The Common Law #2

The Common Law #2
(The following column originally ran in the July 4, 2007 edition of the Moody County Enterprise.)

The Common Law:
Don't Fear the Courthouse

By N. Bob Pesall 
Attorney At Law 
Flandreau, SD 

At least once a week, one of my clients will, almost tearfully, express that peculiar form of terror which arises only when a person must appear in court. I see that fear, not only from people facing judgment, but from witnesses and even potential jurors. “I'm terrified of being in court,” and “do I really have to go?” are probably the two most common statements I hear in my office. (“I think I'm going to hurl” and “how much is this going to cost?” are tied for a distant third place.) Being in court, whether as a party, a witness, a juror, or a spectator, was never intended to be a punishment. It is supposed to be a valued right, like voting or talking about politics at the bar. But somehow, over the years, we've lost sight of this.

I don't think we were always so afraid of our own courts. Not too long ago, before there were quite as many television channels, a lot of people would go to the courthouse for entertainment. Trials are open to the public, after all. Our constitutions require it. Back then, the courts were a part of our daily lives; we knew what went on, we watched trials, and we served on juries. Courtrooms were no more frightening than church on Sunday. The only scary part was facing our own mistakes.

Then, things began to change, and we stopped visiting our courthouses. The court, once our friend and entertainer, became an unfamiliar stranger. Admittedly, some of these changes were good, but some were not. For example, in 1966 South Dakota enacted a new set of procedural rules that dramatically changed how civil cases were handled. (Civil cases generally involve disagreements between private parties over things like broken contracts or personal injuries.) Before these rules came into use, trials were more of a guessing game. If you had a disagreement with someone, you quietly collected the best witnesses and evidence you could find. You went to trial, and you showed them to the court. The other side did the same, and both sides hoped for the best. This process created a lot of uncertainty. The new rules gave the parties the right to look at the each other's evidence, and to interview all the witnesses in advance. Disclosure became mandatory. By putting all of the evidence on the table right away, the uncertainty was removed. It also became much easier for people to settle their disagreements without actually going to trial. As a result, people saved a lot of time and money, but there were fewer jury trials.

A similar change happened on the criminal side of things. One need not be a lawyer to notice that, in the last hundred years, we have created a lot of new crimes. Some of these new crimes overlap. Some of these crimes, such as operating a vehicle with an impermissible blood alcohol level, also require elaborate scientific evidence analysis that is hard to conduct and harder to explain. Under these laws, because the evidence is so tricky, and because there are so many overlapping charges, the interests of justice are often better served by negotiating plea agreements instead of taking cases to trial. This saves the public a lot of time and money. It also guarantees that someone who may have committed several crimes will pay the penalty for at least one of them. It also results in fewer jury trials.

In addition to the decline in jury trials, there have been a number of smaller social changes which have pulled people out of the courtroom. Television, for example, provides us with easy access to entertainment. We no longer need to trek to the courtroom for a good show, because we can tune into one in the comfort of our living rooms. Also, trials are held in the daytime, but most of us now live in double-income households and work in jobs that do not allow us to skip out for an afternoon just to watch a trial. We're simply too busy.

This lack of time and decline in the number of jury trials has detached from our courts. This detachment is the source of our fear. We don't watch the court from the jury box, because cases seldom go to a jury. We don't watch the court from the courtroom, because we don't have time, and there is probably something better on television. When we stopped watching, the courtroom became a big, scary unknown thing. Since it scares us, we try to avoid it even more.

The courtroom is the place were the people meet the laws they make. Our courts decide our fate, and our judges, from the local Circuit to the South Dakota Supreme Court are our elected officials. If we stop understanding our courts, we stop understanding how our laws really work. In the end, we give up control over an entire branch of our government, and we get nothing in return.

The solution to this problem is simple, but not easy. We need to stop being afraid. As citizens of this great State, we owe that much to ourselves. We should find the time watch our courts in action. If we are offered the chance to serve on a jury, we should take it. If we are called to be witnesses, we should come early and leave late. Our courtrooms are shrines to democracy, not torture chambers.

The foregoing column is written for informational purposes only, and does not constitute legal advice. For those desiring more information, Moody County Court is usually in session and open to the public every Tuesday at 9:00. N. Bob Pesall can be reached at P.O. Box 23, Flandreau, SD 57028, by telephone at (605) 573-0274, or on the web at