Showing posts with label The Great Resignation. Show all posts
Showing posts with label The Great Resignation. Show all posts

Monday, January 3, 2022

Courthouses of the West: 2021 Reflections. The Legal Edition

Courthouses of the West: 2021 Reflections. The Legal Edition

2021 Reflections. The Legal Edition

This blog has been so slow that a person would be justified in believing its a dead blog.

It isn't, it has COVID 19.

Allow me to explain 

It was already the case that 2019 was an odd year, legal wife, for the journalist here.  The reason for that was that my schedule was such that I did very little traveling.  The last new courthouse (keeping in mind that I don't take photos of courthouses I've already taken, was in Fallon County, Montana.

Fallon County Courthouse, Baker Montana

There's no way on Earth when I took those that I anticipated there wouldn't be any new courthouses appearing later that year.  

And yet there were not.

2020 would have been different, but in late 2019 the news that a new disease was loose in Asia hit.  By January, there were pretty clear signs that something was frightening about it.

January is, of course, Tet, or similar holidays in Asia.  I.e, the Lunar New Year.  It's a big deal and in spite of the imposition of Communism on Asian societies, they still celebrate it.  The Lunar New Year caused Asians to travel all over their own countries and all over the globe.  Easter and Christmas do the same in the West.  The combined impacts of all those holidays sent people moving all over, and the disease was soon global.  Living through it at the time, it seemed to hit Italy first, but who really knows.  

Anyhow, by March things were shutting down.  Trials I had scheduled that summer were cancelled. Courts shuttered their doors.

And Zoom came in.

Now, in January 2022 we're looking at the rapid spread of the Omicron variant of COVID 19.  It's going to close some things somewhere.  It's inevitable.

And even if it's milder, it's effectively the last blow in how the litigators do business.  Things are never going back to the way they were before.

In 2021, I did four trials.  Two of them had some kind of mask mandate in place.  Every courthouse is different.  Depositions have largely gone over to Zoom, and they don't ever appear likely to go back to being live and in person.  Lots of hearing are now by Microsoft Teams.

Ironically, even though I spent a week in a really beautiful courthouse in another state, I'd note, I failed to take a single photograph of it. 

An evolution towards electronic appearances in things was occurring before COVID 19, but the pandemic pushed things over the edge and fully into the electronic world.  I really don't like it, and I don't like what it will likely mean for the law either.  I'm lucky to have principally practiced before it occurred.

2020 and 2021 saw the best and the worst of lawyers in spades, which is something we should note before moving on.  For the worst, lawyers working for the Trump Administration or affiliated with it were full participants in a plot to illegally retain power for the ex President.  It's shameful.  

For the best, most lawyers didn't participate in that or approve of it. The Court system itself really rose to the occasion and kept the coup from working.  Lawyers in at least one state wrote a letter to their Senator, also a lawyer, flatly demanding that the Senator retract the Senator's position in regard to the coup, which the Senator did not do.  It was a brave thing for them to do.

One thing that Trump accomplished that was a real accomplishment (and frankly its Mitch McConnell's accomplishment) was to bring in a set of Supreme Court Justices who actually apply the law as written.

Much of our current problems with huge political polarization stem in fact from the capture of the highest courts by the political left in the mid 20th Century.  The courts of that period were perfectly comfortable with creating new rights out of thin air and foisting them on the public, when the public wouldn't have supported them democratically. That partially lead to a right wing belief that the left was anti-democratic and involved in what some regarded as a slow moving left wing coup.  When one camp drops a belief in democracy, the other will follow sooner or later.

We've finally gotten past the US. Supreme Court acting like a super legislature of Platonic Elders.  It was long overdue.  That's gong to be painful for a few years, but perhaps it helps us get back to where we always should have been.  Big social issues ought to be decided in legislatures, not in courts.

Let's  take a look at the upcoming year and therefore put out a few, a very few, resolutions for the field of law.  Most of these we have little hope of being carried out, which doesn't mean that we shouldn't state them anyway.

1.  End the UBE

The UBE has proven to be a failure.  It's mostly aided the exportation of legal jobs from states with smaller economies and communities to neighboring ones with larger economies and communities, something now aided by electronic practice.  It's made the standard of practice more uniform, by making it more uniformly bad.

