THEIR VIEW: Judicial system changes should be deliberate, fact-based

By The West Virginia Record | Dec 23, 2009


CHARLESTON -- While a young litigator, I had the opportunity to "carry the bag" of E. Glenn Robinson, a founding member of my former firm, Robinson & McElwee.

For me, it was an opportunity to learn from a master litigator who was then scaling down his practice. Glenn instilled in those around him a deep respect for the rule of law, a dedication to facts as the basis of proof, a healthy skepticism for positions founded on rhetoric and supposition rather than facts, and the need to act with reasoned deliberation in making important decisions.

One of Glenn's favorite teaching points about establishing facts as the basis of proof was that "a fact is not a fact until it is a fact." I've found that Glenn's insistence on having a provable factual foundation from which to advance a position is equally important to other endeavors outside the practice of law.

In nearly every year since I began the practice of law, I've heard calls for "judicial reform" in West Virginia. Discussions about "judicial reform" elicit strong emotions from all sides. We, as lawyers, are at our best when we approach such matters in a methodical and coherent manner, without preconceptions – the way Glenn Robinson taught litigation. Our focus necessarily must always be on ensuring a judicial system which meets its constitutional mandates and which serves people fairly, equally and professionally.

It has been said that, when faced with the "winds of change," one can either build windmills or one can build walls. Tempting as it is to always want to build windmills, prudence requires in some cases that we instead build walls –- at least initially. Why? Because "change" and "change for the better" are not necessarily one and the same. It is in this process of differentiating between "good change" and "change for the sake of change" where I find the foundational grounding Glenn Robinson taught to be particularly important.

While one may hope that suggested "reforms" to our judicial system come from thoughtful groups and individuals who have the best interests of the people as their goal, one must worry that other suggestions for "change" come from those with more partisan or personal goals –- i.e., those who seek to bias the system to their favor.

Obviously, anyone suggesting "reform" is seeking a policy outcome of some kind. For those tasked with actually making changes within the judicial system, the truism that a system cannot become better without change must be tempered by the realization that while change to benefit the people is a good thing, change simply for the sake of change is an abdication of leadership (to paraphrase John Luke, Jr.), and change for the sake of a partisan interest or group is plainly offensive. In considering "reforms" to West Virginia's judicial system, it is therefore necessary to ask why and for whose sake are the proposed changes being advanced?

I have seen a great many reasons cited by proponents for "reforms." For the vast majority, the proof and reasoned consideration requirements for recommended "reforms" are not met. Too frequently, rhetoric, supposition and conjecture serve as the sole or primary underpinning for suggested changes in our judicial system.

In some cases, generic phrases such as "everyone knows," "the public is concerned that," "appearances dictate," "logic compels," and "fairness requires" betray an underlying lack of proof or a leap-frogging of the proof requirement – perhaps for partisan reasons. Such phrases are simply rhetorical – even when given by individuals of stature or position. They should never serve as the basis for change.

I also sometimes find that misinformation and disinformation are affirmatively advanced to support change. Disinformation is the most insidious threat to positive change. This includes the advancement of "half-truths," only telling part of the story, and "massaging the truth." Since they should never act without full and accurate information, those tasked with suggesting or making changes in any system must demand provable factual foundations from those seeking change.

Our judicial system has served West Virginia well for 146 years. It is a dynamic system. It has changed in this time and it will continue to change. It is the duty of those tasked with recommending changes and of those tasked with actually making changes to ensure that any change to West Virginia's judicial system be for the proper good of this and future generations.

Respecting the rule of law, requiring a showing of objective facts as the basis of proof, having a healthy skepticism for positions founded on rhetoric and supposition rather than facts, and acting with reasoned deliberation are a good start for those so-tasked. And to those who spend countless hours seeking to protect and yet make better our judicial system through the consideration of proper changes, we owe an enormous thanks for their service.

Benjamin is Chief Justice of the West Virginia Supreme Court of Appeals.

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