The governor reflects on law and the legal profession

Wilson says out-of-control legal system is hurting the state's economic interests

by DEAN KINLEY
Staff Writer

For Gov. Pete Wilson, his chosen profession is putting a squeeze on the state he is trying to lead. He doesn't blame most of his fellow lawyers; he doesn't blame judges. But he does fault the legislature and special interests for creating a legal system which he believes is spinning out of control.

"The legal profession in California includes some of the finest practitioners you will find anywhere -- some of the finest judges, some of the finest lawyers," Wilson said in an exclusive interview with the California Bar Journal.

But at the same time, "one of the major costs of doing business in California is the legal system" -- a system he believes has lost the confidence of the public and is in need of drastic overhaul.

He wastes no time in identifying whom he sees as the primary culprits.

"It's no secret that the California trial lawyers, who are now calling themselves the consumer advocates of California, have had very heavy clout in Sacramento," the governor said.
"They have been a very effective special interest in changing the law to their advantage and very much to the disadvantage of employers."

Legal shakedowns

What they have wrought, Wilson said, is excessive regulation on manufacturers, farmers and others who create jobs as well as excessive litigation, especially in the area of wrongful termination.

In many cases, the governor said, small business owners who cannot afford the time, the effort or the cost of fighting cases are advised by their lawyers: "This is wrong. If you took it to the mat, you would win, but don't. I have to advise you don't do it because it's simply not worth it. It would cost too much."

As a result, Wilson said, "You've got what are legal shakedowns."

To get back on track, Wilson believes the three tort reform measures on last month's ballot were only a good start. Laws need to be changed to allow California's employers to be on "equal footing with their competitors in other states," he said. And he called it "grossly unfair" for consumers to have to foot the bill for higher costs imposed on businesses.

Jury reform

The crisis of confidence in the legal system, Wilson said, is not limited to excessive litigation.

In the wake of the O.J. Simpson trial, the governor has endorsed changes in both the unanimous jury verdict requirement and allowing cameras to cover trials.

In noncapital cases, "there is much to be said for requiring a vote of 10 of the 12 members of a jury" to reach a verdict, Wilson said, noting that his concern is not prompted simply by costs. "When you're at the point you have hung juries in about 10 percent of cases, you're also facing something very serious in terms of loss of public confidence in the criminal justice system."

As for his call to ban cameras in the courtrooms, the governor says he believes in the public's right to know but also believes the public can be informed in a less intrusive manner.

"It's one thing to be a rape victim and have to go on the stand and tell your story under cross-examination to a jury," he said. "It's another thing to tell it to a nation at large."

He also believes, especially in light of the televised Simpson trial, that cameras "distort the performance of judges, lawyers and particularly of witnesses . . . And if you've had the worst of all worlds -- both a hung jury and a televised trial - it'll play hell in getting a jury that is not contaminated by the first one."

Decrease in crime

Of reforms already in place, the governor says he is pleased with the decrease in the state's crime rate and gives a great deal of the credit to the three-strikes law.

"The prosecutors, the police chiefs and the street cops are all convinced it's having an impact," Wilson said.
"And it isn't just their gut feeling."

To back up his contention, he noted a significant rise in the number of people paroled from California prisons who, in fear of acquiring a second or third strike, are leaving the state. By the same token, he said, statistics show that prisoners paroled in other states are not returning to California.

The governor does, however, concede that three strikes is, to a degree, clogging the courts. "People who have a second or third strike as a pending charge against them now are opting to go to trial rather than plea bargain," he said.

To counter that, Wilson said he has put $3.4 billion in his proposed budget to create a special force of 30 senior judges who would do nothing else but try three-strikes cases.

Judicial appointments

To date, the governor has declined to name his choice to replace retiring Supreme Court Chief Justice Malcom Lucas. He also said he was surprised at the pro-life protest against his appointment of Ming Chin to the high court.

"I think (the people who opposed Chin at the hearing) wanted to make a point, and it may be they're attempting to make the point not with respect to Justice Chin but for other reasons."

The governor said he takes great pride in his judicial appointments, especially in the number of women named to the bench during his administration.

"It's easier to do. There are now more women attorneys. There are more who have been in practice longer, and there are some damn fine ones."

Naming minorities

He acknowledged the difficulty of appointing more minorities to the bench, particularly Hispanics and African-Americans, and attributed the problem to financial sacrifice made by public servants.

"I've had first-rate lawyers say, 'Hey, listen. I'm flattered. I'm honored. I just can't afford it. I've got three kids coming along for college."

On a lighter note, when asked about his relationship with the legislature now that there are fewer lawyers in both houses, the governor enjoyed a chuckle.

"It might just be an interesting correlation," he said, "but it seems to be improving."