Halstad, Damian L.

University of Baltimore School of Law

University of Baltimore Law ForumVolume 22Number 3 Spring, 1992 Article 31992A Colleague's Observation... Jerome Frank asProphet: Courts on Trial RevisitedDamian L. HalstadHoffman, Comfort, Offutt, Scott & Halstad, LLPFollow this and additional works at: http://scholarworks.law.ubalt.edu/lfPart of the Law CommonsThis Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion inUniversity of Baltimore Law Forum by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information,please contact snolan@ubalt.edu.Recommended CitationHalstad, Damian L. (1992) "A Colleague's Observation... Jerome Frank as Prophet: Courts on Trial Revisited," University of BaltimoreLaw Forum: Vol. 22: No. 3, Article 3.Available at: http://scholarworks.law.ubalt.edu/lf/vol22/iss3/3A COLLEAGUE'S OBSERVATION ... JEROME FRANK AS PROPHET: COURTS ON TRIAL REVISITED In 1949, legal philosopher and fed-eraljudge Jerome Frank published his most important legal treatise, Courts On Trial. J Widely received as a com-prehensive and incisive criticism of our trial courts, the book sought to eliminate the mystery surrounding the courthouse and propose much needed change to the judicial system. "My principal aim," Frank wrote in his pref-ace, "is to show the major importance of [trial] courts; how they daily affect the lives ofthousands of persons; and how, most often with tragic results, they do their job in ways that need reform." In the forty-three years since its debut, Courts On Trial has proven remarkably prophetic. The influx of television programs with law discussed ostensibly as their subject has removed much of the mystery from the field of law. These programs have shown us litigation, negotiation and titillation of all kind. However, Frank's specific criticisms of our legal culture remain relevant and his proposed reforms have either been adopted or are again being discussed by judges and bar associa-tions throughout the country. It is therefore helpful to today's debate to review Frank's theory as argued in his literary tour de force. Frank's fundamental jurisprudence, a form oflegal realism, can be summa-rized in his signature phrase, "facts are guesses." In other words, the Ameri-can justice system frequently fails be-cause of mistakes in fact finding. Many of these mistakes, Frank acknowl-By Damian L. Halstad, Esquire edges, are simply attributable to hu-man nature. An honest witness may erroneously observe, recollect, or ar-ticulate the facts, or may be uncon-sciously swayed by subtle subliminal biases. Further, a dishonest witness might commit perjury. These mortal failings and faulty observations are then filtered through a second tier of interpretation, the finder of fact (whetherjudge orjury), with their own similar weaknesses. While Frank con-ceded that no system can overcome witnesses who lie, forget, or allow prejudices to color memory, he also opined that a high percentage of mis-takes in fact finding actually derive from defects in our methods of getting at those facts, such as the adversary system, the use of juries, the relative unaccountability of our fact finders, and the inherent advantage enjoyed by the State in criminal prosecutions. Regardless of the source of factual mistakes, Frank argued thattheirpreva-lence makes it virtually impossible for even well-trained lawyers to predict a court's decision in any given case. Attorneys, however, find the reality of this subjectivity intolerable, and hence perpetuate two myths to impose order on the court system. M)1h Qn.e: Re-gardless of the actual facts, a rule of law exists to dictate the court's deci-sion. M)1h I.wQ: Even ifthe trial court renders a bad decision, the appellate court is a safety net that will itself apply the correct rule to the facts. Frank concludes that both fictions are falla-cious. What good is a legal rule, he asks, if the facts to which we are apply-ing the rule are wrong? Further, how remedial is an appellate court when it too is basically constrained by the fac-tual findings of the trial court? The short answer is that the justice system must reject these rationalizations and concentrate on improving fact finding. Frank's proposed reforms read like a checklist of what plagues the judicial system today. His recommendations included that courts institute "talking movies" of trials; use non-partisan "testimonial experts" called by judges; encourage trial judges to actively ex-amine witnesses; require special edu-cation for prosecutors - a type of moral fitness test emphasizing the obligation of a prosecutor to obtain and bring out all evidence, including anything ex-culpatory; and require similar training of police to guard against "third de-gree" interrogations. His most com-prehensive and novel reforms, how-ever, pertain to legal education, the jury system, and the role of the trial judge. Legal Education Frank argued that the legal rule and upper-court myths owe their continued existence to American legal education. He frequently complained ofthe "neu-rotic-escapist" character of contempo-rary law schools, with their over-em-phasis on the library, appellate opin-ions, and legal theory instead of the reality of practice: ____________________________ 22.3/fhe Law Forum - 13 The law students are like fu-ture horticulturists studying solely cut flowers; or like fu-ture architects studying merely pictures of buildings. They resemble prospective dog-breeders who never see any-thing but stuffed dogs. Per-haps there is a correlation be-tween such stuffed-dog legal education and the over-pro-duction of stuffed shirts in my profession. This form of detached legal education owes its beginning to Harvard Dean, Christopher Columbus Langdell, a bril-liant recluse who rarely went to court and therefore deluded himself into be-lieving that law is a science and a library the laboratory. "What qualifies a person to teach law," Langdell wrote, "is not experience in the work of a lawyer's office, not experience