Debate: People Power! Non-Lawyers Can And Should Be Judges

Ed. Note: Following a so-very-Tennessee story about the decisions made by a non-lawyer “judicial commissioner,” the question was posed for debate between Chris Seaton and David Meyer-Lindenberg: Should non-lawyers hold judicial positions? This is Chris’ argument.

People charged with crimes or sued civilly have to go before a judge who will hear their case. Because these are legal matters, involving laws, the average person might expect the person wearing the black robe had trainng and experience as a lawyer. In fourteen states, that idea doesn’t hold up, as non-lawyer judges preside over many cases, including criminal trials.

Take a deep breath before you start impersonating a blue-haired gender-studies major and screech “Sixth Amendment! Due Process! Fundamental Fairness!” Having non-lawyer judges is a good thing, and the judiciary doesn’t need only lawyers in its ranks.

First, the idea of a non-lawyer judge is an American ideal almost as old as the nation. In 1831, Alexis de Tocqueville* praised the American “justice of the peace.”

A justice of the peace is a well-informed citizen, though he is not necessarily versed in the knowledge of the laws,” …“His office simply obliges him to execute the police regulations of society; a task in which good sense and integrity are of more avail than legal science.

That sentiment has carried forward to the 21st century, where fourteen states allow non-lawyer judges to hand down jail sentences. In six of those states, defendants with punitive judgments have the right to seek a new trial before a judge with litigation experience. The rest only allow the practice when a defendant is charged with a misdemeanor.

No less an authority than the United States Supreme Court declared this a non-issue this year when they denied certiorari in Davis v. Montana, a case that would have definitively answered the question whether defendants had the right to trials judged by people with legal experience.

Regardless of your opinion on the High Court’s lack of desire to hear cases, this is a pretty big issue. The fact a majority of justices decided this case wasn’t worth their time speaks volumes about what people with actual law degrees think regarding the issue of non-lawyer judges.

Second, it’s arguable that some judicial positions don’t need even a law degree. American traffic courts could easily be presided over by someone with a twelve-hour certification course. One trip inside the money mills of traffic court will show anyone why no lawyer needs to sit on the bench listening to your Aunt Tammy explain why the light was yellow when she went through the intersection.

Most of the people who show for traffic court are there to argue over trivial matters and to complain how that damn cop had it out for them and a quota to meet. No sane lawyer would dare take a black robe for the grind of listening to hundreds of people bitch and moan daily about traffic tickets. Let a non-lawyer take the job and save taxpayers some money.

Third, non-lawyers are beginning to creep into the civil realm as a form of judge. This quasi-judge is called a mediator, and you don’t need a law degree to be one. Requirements for the privilege of calling yourself a mediator vary in states, but most require completion of a course and paying a fee to the state for certification or listing.

When a mediator is called in to settle a civil dispute, the theory is he or she will work as a neutral, listening to both sides and helping them reach a mutually acceptable solution to their case. The reality is most mediators work as a neutral arbiter. They step foot into the mediation with a handle on how a particular judge will rule on the matter before either side utters a word.

Those mediators then work from the following stance: “If you take your case before Judge (X), this is probably how he’s going to rule if you go to trial. You’ll save time, money, and energy by settling the case here. What’s your story?” The end result is the mediator effectively hears the case for the judge, types up a “Mediated Agreement,” both parties sign, and the mediator drops the original off at the courthouse for the judge to approve and draft an Order.

At the civil level, American trial courts are letting mediators, many without a shred of legal experience, try cases outside of a courthouse. Few have issues with this or are calling foul over a lack of due process. Despite our posturing over “due process,” non-lawyers are deciding cases inside and outside of courtrooms. There’s nothing wrong with that.

My esteemed opponent has in the past countered my arguments with the statement that I refuse to provide a solution to the issue debated. While I see this as a non-issue, I would propose the following system for allowing non-lawyers to serve as judges:

  • Criminal cases require someone with a law degree.
  • Civil trials can be heard by someone who passes a mediation course and successfully
  • Completes one mediation as determined by an experienced mediation professional.
  • Traffic court judges need to pass a twelve-hour certification course.

Sometimes solutions really are simple. Return power to the people and let non-lawyers take the bench.

27 comments on “Debate: People Power! Non-Lawyers Can And Should Be Judges

  1. Gloria Wolk

    Having a law degree doesn’t turn someone into a person who knows the law or what fair or justice means. My first encounter was the judge for my divorce. She never worked in a law office, never represented a litigant in civil or criminal court, never had training–just put on the robe and climbed up to her seat. She also never experienced marriage or divorce, had no clue about the cost of raising children. Her view of homemakers was women who watched TV all day. Twenty-two years of marriage and this judge left my children and me close to indigency.

    i’m sure a person with life experience would have been more fair and just.