The UBE ought to go, or a local state bar reinstated where it exists. For that matter, its time for residency requirements to come back on.

2.  Quite with the bad legal reporting

If you listen to the news, any news, you'll get the impression that the justices of the United States Supreme Court act like a session of World Wide Wrestling every time they meet. That's far from true.

The vast majority of U.S. Supreme Court decisions are heavily one-sided.  I.e., 9 to 0, or 8 to 1 decisions are much more common than 5 to 4.  In the last session, for example, Justice Sotomayor issues and opinion in a criminal case that accused the lower court of ignoring the plain language of a statute. She was writing for the majority.

You never hear stuff like that.

That's mostly because in an average year there's maybe one or two. . . or no, cases that are actually interesting from the Press's prospective.  And those are the ones that tend to be lopsided.  It gives a skewed prospective on the court.

3.  Age matters

I've been saying this for a while, but its disconcerting that the Federal bench has no mandatory retirement age.  

I'm not saying that any Federal judge I've ever encountered seemed impaired. Far from it. But courts belong to the people, and the median age for the people is a lot lower than the upper reaches of the Federal bench. That matters.  

For that matter, I think the state mandatory retirement age for judges ought to be depressed.  It's 70 now, and there was a move in the legislature a few years ago to raise, or remove, it.  I think it ought to be lowered to 65.  Frankly, I'd prefer it being lowered to 60. Again, not because I have a problem with a current judge, but people are younger than that, as a rule.

And at some point this is going to catch up with us.  

This applies, I think, to lawyers as well.  Age takes its toll. Age also narrows us, and we tend to end up our occupations.  Both are bad potentialities.

4.  Wider net

Recently one of the Bar Commissioners noted that a state Supreme Court justice had expressed concern over a lack of applicants for judicial positions.  I'm frankly not surprised that there has been.

Part of this may reflect a disturbing trend in general.  In what most of us thought was the late stage of COVID (it might not have been, as we now know) the press started reporting on the Great Resignation.  Now some are doubting that this is occurring, but at least in the legal field it seems that the Great Hesitation is operating.  I'll post about that in general in one of our companion blogs, but anyone in the legal field anywhere knows that younger lawyers are seemingly just not entering practice right now  I don't know what they're going, frankly  Some that are, are job hopping rapidly.  One judicial law clerk I became somewhat familiar with in another state was on her fourth job as a clerk, and second clerkship, and had only been working for less than two years.

Anyhow, one thing that seems to have gone on for the last few state administrations here is selecting judicial applicants based on certain criteria that were set out, publically or silently, which is fine and makes sense as, after all, it's a political appointment.  That was a change from some prior administrations, however, which took a broader view.  Anyhow, after this being the case for a long time, I think certain private practitioner categories have simply quit applying as it was obvious that they weren't going to be admitted.  

A wider net needs to be cast.

On that, one thing the judicial nomination committee used to be able to do, although I don't know if it still can, was to submit names of its own choosing.  At least one judge in the southeaster part of the state became the judge that way.  He was completely surprised by his own nomination and struggled with it at first as it meant a big reduction in income.  He accepted the position as he felt it was his duty.  If the committee can't do that, it ought to have that power restored and actually use it.

Monday, November 29, 2021

I'm pretty much habituated to working on Saturdays. . .

as I'm busy, but I took Thanksgiving weekend off for a variety of reasons. Also, for a variety of reasons, it's the first time I've had four days off in a row for several years.

I avoided checking my email, which I'm better at doing than other people that I know.  I don't have my email set up to give me automatic alerts, for example.

Cell phones. The worst thing to happen to humankind since. .. well ever.  These are our old cell phones.  I found them in a drawer when I was looking for something the other day.  They're expensive, so you save them, which you probably don't need to do.

So in checking my email this morning, and my calendar, I see that I have emails from lawyers for every day of the four-day weekend, save for maybe Thanksgiving itself.

There's no doubt about it.  Cell phones and computers have become the enemy of sanity.  

I know that some of those folks were simply working on Friday, which isn't a holiday weekend for everyone.  I had intended to but decided not to.  But Saturday and Sunday?

