Justice Delayed

This is the tenth in a series on The Harvard Classics; the rest of the posts are available here. Volume X: Wealth of Nations

A popular measure of the quality of an individual judge or an entire court system is the speed with which cases are disposed. Where accused criminals must wait in jail for extended periods before their cases are tried, or where civil litigants cannot get finality on their claims in a timely manner, there is a problem. In the words of William Penn, “to delay Justice is Injustice.” And “delays have been more injurious than direct Injustice.”

Adam Smith, in his Wealth of Nations, even recommended a system whereby judges would be paid only at the conclusion of each case. “By not being paid to the judges till the process was determined, [the judges’ fees] might be some incitement to the diligence of the court in examining and deciding it.”

But there is more to an efficient judiciary than disposition rate. At the extreme, a judge could summarily convict every accused without taking the time to consider the evidence. That would be a very timely method, but not a just one.

To be sure, courts should be accessible and efficient and speedy in their distribution of justice. But to judge a court entirely, or even primarily, on its disposition rate is to miss the mark. Some cases require a long, deliberate consideration. Other cases benefit from the parties having ample time to develop their theories and evidence, and to explore a negotiated resolution. Justice delayed is justice denied, but justice rushed is no justice either.

Beer of the week: Home Grown American Lager – This is a tasty brew from Victory Brewing Company in Pennsylvania. It is brewed with six varieties of hops, and they impart plenty of juicy flavor. This pours pale and cloudy lager is quite nice.

Reading of the week: Wealth of Nations by Adam Smith – Wealth of Nations is best known as a glowing recommendation of free markets. But this excerpt discusses a couple of services that, Smith argues, must be provided by the sovereign rather than the market: national defense and courts of justice.

Question of the week: Smith goes on to point out that when attorneys are paid by the page for their legal writing, they tend to “have contrived to multiply words beyond all necessity, to the corruption of the law language.” What is the best method for determining attorney’s fees?

2 Comments on “Justice Delayed”

  1. angel_kaye says:

    Response to your question: Well, you really have two different questions going on here that you need to distinguish. If we’re talking about attorneys’ fees in Adam Smith’s time, there’s the relation of sub-culture (literary) where authors, at least (if not attorneys) WERE paid by the word, so that was a particular moment-in-culture that is not relatable to today’s situation. But if we’re talking purely about the modern attorney, they are paid by time put in, and their valuation is based purely upon what a customer feels is worth the service being given. The latter seems much more subjective than the former, and I’m not sure there is a readily-available formula (for what comes easy to some might require rigorous effort by others).

  2. The question that I meant to ask was “What is the best method for determining attorney fees *today*?” By-the-word charges make less sense now than ever, especially because of the ability to cut and paste.

    I suspect that there is no “best” method. Contingent fees (where the attorneys get a fixed percentage of any money recovered) have the advantage of making it possible for poor plaintiffs to sue without first having to scratch together the cash needed to hire an attorney. But that’s not an option for criminal defendants, or for cases where the desired outcome is not a money judgment (such as a custody case.) The standard tends to be hourly, but flat-rate billing for routine legal work seems more transparent and fair.

    I’m glad that I don’t run a business, I’d have a hell of a time figuring out what to charge people.

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