The future of the justice system or why the rise of Trump mirrors the problem of out judicial system

A quick, or even long, perusal of comments on various web sites by Trump supporters yields common themes.  First is a generalized anger without any understanding of what the anger is about and second is an absolute absence of any rational discussion of problems or how to solve them.  This brings us to the justice system, there is a general anger about the problems in the system and an absence of rational discussion of how to solve them
The first step in solving any problem is to identify the problem.  Which brings us to "Rebuilding Justice," Rebecca Kourlis and the Institute for the Advancement of the American Legal System.  If you go to their site and read the blog posts, what is interesting is that there is never any comment.  When nobody disagrees with a point made by an author, one of three possibilities exists.  First, the author is saying something trivial, second there is a emperor has no clothes syndrome or third, there is a firehouse effect.   What is being said there is not trivial, they are all emperors so there is no fear of another emperor, so the conclusion is that there is a firehouse effect.  That is, a bunch of people congratulating each other on their shared brilliance.  In fact, what we have is a bunch of people stuck in a box trying to make a more comfortable box rather than thinking outside of it.
The book and institute rely on three basic principles: 1.  That the adversarial system is the best way to achieve truth and justice.  2.  That people unfortunately do not fully understand or appreciate the civil justice system.  3.  That the problem with the system is inadequate judges and that appointing, rather than electing, good judges will help solve that problem.
So let us start with proposition number 2.  As I said initially, there is a general anger about the system.  This is because most people feel disenfranchised from it and further feel that they have no voice in it.  This is primarily because most people are disenfranchised from it and have no voice in it.  Many people simply read about various, what seem to be, outrageous verdicts and decide that the system is rigged against them because they don't have access to those verdicts.  Some go so far as to file pro se complaints looking to cash in on a lottery type judgment.  But for the vast majority, they see the system as stacked against them in the cases that truly have meaning to them.  Most people have far greater interaction with the courts from traffic, small claims and tort actions.  Erin Andrews gets $56 million, Hulk Hogan gets $105 million and many compare their injuries and lack of comparable compensation and decide that the system doesn't work for them.  Worse, many with real grievances find that they cannot get relief, or even an explanation why they can't get relief, from the courts.
Going back to number 1, the idea that the jury system is the best way to find truth and justice is just laughable.  In "Rebuilding Justice" the author states that "The Wisdom of Crowds" proves her proposition.  When citing a book, it seems to me that it is important to carefully read that book.  The author makes specific reference to Francis Galton's experiment wherein a group of close to 800 guessed the weight of a slaughtered ox.  The average of all guesses was astonishingly close to the actual weight.  The point was that a sufficiently large group, acting independently, demonstrates great wisdom,  In other words, beware of small sample size.  A jury, of course, is not a large crowd and does not act independently.  James Surowiecki, the author of "The Wisdom of Crowds" does discuss small group decision making and further how those groups can achieve good results.  The issues that small groups have, however, are complex, Surowiecki devoted a good portion of his book to determining how small groups can function and achieve a positive result. But he also points out the pitfalls and the dangers of small groups making decisions.  In the age of jury consultants. press agents and public relations firms, all intent on prejudicing the jury, the idea of impartial juries is absurd. Even if one could be found, the problems with juries delineated by Surowiecki are still present.  But there is a bigger problem with the civil justice system, that is, randomness.  If one is to read "The Wisdom of Crowds" one should also read "Fooled by Randomness."  The idea that our entire civil justice system is built on randomness is scary but true.  We are often told that nobody can predict what a jury will do, which is frightening in a system designed to discover truth and justice in a predictable manner.  The fact is that we are not looking for truth and justice, we are looking for winners and losers.  It is no longer the lawyers who decide the outcome of civil jury trials, it is the jury selection consultants who do.  I will discuss judges deciding cases later, but for now suffice it to say that it is the choice of judge that frequently determines the outcome of the case.  But back to the real problem, that is, unpredictability.  Back in the 1970s, there were a series of children being paralyzed by an allegedly defective swimming pool slide.  The story I heard then, perhaps apocryphal, was that a lawyer represented a number of children so injured.  He was offered a million dollars to settle his first case, turned it down and lost the trial.  In the second case he again was offered a million dollars, turned it down and got a verdict of ten million dollars.  The story making the rounds was that he was courageous and great lawyer.  Good for the second kid, but what about the first?  Too bad for him, I guess.  I can give a real story that I know is not apocryphal.  I represented a child who had been misdiagnosed when he had spinal meningitis,  As a result he had partial paralysis of his right arm and cognitive difficulties.  After some research, I discovered that the identical case with the identical defendant's expert witness had been tried to a not guilty and had then been affirmed on appeal.  I settled the case for one million dollars.  Good for me, but what about the first kid?  His lawyer was, no doubt, as good or probably better than me.  He simply had the misfortune of going first.  Whether his lawyer was offered a settlement I do no know.  But I do know that child needed help, help which would not be forthcoming.  I once took a deposition of a defendant's medial expert in a cerebral palsy case.  The opposing lawyer mentioned, after the deposition and in passing, that these children were taken care of irrespective of the malpractice claim.  The doctor corrected my colleague pointing out that we did not, but should.  So the question becomes: "Should the well being of severely injured children be dependent on the vagaries of the civil justice system?"  Approximately one third of one percent of babies are born with cerebral palsy.  We should certainly determine whether or not a doctor is doing something wrong if his percentage is substantially higher than that, but is an adversarial system the best way to determine that?  Wouldn't some sort of collaborative system be far more efficient?   But should that child's future well being be decided randomly?  Does a baby know. or care, whether his catastrophic injury is the result of provable negligence or not?  Actually, we can go further than that, should anybody's outcome be dependent of the wealth or judgment worthiness of a defendant?   Or for that matter, the skill of his attorney or the his jury consultant?  Imagine two men having coffee, both leave after their meeting.  They both are thinking about their meeting and strike pedestrians.   One of the drivers is wealthy and has millions in insurance, the other is poor and uninsured.  Why should the remuneration each receives be dependent on the particular traits of the tortfeasor?