    1. SHG

      You’re conflating separate issues (which, unfortunately, happens very often with non-lawyers, who haven’t been well-trained in issue identification). One is legal knowledge. The other is life experience. They are not mutually exclusive, nor does legal expertise alone suffice for someone sitting in judgment of others.

    2. CLS

      The only addition I would offer to SHG’s remarks is that a non-lawyer judge with “life experience” might not have the “life experience” favorable to your case. In that instance, you’re getting the short end of the justice stick.

  2. Richard Kopf

    Chris, there are a lot of areas of the law, as you point out, that do not require a law degree to understand and apply with a little training. Small claims courts, traffic courts, where only fines are at stake (and don’t involve the revocation of a driver’s license) and minor probate matters like presiding over an uncontested small estate with no creditors. Back in the day, I practiced before some of these non-lawyer judges and they did just fine. Two of them became good friends, and I deeply admired them.

    In times of scarce money for state judiciaries, it makes little sense to require legally trained judges to be paid relatively high wages to adjudicate puny legal matters. While there are horror stories, your proposal would largely avoid the problem of having Son of Sam sit as a judge. So, color me convinced.

    As for your debate opponent, what do Germans know anyway? I speak from experience. Some dummkopf gave me a law degree.

    Finally, and this is the most important reason why I support your side of the proposition–non-lawyer judges rankle the organized bar. That’s always a big plus.

    All the best.

    Rich Kopf

    1. CLS

      Judge:

      Thanks. When I sat down to write this the first argument that came up was traffic court. I can’t think of a single person who would go to law school, pass the bar, and gladly take a robe to hear hundreds of sob stories per day over fines.

      And I think we’ve found our esteemed host’s newest Notable Quotable.

    2. David

      Don’t many places have enough un- or underemployed lawyers who would be happy to get work as a judge for relatively not high wages to adjudicate puny legal matters? Even on a part-time basis? That is, accepting arguendo that many areas don’t require a law degree, if you can get someone with a law degree for the same amount of money, why not do so? Unless of course there are other reasons, such as rankling the organized bar, for preferring non-lawyer judges.

      I’m in a jurisdiction (Province of Ontario, Canada) that has most of its justices of the peace without law degrees and it seems to usually work okay, except for when it doesn’t…

    3. David

      Unless one wants, for rankling or other reasons, non-lawyers, aren’t there many un- or under-employed lawyers in many places who would happily accept wages that aren’t relatively high, even on a part-time basis?

      I’m in a jurisdiction (province of Ontario, Canada) that has most justices of the peace as non-lawyers, and it seems to work okay, except when it doesn’t…but for the salaries they’re paid ($127K CAD) I’ve met a number of lawyers who’d happily take the job (and in Ontario we also have paralegals as a regulated profession, so an even larger pool of people with some legal education).

  3. Charles

    Chris writes, “Criminal cases require someone with a law degree.” In other words, his wonderful idea of non-lawyer judges is good for other people’s problems, but not his client’s problems. Yes, his clients might be facing jail, but that’s cold comfort to a client who’s facing legal action that is an existential threat to their business and livelihood.

    “I’ve been sued. This will put my business under. Can we get this dismissed?”
    “Maybe, maybe not.”
    “You’re not helping. What’s the judge gonna do?”
    “I dunno. We don’t get lawyer judges for civil matters any more.”
    “Well, what’s the law say?”
    “Doesn’t matter. Just depends on the judge’s feelz.”

    1. SHG

      Unlike those Article III slackers, I presided over more than 1500 trials as a small claims court arbitrator in Manhattan. Often, a party relied on a law mandating the performance or non-performance of an act or duty. It wasn’t that one side was more “right” or “reasonable” than the other, but rather that a person or business entity did what the law required him to do.

      The law compelled the party to act. If I didn’t know that, then I could have substituted my notion of reasonableness, or even good policy, for the decision of the legislative body or executive agency. It would have been very easy to conclude that my decision for the other party was grounded in “substantial justice,” but all the litigant did was obey the law.

    2. CLS

      Charles:

      First, my proposal for a hierarchy of non-lawyer judges was theoretical. That’s part of the mental exercise of debate. In my theory, criminal trials should be presided over by those with a law degree. They will have some understanding of evidence, procedure, and the elements of an offense.

      Civil cases, whether you like it or not, get “decided” like this every single day in mediations. In fact, one’s probably getting decided near you right now.

      1. Charles

        I agree it’s theoretical. But your NIMBY theory is still NIMBY.

        You seriously are going to argue that criminal trials have “evidence, procedure, and the elements of an offense” and that’s why they need a trial judge with a law degree? You do realize that the Federal Rules of Evidence apply equally to civil and criminal cases?

