Finding the right balance
We asked four White & Case lawyers, all of whom are active litigators, to discuss the US justice system—its strengths, its flaws and their perspectives on how to improve it.
You all have a great deal of experience with the US justice system through both your commercial and pro bono work. What do you believe are its greatest strengths?
Fernando Aenlle-Rocha: Day in and day out, the courts work well, even with limited resources. This is a country that cares, deeply, about notions of justice and fairness, which are rooted in the US Constitution and go back to the earliest days of the founding of the nation.
Raoul Cantero: I think in the vast majority of cases, justice is served. I think the US justice system is designed, to the extent possible, to make sure that the truth gets out and that parties going into litigation and trial do so with absolute knowledge of the other party's strengths and weaknesses.
Lawyers as a profession have a different and enhanced level of responsibility to uphold the system and to do things within our power to fix it. Clinging to the way we've always done things is the biggest challenge we have as a profession. We need to think bigger, broader and better about this.
Heather McDevitt, Partner, New York
Heather McDevitt: Structurally, we have a system that is unparalleled to just about any country worldwide. Fundamentally, it aims to achieve objective results, that are predictable and that can be enforced—which is not the case in many other legal systems worldwide.
Fernando: And it's a system rooted in honesty and integrity. It's very uncommon to hear of a judge or prosecutors, or even law enforcement officers, taking a bribe.
But what are the challenges?
Heather: We have a significant percentage of the population that effectively has no access to the system. If they are deemed to have too much money, by which we mean barely above the poverty line, they cannot qualify for the few sources of legal assistance our system offers, yet they cannot afford a lawyer. So our system, which is supposed to inspire trust and stability and reliable results, is not doing any of these things for a significant number of people.
Fernando: Yes, there's a saying, "You get as much justice as you can afford." This is a core weakness in our system. If you have two individuals charged with murder, one is wealthy and the other is impoverished, there's a strong likelihood that the wealthier person has a higher chance of a better result.
Raoul: The cost of litigation and discovery is so high that only individuals and companies with a lot of money can litigate to conclusion. So these cases often aren't filed, or are settled long before trial. Increasingly, this is leaving more people out of the system.
Sonia Murphy: There's a societal piece too. Where we go wrong is that all humans have inherent bias. Sometimes it's recognized and sometimes it's not. The system isn't designed to handle this and tends to reflect the views of only certain groups.
How does this play out for individuals or groups who need access to the justice system?
Heather: It could be anything—a family dispute or perhaps a small business dispute. It's a range of very real and meaningful economically impactful problems people can have but that they can't rectify because they don't have access to counsel. And legal service organizations just can't keep up.
Raoul: It's not limited to small companies and matters. Even medium-sized companies have to take into account the size of the claim and consider settling on mere economic grounds, even though they think they'd win the case in court.
Sonia: We say that everyone is entitled to a jury of peers, which is a fantastic idea, but on this jury are people who look nothing like the person in court, with entirely different economic and cultural backgrounds, who just don't understand the issues he or she is facing. This is where equal justice under the law starts to go awry.
But there must be solutions. What might be done?
Heather: Access to justice is expensive but, in this age of technology, there ought to be situations, especially in the context of smaller economic disputes, where people can access the court system through their computers, their smart phones or their tablets. To do this, we'd need to create better protections around pro se counsel and maybe even create specialized courts beyond what we have now. There should also be better online arbitration or mediation mechanisms for litigants with civil disputes that don't lead to a jury trial. It might require supreme courts or legislators to make these changes, but we need to be much more innovative as a profession about the way we deliver results in the civil justice system.
Sonia: We also need more oversight. The Department of Justice did a report on the town of Ferguson, Missouri after the death of teenager Michael Brown, and what they found were significant flaws in the way Ferguson's law enforcement policies were being enforced. But it took a teenager's death for this to be examined. More oversight will bring more light to things that are happening in communities, and knowing that the oversight is there will encourage people to behave better.
Raoul: We could reduce costs by creating a more streamlined process for discovery. We could also adjust the rules so that judges have more leeway to adjudicate cases before trial when the facts are not disputed or cases are meritless. With a more accurate view of applicable law, I think a lot of cases could be resolved a lot sooner in the process. I also believe we need to increase bar dues to go toward paying for indigent services.
Fernando: We definitely need more funding, for our courts and for our public organizations, which provide legal services to those who cannot afford them. There have been deep and serious cuts to budgets within the state justice system that impact, if not the quality, then certainly the efficiency of the courts.
What role can pro bono play?
Fernando: We need to persuade the best in all legal communities to do more. It's a cultural shift. Young lawyers especially want to work on pro bono matters, so we need to manage the resources to make this possible.
Heather: Pro bono work can help to alleviate some of the crush and help with the issues around public opinion. In New York, mandatory pro bono is part of young lawyers' training, and I think this will help instill good habits.
Raoul: I believe lawyers have a duty to represent indigent clients pro bono. It doesn't need to be a large responsibility, but we must take on some of this responsibility because it is a privilege to practice in court.
Sonia: I became a lawyer because I love the US Constitution. And I'm a firm believer that you align your work with your passion, so finding pro bono opportunities our lawyers care about is important.
