle under and settle, or fight and probably lose. This gives people the impression that "justice" can be bought, and it's not necessarily a wrong impression. Posner was responding, in a way, to a great and longstanding injustice.
My ideal legal system would be easy for people to represent themselves, but expensive for people to bring forward frivolous cases.
I wonder how both can be achieved at the same time?
Now, take that stereotype and raise it by a couple orders of magnitude and you've got the average pro se litigant. It's almost impossible to "skip past" those years of study and practice, and just litigate your own case as though you were a lawyer. Most pro se litigants have literally no clue what they're doing, and they often end up relying on coaching from the judge (which raises fairness issues) and from the opposing lawyer (which raises ethics issues) -- it almost never ends well.
Yet legal services, especially for defendants who are trying to protect themselves from unfair or frivolous accusations in civil court, are so often priced out of reach. So defenses are difficult and sometimes impossible to raise, and there are more than a few law firms who act as though they were mob enforcers.
There are two solutions which have been proposed:
1. In most small claims courts, both sides are prohibited from using lawyers, and legal proceedings are simplified and rooted more in common sense than established precedent. This practice could be extended to higher-value civil cases.
2. Establish a "right to representation" in all cases -- civil as well as criminal -- with public access to government-funded legal assistance. It has been argued that this might even save the government money, as pro se litigants are a severe drain on judicial resources, and this practice might weed out frivolous cases before they're even filed.
But, hell, the way things are going, legal services and even judges might soon become AI models, so who knows?
As for making frivolous cases expensive to bring forward: I think that judges should be quicker to sanction people (and corporations!) and label them "vexatious litigants," which would place limits on their ability to bring forward subsequent civil cases. That aside, I don't think that the pricetag of _anything_ associated with the legal system needs to be raised.
BTW: I am not a lawyer but have a philosophical interest in the theory and practice of law. There are lawyers here who surely know a lot more than I do.
The issue with pro se litigants is that they haven't picked up "how" to think about their case. Court is, on the surface at least, a very sterile environment filled with people who deal with life altering situations every day and are mostly numb to any individual case. That isn't an indictment because for the most part people care a great deal about things, but probably not about what the layman cares about.
Case in point is drunk driving. I've done it two or three times in my younger years. Growing up in a rural area I had my own ethics about it. I never did and would never have done it in a populated area, but I never saw the harm in making my way home on dirt roads surrounded by corn fields where there was no one else to hit. Again, i only did that a few times in my college years and was very against drunk driving. But this is the ethic that I had in mind as I showed up to my first "DUI Day" in county court as a student in practice prosecutor. The entire courtroom was filled, and more people overflowed outside - at least 200 people. And that was just the morning docket. In the afternoon it was a different 200 people. This happened every single week, 400 new people a week, without end. All thinking to some degree, just like me, that they were special in some way or what they did wasn't that bad. I learned quickly just much of a problem drunk driving is and how naive most of these pro se litigants were in thinking about their own cases. They would raise some minor complaint about the officer or some stupid thing expecting the court to side with them and throw the case out. But we see a thousand complaints and stupid things a day and almost never does it materially impact the evidence against the person. But the mindset of the pro se litigants is that they are special.
The only litigants that were ever special were the ones who either a) detached from their case in a way that let them actually objectively decide if they had a good case or not; or b) had enough sense to know they were guilty and present to us good reasons why this episode would never happen again. I dropped the hammer on so many people who weren't ready to accept they were going to ve convicted. But I let people off incredibly lightly who demonstrated that they were accountable despite making a mistake that I myself made a few times.
> It has been argued that this might even save the government money, as pro se litigants are a severe drain on judicial resources, and this practice might weed out frivolous cases before they're even filed.
The biggest drain on government money in the judicial system is when 2 big corporations sue each other. You get 2 teams of hundreds of lawyers filling 100s of motions for YEARS which takes a bunch of resources from judges, court reporters, and the clerks.
pro-se litigation is a drop in the bucket for the government when all is said and done. A pro-se litigant simply will not be able to generate the amount of paperwork out of sheer ignorance that a real lawyer could file. Sort of an 80/20 rule. Why spend the time worrying about small fry tax payer costs when the real problem is when google and oracle sue each other.
Wouldn't it encourage that strategy? If the case could go either way, the richer litigant can keep increasing the stakes until the poorer one faces ruin on a coin toss. So they are forced to settle. Even if you have (say) a 75% chance of winning, the Kelly criterion puts you out of the game once the expenses reach a certain level.
The real problem, IMO, is this will disincentivize meritorious lawsuits from poorer people against the wealthy. Perhaps that could be fixed by narrowing the scope of "loser pays" to cases like defamation and libel.
If somebody's suing Mom and Pop's Corner Bakeshop, LLC, the corporation will probably be represented by Mom or Pop. If somebody's suing Coca Cola, the corporation will probably be represented by an in-house member of Coca Cola's legal division.
So a corporation can use a lawyer to handle its appearance in small claims court, but the lawyer has to be a regular employee. It's forbidden to hire a lawyer or firm specifically to litigate a case.
The person who represents Coca Cola may not be a licensed attorney, even if they work for the corporation. (See Code of Civ. Proc., § 116.530, subd. (a) and (b).) Corporations typically send a non-attorney member of their legal staff to appear for them.
Note that you cite CCP 116.540, but subdivision (m) specifically states:
(m) Nothing in this section shall operate or be construed to authorize an attorney to participate in a small claims action except as expressly provided in Section 116.530.
Thus, the the general rule of CCP 116.530 applies, despite the language you quote in CCP 116.540, subd. (b).
The controlling language in CCP 116.530 is:
(a) Except as permitted by this section, no attorney may take part in the conduct or defense of a small claims action.
