(The following column originally ran in the July 4, 2007 edition of the Moody County Enterprise.)
The
Common Law:
Don't
Fear the Courthouse
By
N. Bob Pesall
Attorney
At Law
Flandreau,
SD
At
least once a week, one of my clients will, almost tearfully, express
that peculiar form of terror which arises only when a person must
appear in court. I see that fear, not only from people facing
judgment, but from witnesses and even potential jurors. “I'm
terrified of being in court,” and “do I really have to go?” are
probably the two most common statements I hear in my office. (“I
think I'm going to hurl” and “how much is this going to cost?”
are tied for a distant third place.) Being in court, whether as a
party, a witness, a juror, or a spectator, was never intended to be a
punishment. It is supposed to be a valued right, like voting or
talking about politics at the bar. But somehow, over the years,
we've lost sight of this.
I
don't think we were always so afraid of our own courts. Not too long
ago, before there were quite as many television channels, a lot of
people would go to the courthouse for entertainment. Trials are open
to the public, after all. Our constitutions require it. Back then,
the courts were a part of our daily lives; we knew what went on, we
watched trials, and we served on juries. Courtrooms were no more
frightening than church on Sunday. The only scary part was facing
our own mistakes.
Then,
things began to change, and we stopped visiting our courthouses. The
court, once our friend and entertainer, became an unfamiliar
stranger. Admittedly, some of these changes were good, but some were
not. For example, in 1966 South Dakota enacted a new set of
procedural rules that dramatically changed how civil cases were
handled. (Civil cases generally involve disagreements between
private parties over things like broken contracts or personal
injuries.) Before these rules came into use, trials were more of a
guessing game. If you had a disagreement with someone, you quietly
collected the best witnesses and evidence you could find. You went
to trial, and you showed them to the court. The other side did the
same, and both sides hoped for the best. This process created a lot
of uncertainty. The new rules gave the parties the right to look at
the each other's evidence, and to interview all the witnesses in
advance. Disclosure became mandatory. By putting all of the
evidence on the table right away, the uncertainty was removed. It
also became much easier for people to settle their disagreements
without actually going to trial. As a result, people saved a lot of
time and money, but there were fewer jury trials.
A
similar change happened on the criminal side of things. One need not
be a lawyer to notice that, in the last hundred years, we have
created a lot of new crimes. Some of these new crimes overlap. Some
of these crimes, such as operating a vehicle with an impermissible
blood alcohol level, also require elaborate scientific evidence
analysis that is hard to conduct and harder to explain. Under these
laws, because the evidence is so tricky, and because there are so
many overlapping charges, the interests of justice are often better
served by negotiating plea agreements instead of taking cases to
trial. This saves the public a lot of time and money. It also
guarantees that someone who may have committed several crimes will
pay the penalty for at least one of them. It also results in fewer
jury trials.
In
addition to the decline in jury trials, there have been a number of
smaller social changes which have pulled people out of the courtroom.
Television, for example, provides us with easy access to
entertainment. We no longer need to trek to the courtroom for a good
show, because we can tune into one in the comfort of our living
rooms. Also, trials are held in the daytime, but most of us now live
in double-income households and work in jobs that do not allow us to
skip out for an afternoon just to watch a trial. We're simply too
busy.
This
lack of time and decline in the number of jury trials has detached
from our courts. This detachment is the source of our fear. We
don't watch the court from the jury box, because cases seldom go to a
jury. We don't watch the court from the courtroom, because we don't
have time, and there is probably something better on television.
When we stopped watching, the courtroom became a big, scary unknown
thing. Since it scares us, we try to avoid it even more.
The
courtroom is the place were the people meet the laws they make. Our
courts decide our fate, and our judges, from the local Circuit to the
South Dakota Supreme Court are our elected officials. If we stop
understanding our courts, we stop understanding how our laws really
work. In the end, we give up control over an entire branch of our
government, and we get nothing in return.
The
solution to this problem is simple, but not easy. We need to stop
being afraid. As citizens of this great State, we owe that much to
ourselves. We should find the time watch our courts in action. If
we are offered the chance to serve on a jury, we should take it. If
we are called to be witnesses, we should come early and leave late.
Our courtrooms are shrines to democracy, not torture chambers.
The
foregoing column is written for informational purposes only, and does
not constitute legal advice. For those desiring more information,
Moody County Court is usually in session and open to the public every
Tuesday at 9:00. N. Bob Pesall can be reached at P.O. Box 23,
Flandreau, SD 57028, by telephone at (605) 573-0274, or on the web at
http://www.pesall.com