There's a point at which stuff like this has to stop.  I'm glad to see that for the first time, pretty much ever, Walmart and some other big box stores closed on Thanksgiving itself and will close on Christmas.  Some restaurants were open, however. Grocery stores were as well.  Friday, of course, was "Black Friday", which I've worked many times myself, and Saturday was "Small Business Saturday".

We're reading, of course, about inflation ramping up, which the administration seems to have no handle on whatsoever.  The weekend shows had Democrats on explaining how the "Build Back Better" bill won't contribute to it, which is baloney.  If anything starts to depress it, it'll be the arrival of the Omicron variant of COVID-19, which isn't good.

Really building back better would take a fundamental look at which what we've built, which is a 24 hour a day, seven day a week, cubicle economy, and dismantling big chunks of it.  Right now workers are voting for that with their feet.  

Maybe some pondering on that is in order.

Thursday, November 25, 2021

2021 Thanksgiving Reflections

So started off the Thanksgiving Day post last year.   The one that was entitled:


The comment about hubris is exactly correct.  Lots of bloggers put up posts like this, but frankly, there's no guaranty that anyone reads them or cares what you have to say about anything.

Moreover, this blog has zillions of posts as it often has more than one daily.  Indeed, that's the case for today.  There are a lot of Thanksgiving posts up for November 25, 2021.  People might wonder how much time is actually devoted to this blog (not much), as that would be misleading.  I should invest the small amount of time that goes into this into my slow moving novel, as it would read like War And Peace by now.

Well, anyhow, I wasn't particularly inclined to do this post this year, but given as there was one for the exceedingly odd year of 2020, and 2021 turned out to be a followup to it in oddness, I thought I would.  Which leads me to this.  

So much of what I wrote last year is even more the case now, that I was tempted to repeat a pile of it.  As repeating an essay in its entirety just burdens the reader, who probably doesn't read it, I'm going to forego it, however.



It was already the case, of course, that Donald Trump had lost the 2020 Presidential Election. It wasn't clear to me, however, the extent to which he'd go on to full deny losing it, and the extent to which a large section of the American public would buy into that.  Indeed, I was shocked just a month later when I heard for the first time somebody that I knew really well express the stolen election line.  Just a little over a month following Thanksgiving the former Presidents acolytes would attempt to put him back in power while a full scale attempt at a coup was being engaged in by the former President's political minions and operatives.  It failed, but only barely so.

Had it succeeded, I don't know that it would have succeeded, as odd as that may seem to state.  The majority of Americans, and it was a majority for a second time, who voted against Donald Trump would not have accepted him as President, and it would have gone right to the United States Supreme Court.  Predicting the Court is always difficult, but its first instinct is self-preservation, and I think it would have struck the effort down.

I also think there would have been violence, and I think that American democracy would have been damaged for generations.  I'm not entirely certain that had the Supreme Court not have declared Trump's election invalid, that there wouldn't have been a violent removal.  Advocates of force to cause something to occur frequently forget that the invitation of force often causes, in the human world, a greater, opposite, reaction.  

We can all be thankful, therefore, that this scenario did not play out.

We can be worried, however, about what may develop going forward.

The US is now already on the list of countries, according to an international group, that has been backsliding on democracy as there's a large section of the Republican Party that actually believes what Trump has been saying. Trump remains the head of the GOP and will run again, assuming that his advanced old age doesn't catch up with him first. And also assuming that due process of law does not.

That's an open question.  Mitch McConnell made it clear, during Trump's impeachment proceedings, that he was guilty of sedition.  He hasn't been charged.  It's not impossible that he shall not be.  If he is, and I'd lay even money on it, that will create its own firestorm, reminding us once again why it is important to strike while the iron is hot, something that our society, led by it is by the ancient, increasingly has a very difficult time doing.

It might prove to be necessary, however, for this to occur in order for the Republican Party to overcome the direction it seems to be headed.  Elements of it clearly want to.

Part of where it's headed in Wyoming is a dedicated effort to eject a Congressman whom conservatives loved prior to her deciding to stand her ground on principals.  It's shocking. We don't know where this is headed yet, but there's reason to believe it will fail, and a reckoning may be coming inside the state itself.

