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On The Merits

Re-elect John Roberts!

A recent Harris Interactive poll indicates that nearly half (48%) of the 2,500 Americans who were polled said they believe that voters should elect justices to the nation’s highest court.  Bad idea?  Well, proponents could point out that the judges of many states, including Texas, are elected.  What could go wrong?  

We’ve written here before about the unfortunate consequences that accompanies partisan judicial elections and how that process often leads to public distrust of our judiciary system. With the current federal laws governing political fundraising and the level of corporate money being thrown around on federal elections, can anyone even imagine how much would be spent in order to advance the U.S. Supreme Court aspirations of a particular candidate? And does anyone truly believe that corporations would back the most qualified and capable high court candidates over those who might be inclined to do their bidding? 

If anything, we should be trying to limit the politics of judicial selection.  Much of what judges do is not expressly political, and instead involves making an impartial interpretation of the law or the application of that law to a specific set of facts.  When they do decide ostensibly political issues, the best judgments are often rendered by those who are somewhat removed from the emotion of political passions and can be a truly neutral decision maker.     

For that reason, judges should be selected on merit, pure and simple. The public deserves the best, smartest and least-biased judges at the helm of our criminal and civil justice systems. If we aren’t getting the best Supreme Court Justices with the current system, perhaps it needs to be reformed.  But turning them to politicians and putting them on the hustings would be a step backward.  

Posted: 1/5/2015 3:19:06 PM by On the Merits Editor | with 0 comments

You Don’t (Pro) Se

The people who complain about frivolous lawsuits often don’t realize that a legislative closing of the courthouse doors is not the only solution.  The courts themselves have great power to regulate and evaluate the cases that citizens have a right to bring.  

Case in point:  dealing with the so-called “serial filers,” which are present in virtually every jurisdiction in the country.  Serial filers are those who constantly file lawsuits, on a pro se basis, seemingly against everyone and everything.  Their legal claims are rarely successful, often being dismissed early in the process, but they consume valuable time that our courts could be spending on legitimate legal controversies.  

Many lawyers are applauding a recent order of the Indiana Supreme Court setting limits on pro se filers.  Inspired by one plaintiff with more than 120 pro se filings to his credit during the past six years alone, the Indiana high court has instituted new rules in a published opinion governing such filings.

In addition to requiring pro se plaintiffs to clearly state their requested relief at the beginning of their filings, the opinion permits courts to limit the number of words or pages in a filing and allows for civil or criminal penalties for those who fail to abide by the new guidelines.

Some critics of the justice system don’t really know much about the courtroom other than what they read in some of the more sensational accounts of trials.  But judges and other leaders of the bar work every day to improve the judicial branch for everyone.  And that’s exactly what the Indiana Supreme Court has done here.  


Posted: 12/5/2014 12:00:00 AM by On the Merits Editor | with 0 comments

Farewell to the AJS

You might have missed one of the very few stories about the recent dissolution of The American Judicature Society (AJS), the 101-year-old nonprofit organization dedicated to a fair and impartial judicial system. The group’s president blamed the closure on current financial challenges facing AJS and many other nonprofit groups.

Now, AJS’ center for judicial ethics will be located at the National Center for State Courts, and its additional functions will be moved to other groups with similar goals. One AJS hallmark is its strong support for all states to adopt the “Missouri Plan,” a merit-based process for selecting judges rather than popular vote. Even though many states, including Texas, still select judges in partisan elections, others have adopted the Missouri model and now select their judges through nonpartisan judicial commissions.

The idea of selecting judges based on merit has strong support.  Former Texas Supreme Court Chief Justice Wallace Jefferson frequently requested that the state legislature reform Texas’ system of selecting judges, calling the current system “broken.”  Yet improving the impartiality of the judiciary is often lost among today’s political rancor.  At least one law school professor who was quoted about AJS’ demise labeled the group a “dinosaur,” saying merit-based judicial selection “had run its course . . .”

Fortunately, there are several other organizations and nonprofit groups that are poised to pick up where AJS left off, including the previously mentioned National Center for State Courts. Here’s hoping the AJS goal of merit selection for all the nation’s judges continues, and proves that this is not an idea that has run its course.


