Posner says Bluebook is '560 pages of rubbish,' suggests changes to improve jury trials
American Bar Association (ABA) Journal
By Debra Cassens Weiss
March 29, 2016
Judge Richard Posner acknowledges his reputation as a "naysayer" and "faultfinder" yet proceeds to find fault with The Bluebook (it is "560 pages of rubbish") and the uneven quality of trial lawyering.
Lawyers often differ greatly in quality, and that distorts the trial process, according to Posner, a judge on the Chicago-based 7th U.S. Circuit Court of Appeals. A uniform system of lawyer pay—funded by the government—could reduce uneven quality, Posner says in an article (PDF) for the Green Bag. His one-paragraph pay suggestion is part of a broader analysis of problems with jury trials and appellate litigation.
"Differences in the quality of lawyers wouldn’t matter a great deal," Posner writes, "if, for example, they were compensated as judges are: with a uniform government salary unrelated to outcomes or the relative wealth of the respective parties in a case. (The analogy is to a ‘single payer’ system of medical care.) There would then be no contingent fees and no $1,100 an hour billing rates. My pay isn’t docked if I’m reversed by the Supreme Court, and neither do I get a bonus if the Court affirms a decision of mine."
Posner goes on to quote a commentator who says commercial lawyers are working in a "zero-sum tournament" in which additional legal effort purchased by a party increases the chances of winning, rather than generating more justice. In a footnote, Posner says he wouldn’t limit the critique to commercial lawyers.
Posner calls the legal profession "complacent, self-satisfied" despite a legal system that has proven ineffectual at dealing with a host of problems. Among them: problems in delivering useful legal training at bearable cost, and in providing representation to "the vast number of Americans who are impecunious or commercially unsophisticated (so prey to sharpies)."
Posner goes on to propose changes that could improve jury trials. He endorses judges appointing neutral experts in cases involving difficult technical issues, giving jurors transcripts of testimony that can be read simultaneously with the testimony, and allowing trial judges to do Internet research (as long as lawyers can contest the results).
Posner also suggests that judges eschew pattern jury instructions that are "largely unintelligible to jurors." Posner says he writes his own jury instructions when he conducts trials as a volunteer in his circuit’s district courts.
Posner also dislikes The Bluebook. He has his own instructions on citation format, consisting of two pages in an office manual he gives to his law clerks.
"The first thing to do," Posner writes, "is burn all copies of the Bluebook, in its latest edition 560 pages of rubbish, a terrible time waster for law clerks employed by judges who insist, as many do, that the citations in their opinions conform to the Bluebook."
Posner also criticizes appellate opinions, which "tend to be overlong, crammed with irrelevant facts and repulsive legal jargon." Read more
What is Obviously Wrong With The Federal Judiciary Yet Eminently Curable
19 GREEN BAG 2D 187, Part I, by Richard A. Posner
The problem when capitalists make nothing but money
The Times Literary Supplement, by Paul Collier
The Green Bag Official website; Green Bag literature; The Green Bag Wikipedia
The Bluebook A Uniform System of Citation; Bluebook Wikipedia
Baby Blue (PDF) is a free alternative to the Bluebook