Anyhow, as Americans head towards their Thanksgiving Day meals, there's less reason to be calm about the fate of the nation than there has been at any point since the Civil War.  But there's some hope that we've started to very slowly round a corner.

And that's not all.  Last year at this time COVID 19 vaccinations had not started.  Now over half the eligible population in the country has been vaccinated, and the vaccines now extend down to childhood ages.  There's real hope that the Pandemic may be beat, but there's still a bizarre politicization of the virus that continues to haunt the nation.  And that's certainly something to be thankful for.

As part of this, this past week a person I knew, but I can't really say that I was friends with, died of COVID 19.

I haven't asked the details, but I was shocked as I was aware that the person passing was younger than I.  I was somewhat surprised to learn that the person wasn't that much younger, 54 years of age, as I would have guessed it was a decade or so.

I didn't ask the details, but I know that the person was almost surely not vaccinated, and I know why.  That makes this a death that surely could have been avoided.

At one time I wondered, along with people like Fr. Dwight Longnecker, if the Pandemic would cause a big reassessment of some things.  I still wonder that, although I'm less hopeful about that than I had been.  Some reassessment is going on, however, as the press has been reporting that the country is in the midst of the Great Resignation, an event reflecting people walking off from their jobs, post COVID lockdowns, and refusing to return to them.  While people are worried about that, I'm hopeful, even though it's hoping against hope, that this reflects a reconsideration of the Industrial economy we've bought off on for so long, and maybe a bit of a wandering back to a Chestertonesque one.

Closer to home, I suppose, it's been a very odd year and perhaps one of turmoil.  As I've noted elsewhere, I never did stay at home during the pandemic, but I was often the only one at work.  As part of that, during part of that time frame my two college age kids were back home, confined to Zoom U.  This past semester that has not been true, so my wife and I, who went from empty nesters to full housers went back to empty nesters.  It was somewhat disorienting. 

Also disorienting was watching the law evolve during the time period. Zoom came in and like the detective in Brecht's Maßnehmen Gegen Die Macht, it's grown fat and won't leave.  Doing in person depositions now is almost a thing of the past, it seems, although some older lawyers, such as myself, are bucking the trend.  Some younger ones basically don't leave their houses anymore.  The legal world is in transition and, at age 58, I don't like that.

Something that I also don't really quite like is the realization that I'm past the point where there's any point in my pondering the judiciary, which I used to do.  Oddly, I saw a comment from a figure associated with the judicial appointments expressing concern the other day about the lack of applicants.  Part of that is that those like myself, of which there were quite a few, who had lots of experience in the civil law were basically not welcome as applicants, so we quit applying.  In the meantime it seems that most younger lawyers have decided to eschew the courtroom.  Indeed, I received comments from a lawyer I tried a case against about being baffled on being in the process as it just doesn't happen much.  It still happens for me, however, and more than once last year.  I'm feeling like Crazy Horse, in being an acknowledged anachronism, fighting on.

As that anachronism, this past year I've worked heavily and that keeps up.  This Fall has been the worst hunting season, a season I highly value, since I was a law student.  I just haven't been getting out, and keeping up at work is why, or so I believe.

This past year something that's been a shock to see is the friends of my children all getting married, which means that my children are of that age.  Indeed, they both have fairly long term girlfriends/boyfriends at this point, all of which causes some angst for a parent.  All I'm really concerned about, at the end of the day, is metaphysical final destinations, and I think it's easy to get diverted on that trip.  Life offers a lot of stopping off points and compromises, some of which can be hard to get back on the train from.

In the meantime, however, that train and the changes to the scenery it brings roll on, and that can be a shock for those watching the passengers.  2022, just coming up, promises big changes here in the smaller nest.

Well, perhaps it's time to set all these things aside.  We're a year past an insurrection, and there's some hope that we may be putting it behind us. We're well into a final cycle of vaccinations, and there's hope that the Pandemic may be starting to get behind us. And its clear we're rethinking a lot of things as a society.  

All of that is something to be thankful for.   And perhaps more pacific pastures are on the horizon, even if there are a lot of breaks to struggle through to get to them.