Over time, lawyering has only grown more specialized; our courts remain committed to a generalist, jack-of-all-trades approach. Should it remain so? No, argues one longtime central Minnesota attorney: Progress ought to mean more specialization on the bench, too.
“The history of learning amounts to a history of specialization.”
– Beryl Smalley, Historians In The Middle Ages
After practicing law in Minnesota for 35 years, I have concluded that our state courts would do a much better job if judges specialized like lawyers do. What I propose is twofold: that our state district courts and our court of appeals be split into civil and criminal divisions; and that our court of appeals be gradually transformed into a group of judges with legal problem-solving expertise similar to the medical problem-solving expertise of the Mayo Clinic.
There are at least three distinct advantages to be gained through more specialization by judges:
- We would make being a judge more appealing to more lawyers.
- We would increase the level of confidence that lawyers have in the court system, because lawyers believe in legal specialization.
- We would increase efficiency—which, over time, ought to save money.
Who am I to Judge our Judges?
When I was growing up, there were no lawyers in my family. My father only had a high school education. My mother had a two-year college diploma until she went back to college when I was a sophomore in high school, earning her four-year degree to be a school teacher. For the first 12 years of my life there were no lawyers in the town where my family lived—Prosper, North Dakota, population 29. (And no, the town didn’t get a lawyer then; my family moved to a much larger town—Moorhead, Minnesota.) I went to college right after high school and I went to law school right after college.
I was sworn in as a Minnesota lawyer on April 20, 1979; at that time I was 24 years old. From the summer of 1979 to the summer of 1980 I clerked for a Minnesota district court judge. Then I spent 17 years doing mostly civil defense work for a law firm. Since then, and for over 17 years now, I have done mostly plaintiffs’ civil work, first with another lawyer for a year and a half and then mostly as a sole practitioner, though I have associated with other lawyers and law firms on many occasions. I now do a lot of contract work for a plaintiffs’ personal injury law firm.
I have tried over 100 cases to a jury verdict, mostly as a civil defense lawyer. I have briefed and argued over 50 cases to the Minnesota Court of Appeals and six or seven cases to the Minnesota Supreme Court, again mostly as a civil defense lawyer. Many years ago, as a young lawyer, I worked on two or three marriage dissolution cases, and I remember one court trial involving a misdemeanor criminal charge, and I did a brief stint as a bankruptcy trustee. Other than that, my work has mostly been in civil cases involving negligence and other tort issues and in insurance coverage disputes.
My legal worldview, then, is largely from the perspective of civil cases, mostly civil tort cases. I tried a couple of cases in federal court, and I briefed and argued a couple of cases before the 8th Circuit Court of Appeals, but most of my work has been in Minnesota state courts.
I freely admit that I am only vaguely aware of what the state court system does apart from the civil cases I have worked on. I think it was about 10 years ago when one of the St. Cloud judges told me that being a judge was “90 percent social work.” More recently, another St. Cloud judge told me he estimates that about 5 percent of his work is civil, including collections; 12 percent juvenile; 10 percent child protection; 15 percent divorce and “the balance” (almost 60 percent) criminal.
It seems a type of heresy for a lawyer to publicly suggest that our legal system currently does not work as well as it should. In writing this I considered citing a few of the cases I have worked on that were, in my humble opinion, decided wrongly by the courts. But every loser in a disputed court case complains that the court erred. I will still refer, in passing, to a few cases I have worked on, though only in the context of sharing some “aha” moments that I have experienced, occasions when it struck me that the court system ought to be different.
“Aha” number 1: Almost 30 years ago, as MSBA president, Richard L. “Dick” Pemberton of Fergus Falls asked in his final President’s Page column whether lawyers and judges ought to be concerned about the fact that lawyers were moving more and more toward specialization while judges were required to be generalists.
“Aha” number 2: About five years ago I was arguing a tort case in front of a court of appeals three-judge panel when, after a few questions from the judges, I thought, “Oh my god, these people don’t understand tort law!” Why is it that there are some court of appeals judges that know a lot about tort law, but if you appeal a tort case you might not have any of them assigned to it? I think it’s because when the court of appeals was formed, our only previous appellate experience was with the Supreme Court, and we created the court of appeals in the Supreme Court’s image.
But we’re repeatedly advised that the court of appeals is not like the Supreme Court; the Court of Appeals is an “error-correcting court.” So why don’t we make it a great “error-correcting court”?
If we hired a big law firm to resolve disputes—to serve as an error-correcting appellate court—would they hire a bunch of nice, smart lawyers haphazardly, without regard to their expertise? And once hired, would those lawyers be pooled and assigned cases without regard to their expertise?
If the Mayo Clinic was run like our court of appeals, they’d have one big department. They’d sometimes assign a cardiologist to do a hip replacement surgery. After all, cardiologists are smart people; a few may even have watched or participated in a hip replacement surgery in medical school and probably could follow a You Tube video and figure out how to do the hip replacement. But isn’t there a better way to do things?