in deal-ing with men, not experience in the trialorargurnnentofcauses,notexperi-ence in learning law .... " As a result, long after Langdell, law students are taught by professors who often know very little about being lawyers. Ironically, the method oflegal train-ingthatLangdel1 replaced was, in truth, superior. The colonial law student was essentially an intern; an apprentice who "read law" in the office of a practicing attorney. He was in daily intimate contact with courts and law offices. "Before his eyes, legal theories re-ceived constant tests in legal practice." Arguing that the profession was dam-aged by the abandonment of the ap-prentice system, Frank presented spe-cific reforms to improve the curricu-lum. Frank first suggested that most law schoolteachers possess five to ten years experience practicing law. This would end the perpetual cycle ofthe book-law teacher producing not lawyers, but other book-law teachers, ad infinitum. Next, Frank proposed that the law school "case system" should be modified to replicate the case history style used in medical schools. This would allow law students to read and examine the 14 - The Law Forum/22.3 complete record of the dispute, rather than just analyzing the appellate opin-ion. Frank also used medical schools as a model for proposing a supplement to the texts. He advocated frequent visits by the law student to both trial and appellate courts. "What would we say of a medical school," he wonders, "where students were taught surgery solely from the printed page?" Like a resident internship at a hospital, Frank suggested that law schools operate le-gal clinics where students could pro-vide free services to those in need while simultaneously learning the hu-man side of the administration of jus-tice, including the hazards of jury tri-als, how legal rights are affected by lost papers, missing witnesses, perjury and prejudice, the effects of "fatigue, graft and laziness," on judges, and real draftsmanship. In short, Frank believed students could be taught to read a case in six months. The remainder of the three year law school experience is wasted. Supporters ofthe Langdell method ar-gue that book-law analysis does no harm, and students will eventually learn the real legal facts in practice. Frank effectively dispelled this tepid argu-ment by countering that students are essentially miseducated by receiving or forming an erroneous, ivory-tower impression ofthe ways courts and law-yers behave. He finally asks, ''what kind of education is it that has to be undone?" The Jury System For ages the jury system was viewed as the great achievement of English and American jurisprudence. The jury, according to lore, finds facts and then uses legal reasoning to apply to those facts the legal rules it learned from the judge. Frank, however, rejects this theory as naive and labels juries ''the skeleton in the judicial closet." He proposed his own "realistic" theory: that jurors often ignore the facts, defy the law, and "determine that they want Jones to collect $5,000.00 from the railroad company, or that they don't want pretty Nellie Brown to go to jail for killing her husband; and they bring in their general verdict accordingly." Cases are decided according to what the jury supposes the law ought to be, and the jury therefore becomes not only the judge but the legislature in a "court house government." Further, the general verdict (guilty ornot guilty, liable or not liable) hide the jury's errors by keeping from view their de-liberations. Frank does not condemn jurors for this failure. Juries simply do not un-derstand what they are told by the judge about the legal rules. Given that the law is often incomprehensible to attorneys, we obviously ask too much of the jury. If, by chance, the jury understands the rules, they still face formidable obstacles in ascertaining the facts. In addition to the normal problems highlighted by Frank's fact skepticism,juries often need computer-like memories to assemble and sepa-rate evidence which may by too eso-teric or scientific to begin with, and must overcome what Frank called the ''thirteenth juror" - prejudice. Frank concluded that ''there is probably more wool-gathering in jury boxes than in any other place on earth." As a solution, Frank bluntly pro-posed abandoning jury trials except in major criminal cases. Alternatively, he recommended several changes to the jury system, including the special verdict, which compels the jury to make specific findings offact to which a trial judge may apply an appropriate rule. Frank believed that this would ensure, at least to some degree, a reasoned verdict rather than an emotional re-sponse. Frankalso suggested the "spe-cial jury." If a case relates to a particu-lar business, trade or profession, Frank recommended empaneling a jury con-sisting of citizens engaged in the same business, thus reSUlting in a more in-formed jury. Next, Frank believed the court should employ its own objective expert to report on the facts and form an opinion that the jury may take or leave. Frank would also abolish most of the civil exclusionary rules; hetheo-rized that such rules often keep out important evidence without which the actual past facts cannot be detennined. Frank further suggested recordingjury deliberations so that the Court could determine whether the verdict was reached by improper means. Finally, Frank recommended citizen training for jury service consisting of courses that track the function of the jury and nature of trial court fact finding. Such a requirement might mitigate the class warfare that is currently conducted in today's urban courtroom. The Role of the Judge In response to his rhetorical ques-tion, "Are judges human?" Frank an-swered an empathic "Yes." That real-ity, as much as any other, affects the fact finding process: [The judge's] own past may have created plus or minus re-actions to women, or blonde women, or men with beards, or Southerners, or Italians, or Englishmen, or plumbers, or