So in conclusion?
Fernando: There's no one person or organization that can fix everything, but we need to mobilize lots of players to do something.
Sonia: When we say equal justice for all, we need to be doing everything we can as a country to ensure equal really does mean equal.
Heather: I see no reason why people with goodwill and creative thinking can't find ways to expand the system to provide access to justice for all. Lawyers as a profession have a different and enhanced level of responsibility to uphold the system and to do things within our power to fix it. Clinging to the way we've always done things is the biggest challenge we have as a profession. We need to think bigger, broader and better about this.
Recent justice system pro bono work
Investigating alleged brutality and management failures in the Los Angeles County jail system
Our lawyers joined nearly 50 other lawyers from ten firms as counsel to the Citizens’ Commission on Jail Violence, a panel created by the Los Angeles County Board of Supervisors to investigate alleged brutality and management failures in the county jail system. The lawyers worked in teams to examine the jail system’s management and oversight, use of force, culture, discipline and personnel. Remedies recommended by our lawyers led to a number of deputy sheriffs being convicted in federal court. Partner Fernando Aenlle-Rocha served as Deputy General Counsel to the Commission and partner Rachel Feldman, counsel Ron Gorsich and associate Lauren Fujiu-Berger served as Counsel to the Commission.
Debtor's prison class action lawsuit in Ferguson
White & Case is serving as co-counsel with ArchCity Defenders and Equal Justice Under Law on a debtor's prison litigation brought against the City of Ferguson, Missouri. The class action lawsuit alleges that the City of Ferguson has used its local courts, jails and police force to generate large profits derived from their most impoverished residents by fining them for minor offenses and arresting them if they don't pay. The White & Case team is led by partner Frank Vasquez and counsel Sonia Murphy and includes associates from our Washington, DC and New York offices.
Seeking monetary damages for a man falsely convicted of murder
White & Case partner Heather McDevitt and associates Joshua Weedman and Jacqueline Chung have filed a lawsuit against the cities and police departments of Springfield, Massachusetts and Hartford, Connecticut that seeks monetary damages under federal law to compensate our pro bono client and his family for his 27 years of imprisonment for a crime he did not commit. The suit argues that our client's conviction was the result of egregious misconduct by the police departments of Springfield and Hartford and the District Attorney's office in Hampden County, Massachusetts.
Safeguarding the freedom of lawyer-client communications
"It's vital for defendants to be able to have a free and open discussion with their legal representatives," says Colin West, an associate in New York. "This was clearly being compromised by the existence of surveillance cameras in the attorney-client interview rooms in the new criminal courthouse on Staten Island." Colin, working with partner Gregory Little, associates Priya Srinivasan and Joshua Elmore, and legal assistant Fatima Carrillo, helped New York's Legal Aid Society in its bid to have the cameras removed. The team discovered that the prison was violating a 15-year-old order on this very issue and obtained a preliminary injunction barring the City of New York and the Department of Corrections from operating surveillance cameras in the courthouse.
Raising bar dues for legal aid argued at Florida Supreme Court
Miami partner Raoul Cantero argued before the Florida Supreme Court on behalf of members of the bar, pushing for an increase in Florida Bar member dues as a temporary stopgap for the funding crisis for legal aid services. Since 2008, funds from interest on lawyers' trust accounts—the primary method for funding legal services in Florida—have dropped by 88 percent. Raoul argued that while a potential US$100 per member increase in bar dues could not be the only solution, it would alleviate the situation while the state worked on a permanent solution for the severe underfunding of legal aid organizations.
Protecting the rights of observers of police brutality in the European Union
Advances in personal technology and the proliferation of social media have made the recording and sharing of video evidence of police brutality by the public commonplace. Efforts to suppress such evidence have also increased. On behalf of Open Society Justice Initiative (OSJI), lawyers in five White & Case offices across Europe drafted memos on the legal frameworks in their respective countries for observing and filming instances of police brutality and disseminating such videos via social media. Our research will be used by OSJI to develop a set of citizen "know your rights" tools available to civil society organizations and the general public.
Research for bail system reform worldwide
Millions of people globally are held in pre-trial detention due to legal aid systems that lack efficient criminal justice procedures, which result in delays bringing cases to trial. People of limited means may not have the resources to access bail. Lawyers from across 16 White & Case offices researched bail systems in 29 countries for Penal Reform International (PRI), an international NGO working to reform penal systems worldwide. Our research will help PRI in its efforts to make bail a more effective way to reduce pre-trial detention.
Decriminalizing petty offenses across Africa
Lawyers in five White & Case offices researched the criminalization and penalization of petty offenses in several African countries on behalf of Pan African Lawyers Union (PALU), an umbrella organization of African lawyers and law societies working to strengthen the rule of law across Africa. These laws often appear to target specific marginalized communities or groups, and those accused can face arbitrary arrest, abuse and pre-trial detention. Overpopulation of prisons is also a result. Our research will aid PALU in understanding petty offenses and relevant legislation and practices, ultimately strengthening its efforts to decriminalize these offenses across the continent.