        Claiming that civil cases “get decided” like this is absurd. If the parties resort to mediation, its in lieu of having the case decided by a judge and jury. That’s why they call it _alternative_ dispute resolution. And, when I retain a mediator for a client, I do my best to identify one with substantial litigation experience in the area of law at issue in the mediation. I don’t pick a random, reasonable-looking person off the street.

        The bottom line is that you’re talking about making the alternative the rule—but only for clients you don’t serve.

  4. Jesse

    I asked this very question of SHG in an email some time ago, I forget the reply but it was something along the lines of “you would be getting yourself in way over your head.”

    Which is probably true of a non-lawyer attempting to judgify. Matters of law will be overlooked, misunderstood, mis-applied, ultimately ruled on incorrectly.

    The question might be formulated in different terms : Who will do the least amount of damage to society, morally and practically?

    1) A law and order tyrant who has passed the bar but routinely ignores proper procedure, evidence, case law, and more, always in favor of the prosecution, seemingly to simply fill beds in prisons and/or self-aggrandizement on the way to higher office or

    2) A layman with an extremely healthy skepticism of police and prosecutorial power/honesty, along with a basic understanding of the presumption of innocence and Blackstone’s ratio?

    Of course not all judges fit the description in #1, but in instances like that the citizenry is already in the position of having a court doling out precious little “justice” anyway. So the choice is poor judging out of ideology or ignorance. Ignorance doesn’t look so bad here, at least those minds may be changed or educated.

  5. Felicia Staub

    The way the author describes mediation is not at all how it is in my state (Washington State). He describes mediators as decision-makers and as giving legal advice (telling them what a judge would do as opposed to what a judge might do). Mediators in WA don’t act as arbiters/decision-makers. [Ed. Note: Balance of off-topic self-promotional comment deleted. This isn’t a marketing opportunity.]

    1. Felicia Staub

      There was no self-promotion or marketing in my comment – no business name, no advertising, nothing like that. I didn’t say who I work for or where or try to draw people to come hire me. My comment was distinguishing between styles of mediation and disagreeing with your definition of what a mediator is and does. I guess you don’t like disagreement. Interesting for a blog called “Debate …”

      1. SHG

        Bullshit. You linked to your website (which I deleted on both your comments) and tried to hijack this post to expound upon the glories of your feel-good mediation business. Disagreement is fine. Trying to hijack the comments to promote your business is not. Get lost.

        1. Felicia Staub

          Wow! When I typed in my comment, among the fields it asked me for were my name, email address, and website. Given that I’m not familiar with this blog site, I didn’t know it would actually put the website in my comments. Now that you’ve brought it to my attention, I have deleted it out of that field. I was never trying to hijack the comments or your site. I was, as I said, trying to distinguish between styles of mediation and was disagreeing with your definition of what a mediator is and does.

      1. SHG

        Had she limited herself to distinguishing arbitration from mediation, as those practices are employed in various jurisdictions, that would have been fine. She didn’t.

    2. Fubar

      [Ed. Note: Balance of off-topic self-promotional comment deleted. This isn’t a marketing opportunity.]

      I will try any case for a dime.¹
      In contract, or tort, or in crime.
      Pay me double (that’s two),
      Then my judgment’s for you,
      And I’ll write my opinion in rhyme!

      FN 1: Payment only accepted as certificate of deposit in my Bank of Malta account, denominated in Icelandic króna.

  6. Billy Bob

    Normally, I would have something *significant* to say about this *important* topic. Today, I am tongue-tied.
    So let me stammer this, Will Rogers (the *homespun* American philosopher) said, “Common sense ain’t so common.” This we have discussed here several times, if not dozens of times. Check the archives, you lazy baaastards.
    Next, W.C. Fields said, “I’d rather have a bottle in front of me than a frontal lobotomy.” Brilliant!

    So now comes BB, the once and famous commenter, who sez, “I’d rather have a *learned* judge in front of me than an *illegal alien* in robes behind me– as I’m lead out of the courtroom in handcuffs and legirons. Illiterate as well, I might add!?!

    All Rise! Judge Kopf, you may remain seated!
    Age before Beauty.
    All the Best,
    BB.

  7. Pedantic Grammar Police

    Some “sovereign citizens” might also accuse judges (or maybe even mediators) of “listing to both sides” in their law of the sea courtrooms with the fringy flags, but in this case it appears that you meant to say “listening to both sides.”

  8. Ken Mackenzie

    Justices of the Peace, usually in threes, still decide minor criminal cases in England. They have a legal adviser, to keep them somewhat within the bounds of the law. There are also generous rights of appeal, amounting to a re-trial before a proper judge. It’s a cheap system, which is why it survives, but they’re slow, tedious, and lean more towards the police than the professionals.

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