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The U.S. Justice System Has Sustained Serious Damage This Year. Here’s How We Should Fix It.

At a time when bipartisanship and consensus have taken an extended holiday, most Americans agree this election cycle has been unlike any in memory.  As the late Gilda Radner’s SNL character Roseannadanna would say, ‘It’s always something.’ And all those ‘somethings’ have taken a terrible toll on America’s institutions—particularly the justice system.  The vitriolic campaign has intensified public distrust in the justice system and the rule of law–no small matter.

The Hits To Public Confidence Keep Coming

This endless, train wreck of an election has struck a devastating series of blows to US institutions and the legal system. Were the election a prizefight, it would have been stopped many months ago. By now, most of us are all-too-familiar with the details of the various scandals that have engulfed key public officials as well as the nation’s institutions. This includes: the eight-months-and-counting Supreme Court vacancy and the political gridlock surrounding it; Bill Clinton’s untimely private meeting with Attorney General Loretta Lynch—the details of which are the basis of a federal lawsuit recently filed against the Justice Department by The American Center for Law; the July and October announcements by FBI Director Comey; President Obama’s swift rebuke of the FBI after the Director’s disclosure of a ‘possible connection’ between Anthony Weiner’s investigation and Hilary Clinton’s closed email investigation; and claims by Donald Trump (walked back a bit after the second Comey pronouncement) that the election is ‘rigged.’ Add to that a disturbing succession of police shootings—as well as fatal attacks on police officers, the incendiary rhetoric of the Presidential campaign, foreign hacks, WikiLeaks, and terrorism. It’s no wonder that the American anxiety level is high while confidence in our institutions is low. A recent CNN poll revealed that 82% of those surveyed are ‘disgusted’ by the Presidential campaign.

Recent polls confirm that public confidence in legal institutions– and lawyers– is at historic lows. Gallup’s June, 2016 poll indicates that only 36% of Americans have ‘a great deal’ or ‘quite a lot’ of confidence in the Supreme Court; 23% feel that way about the criminal justice system; and only 9% have confidence in Congress. How do lawyers fare? Only 15% of the public has a high degree of confidence in them.  These dismal numbers are even bleaker when one considers the access to justice crisis–well over 80% of individuals and 60% of small businesses in need of a lawyer cannot afford one at current rates. How can the rule of law survive when most Americans cannot afford legal representation? As Derek Bok, former President of Harvard and Dean of the Law School remarked, ‘There is far too much law for those who can afford it and far too little for those who cannot.’ The election has highlighted the fragility and failings of our legal institutions and further polarized the public’s lagging confidence in them. The rule of law is in trouble.

All this begs the question: ‘Where do we go from here and how can public faith in lawyers and the legal system be restored?’  Simple answer: it’s not going to be a quick or easy fix.

Some Suggested Steps

Lawyers have much work to do to restore public confidence. Likewise, the justice system is in dire need of infrastructure repair, especially after this chaotic election. Failure to take bold, swift, and thoughtful steps designed to remediate the damage will result in a calcification of cynicism in our nation’s institutions and the rule of law. Here are a few suggestions.

(1) The ABA should step up and create a blue ribbon task force of lawyers, community leaders, social scientists, analytics experts, academicians, and social scientists, to examine the erosion of confidence in the justice system and to make recommendations to rectify it.

(2) Bipartisan efforts should be undertaken to restore public confidence in the rule of law and the justice system. Leaders of both major parties as well as third-party should convene with mediators, judges, scholars, community leaders, and international legal, business, and social scientists to collect and analyze relevant data and to identify solutions for the uneven application of and access to justice. Lawyers and non-lawyers should be part of this process.

(3) State Bars should reregulate the legal profession in light of these societal challenges and stop focusing on lawyer protectionism. This includes an examination of current regulations that narrowly restrict the structures from which legal services are rendered as well as efforts to meaningfully address the access to justice crisis. These inquiries should be not be conducted exclusively by lawyers but should also include legal consumers as well as technologists, process experts, and leaders in other industries. The legal guild must go.

(4) Law schools and legal scholars should focus more research on these ‘big picture’ issues rather than churn out arcane law review articles that, as Chief Justice Roberts has noted, are generally not ‘particularly helpful for practitioners and judges.’ Why not tap into the considerable intellectual capital of the Academy to advance the interests of the public as well as the profession? Some of these big issues include: restoration of public confidence in legal institutions, the access to justice crisis, uniform enforcement of the law—especially in the criminal process, community-police relations, The Bill of Rights in the age of terrorism, and election reform.

(5) Technology should be more effectively utilized to collect data relevant to addressing the big challenges confronting our legal system. This can be done in a number of ways including: providing on-line legal assistance, implementing online adjudication of certain types of matters, forging a partnership between the IT sector and legal agencies to expand and improve access to lawyers, legal sources and products as well as creating ways to promote swifter, cheaper, and more accessible adjudication of disputes.

Conclusion

It’s one thing to chronicle the impact this election has had on the justice system and the fissures it has revealed in our country’s institutions. It’s quite another—and more important thing– to stanch the bleeding and to take steps to restore trust in that system. Now, more than ever, respect for and confidence in the rule of law is vital to our democracy.

This post was originally published on Forbes.com and is featured here with permission from the Author.

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Mark A. Cohenhttp://legalmosaic.com/
MARK has had a long and distinguished career as a lawyer and innovator in the legal vertical. His unique perspective on the legal industry is derived from roles he has had as an internationally recognized civil trial lawyer, legal entrepreneur, early large-scale adopter of technology for the delivery of legal services, partner at one of the largest law firms, founder and managing partner of a national litigation boutique firm, outside General Counsel, federally appointed Receiver of a large, international aviation parts business with operations on four continents, (Adjunct) Distinguished Lecturer of Law at Georgetown University Law Center, writer, speaker, and acknowledged global thought leader at the intersection of law, business, and technology. Mark currently serves as CEO of Legalmosaic, a company that provides strategic consulting to service providers, consumers, investors, educators, and new entrants into the legal vertical. Prior to founding Legalmosaic, Mark was Co-Founder of Clearspire, a groundbreaking legal service provider whose disruptive, proprietary IT platform and reengineered legal model garnered international acclaim. This followed his founding of Qualitas,an early entrant into the LPO space. Earlier in his career, Mark was an internationally recognized civil trial lawyer. He was an award-winning Assistant U.S. Attorney and the youngest partner of Finley Kumble prior to founding his own multi-city litigation boutique firm. Mark is widely known for his blogging and speaking on a range of legal topics focused on changes, challenges, and opportunities in the current legal landscape. Mark maintains an active speaking scheduled, both domestic and international. He has been a keynote speaker at Harvard Law School’s Speaker Series, Reinvent Law, 3M’s Global Legal Alignment Summit, LegalZoom, University College London, and, in May 2017, The German Bar Association’s Annual Conference. He writes a weekly column for Forbes and has been published in major legal and business media sources around the globe. Mark has been active in sports and the arts throughout his life, and this is reflected in his writing and speaking on legal issues where he frequently makes references to those topics. He enjoys mentoring students and young lawyers and is known for his colorful sense of humor and candor.
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