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<xTITLE>In Praise of a Trial</xTITLE>

In Praise of a Trial

by John Lande
August 2018

Indisputably

John Lande

The trial of Paul Manafort, which began on 7/31/18, is a good illustration of an important value of trials.

A decade ago, there was a flurry of academic activity following the publication of Prof. Marc Galanter’s detailed 2004 study entitled, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, which documented declining trial rates in recent decades.

Some of the discussion questioned whether ADR was to blame for declining trial rates.

I thought that this blaming framing in some commentary was problematic because it implied that the reduction of the trial rate necessarily was a bad thing and that ADR was the likely culprit in the crime.  (Marc’s article provided a responsible perspective about this and discounted the idea that the declining trial rates were caused by ADR.)

Everyone agrees that some but not all cases should be tried.  In this article, I wrote

There should be no doubt that having trials produces considerable social benefit.  As a policy matter, however, the question is not whether to have trials.  Rather, policy issues focus on such matters as whether to have more or fewer trials, what kinds of cases and litigants should get to trial, who should make those decisions, how to design litigation and trial procedures to maximize the benefits and minimize the problems, etc.

I considered various functions that trials can perform and I noted that they sometimes perform the invaluable function of publicizing important facts.

Trials certainly can perform important social functions of publicizing facts, developing common law rules and precedents, and producing judgments that promote institutional transformation.  Galanter writes, “[t]he trial is a site of ‘deep accountability’ where facts are exposed and responsibility assessed, a place where the ordinary politics of personal interaction are suspended, the fictions that shield us from embarrassment and moral judgment are stripped away.”  Trials also can satisfy the public interest in providing opportunities for checks on government power, catharsis in dealing with events of public significance, and demonstration that the system of justice works.

This is precisely the potential of the Manafort trials.

The Manafort Trials

Ms. Sharon LaFraniere and Ms. Emily Baumgaertner of the New York Times provided a very useful preview of the trial which is about to begin as well as the trial against Manafort scheduled for September.

The wide range of issues encompassed by the Mueller investigation certainly are of the highest public importance and it’s particularly appropriate for the Manafort trials to provide the kind of public education and accountability that Marc describes.

Prosecutors have disclosed some information in court filings and made plea bargains with some defendants, but these actions do not produce the public education or accountability that occurs in a full public trial.  Indeed, Mr. Manafort could plead guilty before the trial begins.  While that may be appropriate from the prosecution’s perspective, it would deprive people of the benefits of a public trial.

In general, criminal prosecutions should focus primarily on prosecution of alleged crimes.  While publicizing important facts is an important by-product of criminal trials, there are other institutions whose top priorities should be to conduct public investigations of serious wrongdoing for the purpose of public education.

First among them should be Congress.  Under our system of checks and balances, Congress has a critical role in investigating major public issues.  For example, the Watergate and Iran-Contra hearings educated the public about these scandals.  Unfortunately, sometimes Congress abuses its authority and conducts partisan witch-hunts as in the McCarthy and Benghazi hearings.

Unfortunately, Congress has been unwilling to perform this vital public education function.  It has held few or no public hearings explaining what happened.  Moreover, the majority of the House Intelligence Committee actually disseminated false information, as evidenced by the recent release of a FISA warrant.

Educating people about matters of public importance is the highest priority of the news media.  The mainstream media generally have been doing an impressive job of investigating and reporting important facts related to the Mueller investigation.

So far, however, the reporting has been hobbled because many of the key facts have not been publicly disclosed due to pending or potential legal proceedings.  So we know only bits and pieces of information that have been leaked out, presumably released for strategic reasons.  Unfortunately, the media environment has been polluted by domestic and international propaganda campaigns.  So we don’t have a fair and accurate understanding of the facts.

The Manafort trials should provide a first real opportunity to get a thorough public airing of important issues in the Mueller investigation.  Under our adversary system, both the prosecution and defense will present their evidence and interpretations of the facts.  Whatever the outcome, the public will benefit by getting a more complete understanding of some of the issues that Mr. Mueller is investigating.

If the Democrats win control of at least one house of Congress in the upcoming elections, presumably they will conduct more thorough public investigations next year.  However, if the Republicans maintain control of Congress, we will especially need to rely on trials in the Mueller investigation to serve this critically important public interest.

Biography


John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California. He was a fellow at the Program on Negotiation at Harvard Law School and the Director of the Mediation Program at the University of Arkansas at Little Rock Law School. His work focuses on various aspects of dispute systems design, including publications analyzing how lawyering and mediation practices transform each other, business lawyers’ and executives’ opinions about litigation and ADR, designing court-connected mediation programs, improving the quality of mediation practice, the “vanishing trial,” and planned early negotiation.   The International Institute for Conflict Prevention and Resolution gave him its award for best professional article for Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007). The ABA recently published his book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money.  His website, where you can download his publications, is http://www.law.missouri.edu/lande.



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