Posted: 12/3/2014 1:23:14 PM by On the Merits Editor | with 0 comments

It’s In the Cards

Most lawyers are risk-averse by nature.  Gambling with their clients’ fortunes is not something you see very often.  

By contrast, Nevada professional gambler Phil Ivey is largely regarded as the greatest living poker player in the world. His string of success at the tables since winning three championship bracelets at the 2002 World Series of Poker has catapulted Ivey into iconic status among poker’s elite and the public. 

Now, Ivey is considering his legal options after losing a lawsuit in London where he challenged a casino’s decision to withhold more than $12 million that Ivey “won” by allegedly relying on an unfair advantage in a version of baccarat, a popular casino card game.

Using his observational skills and a card dealer’s willingness to arrange the cards in a certain direction, Ivey employed a tactic called “edge sorting,” which allowed him to determine the face value of cards based on design imperfections on the cards’ backs. The casino claimed this setup presented Ivey with an unfair advantage that voided the multimillion-dollar haul he thought he’d won in 2012.

A judge with the High Court of Justice in London acknowledged that Ivey was a truthful witness who believed what he was doing was not cheating, but the court nonetheless found that Ivey’s advantage was precluded by the casino’s rules.

The argument over whether it is ethical or “cheating” to gain an advantage based on printing flaws on playing cards may be tested again as early as next year when Ivey faces civil claims filed by the Borgata casino in Atlantic City, New Jersey. In that case, the casino says Ivey and a friend conspired to win more than $9 million in 2012 using the same “edge sorting” technique.

Of course, when you already know what the cards are because you’ve mastered the art of edge sorting, it’s not quite the risk that other gamblers take, is it?  Maybe he and his lawyers have more in common than we think.  

Posted: 11/10/2014 8:28:19 AM by On the Merits Editor | with 0 comments

ABA Rockets into the Future

The nation’s largest association of lawyers recently announced a unique partnership with an online legal services provider in a move that further illustrates the rapidly changing practice of law.

During its recent national meeting in Boston, the American Bar Association (ABA) announced that it is partnering with Rocket Lawyer Inc. to help ABA members establish more and better online connections with potential clients who otherwise would not be able to identify or afford legal counsel. ABA officials have said Rocket Lawyer will not profit from the program, and that the company will benefit from its association with the ABA. Founded in 2008, Rocket Lawyer provides free legal documents and no-cost legal information in addition to connecting online visitors with licensed attorneys at affordable rates.

In the infancy of the Internet, most law firms shied away from communicating with clients online for fear of leaks and/or the possibility of legal communications being intercepted by a third party. At the same time, many firms, including some looking to protect their own financial interests, warned clients that it was a bad idea to do business with companies such as Rocket Lawyer where legal advice would come from an attorney they likely had never met.

As is often the case, the public is a bit ahead of the profession. It has grown far more accepting and trusting of electronic communications – a dynamic that largely can be attributed to the widespread adoption of smartphones as a preferred vehicle for communicating with nearly everyone, including business associates, friends and family. As a result, services such as Rocket Lawyer have quickly grown in popularity and earned the approval of customers and, apparently, many in the legal community.

Although this certainly may not be your father’s (or your mother’s) way of practicing law, the fact remains that one of the more pressing issues facing the legal profession is the vast majority of consumers for whom legal services are prohibitively expensive. If Rocket Lawyer is successful in meeting its stated goal of “making legal services affordable, simple and available to more people than ever before,” that may well be a good thing.

Posted: 10/8/2014 11:05:11 AM by On the Merits Editor | with 0 comments

About This Blog

Thanks for stopping by On the Merits, the first blog from the Texas Center for Legal Ethics. On the Merits will take a close look at significant legal stories with an eye toward addressing the legal myths and misconceptions that turn up in news stories, movies, TV programs, websites, anonymous emails and other forms of mass communications. Our goal at On the Merits is to provide readers with a thoughtful examination of what the media and others are saying about the legal profession and to apply the frequently-absent context of how the legal system actually works.

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