“Aha” number 3: On several occasions I have waited in district court for a motion hearing in a civil case and watched the judge hear a variety of totally unrelated cases—a civil commitment, a marriage dissolution, a criminal sentencing, a default collection, and so forth. Granted, several judges have told me that a lot of what they do is “routine,” easily accomplished by someone who has had training to be a lawyer. But most of the stuff I have in court is not “routine,” especially if it is assigned to a judge whose lawyer background was in criminal law. And it is very disconcerting to have a complicated civil law issue put in front of someone who seems too busy with “routine” stuff and has no significant experience in complicated civil law issues.
In the 2002 movie Catch Me If You Can, Leonardo DiCaprio played con man Frank Abagnale, Jr. After seeing the movie, I also read a couple of articles about Abagnale. I was particularly struck by his explanation of how he managed to fake being a physician. He worked in a hospital, supervising resident physicians. When a medical issue presented itself, Abagnale would ask at least two of the residents what they thought should be done. Often the residents would agree; if they didn’t, Abagnale simply had to pick one of the two approaches to follow.
My sense is that, particularly with complicated civil law issues, we often have the issue decided by Judge Abagnale. I do not mean to insult those judges who take the time, and have the ability, to really understand a complex civil issue before deciding it. But my experience is that some judges, especially those whose background is in criminal law, do not understand complex civil law issues.
“Aha” number 4: About 10 years ago when I was looking to do “something different,” several people suggested that I would be a good judge. I applied for a district court judgeship on several occasions and was a finalist three times.
The first hurdle for a lawyer interested in becoming a judge is to get past the notion, ingrained in us as modern lawyers, that it’s wrong for a lawyer to attempt to work on a wide variety of legal issues. The second hurdle, related to the first, is the notion of changing from some level of specialization in law practice to becoming a generalist as a judge.
Several judges told me that a lot of what I would be doing as a judge would be “routine,” easily and quickly learned, especially in criminal law matters. Even if that’s so, however, I think the lack of specialization for judges is something that makes being a judge unappealing to a lot of good lawyers.
I would much rather have my plaintiff’s tort case in front of a judge who practiced tort law as a defense lawyer than in front of a judge whose legal background was as a prosecutor or a criminal law defense lawyer. I still firmly believe that Minnesota district court judges are good people who try to do the right thing. But judges who did civil defense work as lawyers have a better understanding of difficult tort concepts than judges who, as lawyers, did mostly criminal law work.
I realize that many lawyers and judges will dispute the notion that some district court judges currently don’t do well in tort cases. But because lawyers believe in specialization, most of us perceive that judges not specializing either make mistakes or work inefficiently.
“Aha” number 5: Not long ago I was doing research and came across an appellate case decided by the Tennessee Court of Criminal Appeals. I had probably heard of this court before, but I saw it in a new light now that I have been working on this article about judicial specialization. Tennessee has a Court of Criminal Appeals. Minnesota doesn’t.
“Aha” number 6: A few months ago I was looking at the Comments section of CIVJIG 27.10 (Fourth Edition, 1999; page 180). The authors noted that
“Direct cause” has been selected rather than “proximate cause.” “Proximate” is a term that may be meaningful to lawyers because of familiarity with the concept, but it is not so understood by jurors.
I thought to myself, “Ditto ‘negligence.’”
My late friend Mike Ford used to like to say, “When you’re up to your ass in alligators, it’s hard to remember that your initial objective was to drain the swamp.” I think our judges would be better able to evolve legal principles (like “proximate cause” and “negligence”) if they specialized.
We should change our courts to make serving as judges more appealing to more lawyers. We can do that by making being a judge more like being a lawyer. Both lawyers and judges are in the business of solving problems. But modern lawyers believe that solving problems well, and solving them efficiently, is best done by limiting the types of problems that you tackle. Courts need to limit the types of problems that judges tackle.
One challenge will occur in rural Minnesota counties that have few judges. Some will argue that it is impractical for judges in those counties to specialize. But what comes to mind for me is that when I started practicing, our 7th Judicial District had 10 counties and four district court judges. Each district court judge did the district court work for 2.5 counties. Thanks to the internet and video technology, it would actually be easier today to have four judges do a certain type of legal work for 2.5 rural Minnesota counties.
When the Supreme Court reviews decisions from the court of appeals, the Supreme Court often notes that it reviews legal issues de novo. I understand why this is, and I don’t see it as changing. But might our Supreme Court view a tort case differently if that tort case had been decided by two or three court of appeals judges recognized as specialists in tort law? Might the parties to the case be less likely to seek review by the Supreme Court if the case has been decided by specialists at the court of appeals?
The overall goals of the court reforms I’m talking about should be to  make being a judge more appealing to more lawyers;  increase the level of confidence that lawyers have in the court system because lawyers believe in legal specialization; and  increase efficiency—which in turn ought to save money over time.
Kevin Carpenter practices law in St. Cloud, Minnesota.