How justice gets lost on the bench and what we can do about it
By Dan Lawton ,
Tuesday, June 16, 2009

A great trial lawyer I admire, Steve Swinton, told me about the “bartender test.” The test measures the common sense of a lawyer’s argument in a given case. The test requires you to explain your case to a disinterested bartender in five minutes or less. If the bartender understands and accepts it, your case has common sense and even justice. If the bartender says, “That’s bullshit,” then your argument lacks common sense and justice.
Caperton v. A.T. Massey Coal Co. (the subject of the U.S. Supreme Court’s decision of June 8, 2009) is an apt case for the bartender test. Hugh Caperton, a landowner in West Virginia, sued a coal company (Massey) for defrauding and ruining him. The jury awarded Caperton $50 million.
Massey appealed. Its appeal coincided with West Virginia’s judicial election in 2004. This neat coincidence did not escape the attention of Massey’s CEO. He donated $3 million (cleverly laundered through an organization he named “And for the Sake of the Kids”) to the campaign of one Brent Benjamin. Benjamin was a man who sought a seat on the appellate court. The $3 million dwarfed the monies spent by all other Benjamin supporters and even the amount spent by Benjamin’s own campaign committee.
Brent Benjamin won the election and took his seat on the appellate court.
If you’re reading this, you’re probably a lawyer, so you know where this is going. The appellate court reversed Caperton’s judgment. The man who cast the deciding vote in a 3-2 decision? Justice Benjamin (an oxymoron if ever there was one). One dissenter wrote that the majority’s decision was “morally and legally wrong.” The second dissenter complained the majority had invented sweeping new law.
Before the reversal, Caperton did what you would have done. He moved to disqualify Benjamin. Benjamin said no. Later, Benjamin again cast the deciding vote in denying Caperton’s petition for rehearing. The coup de grace: Benjamin’s concurring opinion (not filed until months after Caperton filed a cert petition with the U.S. Supreme Court) pronouncing himself free of any “direct, personal, substantial, pecuniary interest in this case.” What Benjamin was thinking seems incomprehensible to anyone, lawyer or otherwise, in terms of common sense or justice. What his bartender or own mother might have told him about it seems easier to understand.
Massey, however, cared not for common sense or justice. Massey cared about winning. At the Supreme Court, Massey swayed four Justices to its view that no reversible error attended Justice Benjamin’s arrogant blindness (and possible corruption). Happily, the five other Justices saw things Caperton’s way. They reversed, holding that the West Virginia court had violated Caperton’s due process rights. A 5-4 decision — a close call. That it was that close seems a joke in itself.
Over seven years after Massey ruined him, Caperton is still waiting for justice from the state and federal judiciaries. One wonders if he will get it before he dies or goes more broke than he is already.
It is a given that most of our judges are terrific in every way — qualified, fair, interested in justice as well as law. But the Caperton case nevertheless illustrates a sad reality about judges. And that is that some judges have become so removed from the real world, their senses of justice and common sense have become dulled — not from misuse, but from disuse. Justice matters little (or not) to some of them.
If you want proof, look right and left. One California Court of Appeal Justice has announced publicly that she is not there to do justice, but instead only to follow (and shape) the law. Her court’s Web site is emblazoned with the motto, “Striving for Justice,” but nevermind. The words carved into the façade of the Supreme Court building itself are “Equal Justice Under Law,” but nevermind. Indeed, one of that building’s admired occupants wrote: “I hate justice, which means that I know if a man begins to talk about that, for one reason or another he is shirking thinking in legal terms.” The author was Oliver Wendell Holmes, Jr.
Is hatred of justice a quality to be admired in a judge? I say no, but there it is for all to see. Judges are steeped in the law and should be. But too much steeping dissolves justice until it disappears. Justice gets lost sometimes, and judges are the ones who lose it. Why should we care? Because it kills public trust in the system in which we have so much invested.
What above all else is eroding public confidence in the nation’s judicial system is the perception that litigation is just a game, that the party with the most resourceful lawyer can play it to win, that our seemingly interminable legal proceedings are wonderfully self-perpetuating but incapable of delivering real-world justice.
Nor is Justice Scalia’s observation original. Almost 100 years ago, another man wrote this: “Judges march at times to pitiless conclusions under the prod of a remorseless logic which is supposed to leave them no alternative. They deplore the sacrificial rite. They perform it, nonetheless, with averted gaze, convinced as they plunge the knife that they obey the bidding of their office. The victim is offered up to the gods of jurisprudence on the altar of regularity.” Like Scalia, he too was a judge. Benjamin N. Cardozo, “The Growth of the Law” (1924).
We should care about judicial disinterest in justice at least as much as Scalia and Cardozo. The answer lies partly with the judges themselves. They could step outside the antiseptic bubbles some of them inhabit. Inns of Court and bench-bar activities exist, but many judges ignore them. They could start showing up. Also: Lawyers endure seminar after seminar put on by judges pontificating to lawyers about what they (the judges) expect from lawyers. How about a seminar for an audience of judges, put on by lawyer panelists? Politicians go on “listening tours” to hear what is on the minds of those they serve. There is no good reason judges can’t do the same.
As for vacancies, our elected representatives should stop ignoring the inadequacy of judicial pay. Federal judges’ lagging pay costs us qualified candidates who make too much money in private practice to take the pay cut a federal judicial appointment would require. (Barbara Caulfield is a good example.) A lot Congress cares; advocating judicial raises won’t win you any votes in your next election, especially in today’s recession. Yet it is the right thing to do. Finally: executives should never overlook candidates whose resumes include significant achievements in private practice. (Alex McDonald — in private practice his entire career before his appointment to the Court of Appeal — is a fine example. Sonia Sotomayor practiced in the private bar for eight years.) Frankly, such lawyers understand the real world better than lawyers who have spent most of their careers in government or the academy. And the real world is where justice lives.
The real world also is where Caperton must live while the bizarre injustice inflicted on him by Brent Benjamin continues to unfold in slow motion. It is sad that it took the Supreme Court to teach Brent Benjamin what Benjamin Cardozo was talking about 90 years ago when he wrote: “We are not to close our eyes as judges to what we must perceive as men.” Benjamin N. Cardozo, People v. Knapp, 230 N.Y. 48, 63 (1920).


Lawton is a trial and appellate lawyer. He practices in the federal and state courts, mostly in San Diego.