(b) Subdivision (a) does not apply if the attorney is appearing to maintain or defend an action in any of the following capacities:
(1) By or against himself or herself.
(2) By or against a partnership in which he or she is a general partner and in which all the partners are attorneys.
(3) By or against a professional corporation of which he or she is an officer or director and of which all other officers and directors are attorneys.
(I serve as a temporary judge in CA and have presided over many small claims matters so I deal with this problem regularly.)
Can an AI model properly weigh the effect of a not-yet adjudicated new law on current laws and proceedings? And at least as important, if AI becomes the default judge, with human judges reserved for adjudicating the effects of new laws, then how would those human judges gain the experience necessary to properly adjudicate new laws?
It's would be better - far from ideal, but marginally better - to increase the number of lawyers in criminal and family law and ban for-profit private representation. All cases would be heard before a random judge and argued by a random public defender and public prosecutor.
The paradox is you can only have perfect justice with perfect surveillance, because that's the only way to eliminate doubt about matters of fact.
But I've asked clients this question and while they would love to not have to pay lawyers - if you ever put the thought in front of them and asked whether they actually want an AI to represent them in court, when stakes are high and there's a chance of losing... well, I've never met anyone who has said they willingly take that chance.
Some fields will also certainly never be AI-ified. Not a snowball's chance in hell (and I know it sounds like a cranky person talking) that lawyers and judges in criminal/constitutional trials will ever be "replaced" by AI. It has nothing to to with the possibilities of present and future technology, but everything to do with optics. Society is almost certainly never going to accept being judged and/or losing to AI and algorithms. Even if a person has a losing case they would want to make sure to hear it from a human rather than a machine.
Ha, you might like Pohl and Kornbluth's classic dystopian science fiction novel "Gladiator at Law", which I think was from the 1950s. There is a trial scene near the beginning where the prosecutor and defense spend a page or so addressing the jury box. Then (spoiler) the jury box flashes and whirs, and spits out the verdict.
I believe you have a rude awakening ahead.. resolve the roles in court to authority roles, and yes, none of the professionals will give up any authority; but the "work" of law, that is to study, consider, refute and prescribe, especially with citations and written works.. absolutely yes they are top on the list to be replaced by AI.
Civil litigation is complicated, messy, and situation-driven. Lawyers are expected understand all this, and are subject to sanctions for getting it wrong. Pro de litigants are already behind the curve just trying to navigate this system, which presumes that parties are represented by legal professionals.
The biggest issue I’ve seen, however, is that pro se litigants are too emotionally invested in the process. They start from the premise that they are in the right and fail to make arguments that both advance their case as well as diminishing the opposing side.
Pro se defendants can access attorneys through legal clinics to get help and advice in many jurisdictions, provided by actual attorneys. In some cases, these attorneys might provide representation, but availability and case complexity often preclude this.
Any tools you might create to solve this problem will subject you, the author, to enormous legal liabilities. Many states already consider software that handles the simplest issues as the unauthorized practice of law. Trying to create some sort of AI to play the part of attorney would almost certainly bury you in lawsuits and be shut down by the court.
Even most upper-class people can't afford to hire lawyers, according to Peter Thiel, who said
> If you're a single-digit millionaire like Hulk Hogan, you have no effective access to our legal system. It costs too much.
https://www.theatlantic.com/liveblogs/2016/10/news-today/505...
However, Posner's evisceration of Malcolm Gladwell's Blink is masterful and I re-read it every couple years for sheer joy: https://newrepublic.com/article/68000/blinkered
I get a strong impression that law school can be a bit like computer science, in that you are taught theory but not as much the practice. I don’t want to stretch the analogy too far, but every area of law in the US, and indeed every jurisdiction, seems to have its own rules.
I’m sure law school gives you a foundation, but really effective lawyers seem to know their jurisdictions and it’s rules and the major players. As a sort of anecdotal counter example of that. I saw a big time DC law firm come into a local NJ court and get its ass handed to them by the judge for not knowing local law.
Having dealt with NY surrogate court and an NJ agency on a complaint, I can also attest that you need to know the magical incantations for each individually (and they are arbitrary at the whim of the court).
The first year of law school is somewhat useful to teach the shibboleths. Beyond that it’s pure rent seeking by the ever rapacious BigEd.
In law school, student's were warned early that while Denning's opinions were regularly published in casebooks because they clearly illuminated the law, he was often on the wrong side of the result.
> As for text, Posner had little compunction about slipping around it. He took a dim view of laws and legislatures. Statutes, he believed, are generally indeterminate, contradictory, and even counterproductive. They’re “written in haste by busy people who often are neither able nor conscientious.”
New talents are recongised only slowly over time. I've lived long enough to have had the experience of seeing people I'd noted long before gain wider appreciation, as well as seeing new faces appear out of the blue. There's also of course the reverse: formerly esteemed individuals falling from grace, with Alex Kozinski being one such example in the legal field.
Among the first appearances of Richard Posner at the New York Times is a mention in this 1978 article:
<https://www.nytimes.com/1978/06/18/archives/regulation-do-it...>
Would it be clear from it that one is dealing with a budding giant in the legal field?
(There's an earlier match on the name, though I'm not sure that it refers to the same Richard Posner, though on reflection I suspect it is: <https://www.nytimes.com/1972/04/30/archives/the-closed-enter...> (1972).)
Full search results, oldest first: <https://www.nytimes.com/search?dropmab=false&query=%22richar...>
<https://www.reuters.com/legal/litigation/after-posner-retire...>
As the Reuters article notes, Posner himself called for mandatory judicial retirement at age 80.
[1] https://www.uscourts.gov/faqs-federal-judges#faq-What-is-a-s...?
> Senior judges, who essentially provide volunteer service to the courts, typically handle about 15 percent of the federal courts' workload annually.