ministers, or college-graduates or Democrats. A certain facial twitch or cough or gesture may start up memories, painful or pleasant. Those memories of the trial judge, while he is lis-tening to a witness with such facial twitch or cough or ges-ture, may affect the judge's initial hearing, or subsequent recollection, of what the wit-ness said, or the weight or credibility which the judge will attach to the witness' testi-mony. Combine the judge's idiosyncracies with his very human attention span, and the impediments to accurate judi-cial fact finding are evident. More-over, the judge often feels compelled to obscure her findings and subsequent decision in a legal opinion that is basi-cally undecipherable. Much of the obscurity is due to what Frank tenns "robism," or ''the cult of the robe." The use of the robe, which did not become standard in the United States until the late 1800's, provides equal prestige to the worthy and unworthy. It creates an air of mystery about the bench and thereby shields judges and their methods from rational inquiry. "Robism" similarly affects court opinions. "The conven-tions of judicial opinion writing, " Frank observed, ''the uncolloquial vocabu-lary, the use of phrases carrying with them an air of finality, the parade of precedents, the display of seemingly rigorous logic, bedecked with 'therefores' and 'must be trues' lendan air of thorough certainty, concealing the uncertainties inherent in the judg-ing process." Believing that courts have an obligation to make themselves intelligible to the average citizen, Frank advocated the literal and metaphorical abandonment of the robe, relying on the somewhat dubious beliefthat"plain dress may encourage plain speaking." To otherwise help improve their perfonnance, Frank suggested special training for trial judges. In light of the almost irreversible weight given judi-cial fact finding, it is imperative that they be prepared to do their job will. The would-be judge should first de-velop solid litigation experience as a trial lawyer, including an apprentice-ship with a trial judge. He should be educated in psychological devices use-ful in testing the trustworthiness of witnesses. More importantly, Frank believed the prospective trial judge should undergo "something like a psy-choanalysis" to explore his own preju-dices and biases in an attempt to over-come them. Additionally, Frank sug-gested that the future trial judge be-come aware not merely of his preju-dices, "but also of the factors which peculiarly affect his capacity for sus-tained attention, so that he can avoid inattention when witnesses testify be-fore him." Finally, prior to appoint-ment, the trial judge should be required to pass a "stiff examination" of her legal ability and moral character. Conclusion Ultimately, the importance of Courts On Trial transcends its specific reforms. In the midst of McCarthy's America, Jerome Frank undertook an assault on the most sacred of our gov-ernmental branches by attacking the myth ofthe court's divinity. Byexpos-ing the warts of the judicial system, Frank promoted beneficial changes, including videotaped trials, law school clinics, practical legal education, and the humanization of the bench. In-deed, while some ofthe weaknesses in our courts that Frank noted still exist today, they are nevertheless more ac-cessible and frankly fairer than forty years ago. Courts On Trial arguably initiated that improvement, and will hopefully inspire continued attempts to perfect the process. Endnote 1 Jerome Frank, Courts on Trial (1949) (First Princeton Paperback ed., Princeton University Press 1973). About the Author: Damian L. Halstad, Esquire is an associate with the law firm ofHoffinan & Comfort in Westminster, Maryland. He is a 1987 graduate ofthe University ofMaryland School of Law and a 1983 graduate of Loyola College. He is also a fonner law clerk to Judges of the Circuit Court for Carroll County, Maryland, and the Court of Special Appeals of Maryland. _____________________________ 22.3/fhe Law Forum - 15 r Rigler & O'Neill Court Reporters, Inc. 19 East Fayette Street, Suite 303 Baltimore, Maryland 21202 (410) 659-0249 2 Weeks Normal Delivery Rush and Daily Copy 6 Full-time Reporters Full-time Support Staff est. 1984 Video Capabilities 20 Minutes from Airport Conference Room COMPUTER SERVICES Computer-Assisted Transcription Key WorklPhrase Indexing Optical Scanner Litigation Support Archival of Depositions ASCII Discovery zx LITIGATION SUPPORT FORMATS AVAILABLE Discovery 9-Track SMH MARYLAND BAR REVIEW FOUNDED IN 1964 - SERVING MARYLAND SINCE 1980 Out-Of-State Attorneys' Course Law Components o Written material- full text, summary outlines, flashcards, and checklists o Lectures (live, videotape, and audio tape) Practice Components o "How To" class and outline o 75+ Maryland essay questions (with analysis) Other Course Offerina:s o Bar candidates' courses for 20 other states o Multistate Professional Responsibility (MPRE) Course o The Writing Workshop Discounts o Up to 30% for early registration o 50% to mUltiple-time non-SMH alumni o 60% to second state SMH alumni o 75% to SMH Maryland retakers Maryland Bar Candidates' Course Law Student Package o Written material - "How To" booklet, 2-volume Law School Summaries, and the Flash card System o Exam Review Lecture Series Main Course Law Components o Written material - full text, summary outlines, flashcardds, checklists, testable points of law, and end-of-course Supreme Court and Maryland updates o Lectures (live, videotape, and audiotape) Practice Components o Workbook (with study strategy and practice plan) o "How To" class o 2,000+ multistate questions (with analysis) o 250+ Maryland essay questions (with analysis) o Three 30-minute personalized critiques (with approach charts) o Four 2-day simulated bar exams (with analysis) For additional information or printed literature, call 410-529-9220 or 1-800-927-6536. 16 - The Law Forum/22.3 

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