The Joplin Globe, Joplin, MO

April 28, 2012

Bruce Secrist, guest columnist: It’s not perfect, but Missouri Plan makes sense

By Bruce Secrist

— After reading Rep. Bill White’s recent editorial, “Missourians deserve to vote on judicial selection,” (The Globe, April 8) I was left to wonder if his motivation is truly the pursuit of fairness for all Missourians or simply an effort to see specific kinds of decisions from our courts.

He concludes that the Missouri Plan just does not make sense. He will be glad to hear that the Missouri Plan was originally adopted in Missouri by a vote of the people in order to keep money and various political machines from dominating the election of judges, and to assist with the backlog of cases caused by judges out on the campaign trail. This merit system of electing judges has been adopted by well over 30 other states. The Appellate Judicial Commission is composed of an equal number of lawyers and private citizens in an attempt to keep the process from being dominated by any one group, including trial attorneys.

By the way, White’s concern about trial attorneys caused me to reflect. Am I a trial attorney? You know that trial attorneys have been blamed for everything from doctors quitting the practice of medicine to global warming. I’m not sure what qualifies an attorney as a “trial attorney.” Nearly every private practice attorney I know has represented a client in a trial. I guess by definition we are all trial attorneys. Over my 29 years of practicing law, I have also filed many lawsuits. Trial attorneys convicted Charles Manson and overturned years of discrimination because of the color of one’s skin in Brown v. Topeka Board of Education. I could have no prouder professional accomplishment than to qualify as a “trial attorney.”

Having said that, do I vouch for everything every trial attorney has ever done or litigated? Nope. Just like I do not approve of everything every politician, doctor, football coach or priest ever did.

According to White, who lives in Joplin, Missouri’s appellate judicial system is not working, and the Missouri Plan makes no sense. Keep in mind that the Missouri Plan is a system voted on by the people of Missouri as the best way to keep politics and campaigns out of the court system. Not the perfect way, but the best way. Our Founding Fathers were also fine with the idea of having federal judges appointed by the executive branch rather than subjecting them to politic al campaigning and influence from big donors.

Based upon rankings by the American Tort Reform Association and the U.S. Chamber of Commerce, White comes to the conclusion that clearly, something is wrong with Missouri’s appellate court system. Really? That’s akin to quoting Rush Limbaugh to support your position that Obama is a bad president. Do you really expect a non-agenda driven analysis?

The U.S. Chamber of Commerce rates the Missouri court system poorly. The state of Louisiana pushed back when they received a poor rating. The Louisiana Supreme Court appointed a committee to investigate the ranking. Since there are so few such rankings (because of the difficulty in objectively ranking such things), The U.S. Chamber of Commerce ranking carries some weight. Louisiana found that the chamber’s rankings are generated by surveying attorneys, litigators and employees all working for corporations worth $100 million or more. Their opinions were included whether they were “very familiar” or even only “somewhat familiar” with that particular state’s system. Also, the chamber’s ranking was for the entire state system and not just the appellate court system. I wonder what influences the opinions of those $100 million corporate employees who completed surveys for the chamber. The chamber is a great organization, but all organizations have agendas. The chamber itself says its rankings are based on how corporate attorneys view the system. A recent Cornell University study discredits the chamber’s rankings because of its failure to consider the input of parties on both sides of disputes.

And as for the American Tort Reform Association, the name pretty much says it all. Their goal is to reform the tort system. The members are largely medical associations (remember, all organizations have agendas) and their rankings are based upon whether a particular court system is reforming pursuant to their goals of reform. It has very little, if anything, to do with a court system’s competence, productivity, independence or influence (how often other states cite their decisions.)

Recently, in San Antonio, an attorney acted inappropriately in a case that was being prosecuted. The ATRA purchased a billboard next to the court house on which they printed an inappropriate quote from this attorney and attributed it to “A Still-Practicing Local Attorney.” The effect was to smear everyone in the legal community. I’m sure they are much more objective and “fair” when they rank court systems.

White opines that only when Missourians can vote on who will serve in our appellate court will our system be fixed. Evidently the chamber does not share that conclusion. The chamber rates Louisiana poorly (49 out of 50) even though they elect their appellate judges by vote of the people, and the Delaware court system is rated number one even though they have a selection process without a popular vote.

The citizens of Jasper County can be proud of their local and appellate court system regardless of the opinions of ATRA or the U.S. Chamber of Commerce. Any good “trial attorney” will tell you that there are three sides to most cases: yours, theirs and the truth. I urge our elected representatives to fairly give their constituents all of the facts, not just the cherry-picked ones. Both sides of any issue need to be “fairly” considered. After all, fairness is really what we are all after. Right ATRA? Right U.S. Chamber?

Bruce Secrist is a Joplin attorney.