Finally, we come to the proposition that we would be better off appointing judges rather than electing them.  First of all, important people worry about important cases.  The rest of us concern ourselves with run of the mill cases that affect the majority of us. Multi-million dollar anti-trust lawsuits are quite irrelevant to the great majority of the public.  So the question of how judges come to be on the bench is of less importance than what kind of judges we have.  Nevertheless, it is important to recognize that all judges are elected, it's just that some have a much smaller constituency.  That elected judges owe favors to those who help get them elected is true, but appointed judges also owe something to those who appointed them.  Generally, those favoring appointment of judges are really looking for judges like themselves.  They assume that they would make correct decisions so that people like themselves will also make correct decisions.  The real question, though, is not how judges are chosen, but what kind of judge we want.  Certainly we want judges who know the law, but Judge Google makes finding answers to legal questions much easier than back when we had to ponder weak and weary among law books dark and dreary.  But there are important other factors that I believe are important in a judge.  Having a working knowledge of informal logical fallacies is important.   To often judges accept as proof ideas that are simply fallacious ab initio. Understanding probabilities and probability theory is also important.  In the OJ Simpson trial, it was said that an overwhelming percentage of men who abused their wives did not murder them.  However, that should not have been the issue, the question should have been, "What percentage of wives who have in fact been murdered were killed by an abusive spouse?"  The answer to that was an overwhelming percentage were.  In "Drunkard's Walk" Mlodonow points out other probability errors by trial and appellate courts.  Knowing a judges biases and predispositions is also important.  Judge Rothwax wrote a book entitled "Guilty."  He was a criminal court judge who quite obviously felt that all defendants were guilty of something, were getting off too lightly and he was going to single-handedly reform the system.  I would not want that judge sitting in judgment of me.  We all have biases and preconceived notions, what is important is that we learn what they are so that we can harness them and make impartial judgments.  Therefore, a psychological analysis would be beneficial not only for the litigants, but for the judge as well. Finally, there are now textbooks, courses and even a Nobel Prize winner in the field of decision making.  It seems to me that judges ought to have studied the process of decision making because their job is to make decision.  To know what factors go into their own decision making, how preconceived ideas, how emotions, the totality of factors that cause decision to be made is essential for judges.  As an example, a study was made of judges, in Israel, who had the power to grant or deny parole.  Those judges who were in a better mood granted parole more often that those in a foul mood.  In other words, if a case was up for parole, the prisoner had to do his utmost to see that the judge had a good breakfast and didn't fight with his wife!  But how do we get the kind of judge we want?  It seems to me that we should forget entirely about selecting judges and concentrate on training them.  In other words, if a lawyer wants to be a judge, he or she should go back to school for an extended period of time, perhaps two years.  In just the same way that a doctor who wants to specialize goes back to school for a number of years and has additional training to become a specialist in, say, brain surgery.  We don't simply select a doctor who has the goodwill of his fellow practitioners and put him in an operating room, so we should not do the same for judges.  Here is the sad fact, judges make decisions in one of four ways:  1.  Determine the facts, determine the law and apply the law to the facts, 2. Determine the facts, play Solomon and try to come up with an equitable solution, 3. Having no time or faith in his own abilities, he looks for the most important lawyer or litigant in the room and that person wins, or 4. The fix is in.  By fix, I don't mean that the judge is taking a bribe, merely that the decision in the case was decided before the case was even filed.  What we want are judges who choose option 1, but they really are few and far between.
We need a different future.  When lives and well-being is at stake, we don't need a haphazard, unpredictable system to lead the way. Perhaps we should have a combined adversarial and inquisitorial system.  Perhaps we should have lawyers who are more interested in truth and justice than in winning.  When the only thing that matters is winning, and that is primarily judged by the amount of money is one's pocket, the system is bleeding.  We currently have an overabundance of trained lawyers, as evidenced by the lawsuits they have filed against their law schools for putting them on the street with no prospect of employment.  These lawyers are an asset.  They should be will versed in evidence gathering and evaluating.  Perhaps then the system could allow judges a more active role in the evaluation of evidence gathered by the lawyers.  The system could also allow for some degree of adversarial advocacy by lawyers.  Of course, I go further in how such a system could work.  Maimonides said that the second highest degree of charity was when the giver did not know the receiver nor did the receiver know the giver.  My corresponding move would be to insure that the judge not know the litigants nor their attorneys.  Of course, under current conditions, in such a scenario, many judges would not know what to do.  My setting could be accomplished either by relocating all judges prior to their tenure, and periodically thereafter, or by the use of that new technology, the internet.  I understand that I may be sounding somewhat like a futurist, by that's what thinking outside the box looks like.