As a trial lawyer, I cannot imagine a more appropriate topic for discussion than the importance of fair and impartial courts. At a basic level, there. is nothing controversial about this subject. Who can really be opposed to fair and impartial courts? Yet, when fair and impartial courts decide controversial cases, those on the losing end are often angry and blame the courts, rather than the law, for the outcome. Controversy also arises when we try to define what a fair and impartial court does and what type of criticism of the courts is appropriate.

A fair and impartial judiciary is essential to the future of our nation, but it is not an easy objective to maintain. The judiciary’s mission places it in conflict with those who are in power. It has the task of protecting the rights guaranteed by our Constitution and our laws, regardless of the popularity, wealth, political affiliation, or power of the politicians and litigants affected by its rulings. There will always be forces opposed to a fair, impartial and independent judiciary. Our system of government, created with three coequal branches, virtually guarantees conflict between the judiciary and the other branches. Further, our legal system, based on an adversarial model of resolving disputes, guarantees that there will be winners and disappointed losers in every court case. We have an obligation as officers of the court to stand up for the judiciary when it is attacked for fulfilling its duty to uphold the law and the Constitution of the United States.

Preserving a fair and impartial judiciary is not a liberal or conservative issue. Historically, the courts have clashed with both liberals and conservatives, and we can expect this to continue. The courts were at odds with President Abraham Lincoln over slavery, with President Franklin Roosevelt over the New Deal, and with President George W. Bush over the Patriot Act. The courts act as a tempering influence on the party in power. It is essential that we protect and preserve this aspect of our judicial system. One only needs to look at the arrests and beatings of lawyers and judges in Pakistan to understand the importance of a fair, impartial, and politically independent judiciary. Those who would abuse or usurp political power fear such a judiciary.

What concerns me most about the current attacks on the judiciary is that there appear to be concerted efforts to make the judiciary more susceptible to political influence rather than less. For example, there is a movement to eliminate merit selection of judges in Missouri (known as the Missouri Plan). The attacks are couched in terms of making judges “accountable” to the people. In reality, they are designed to make the judiciary dance to the tune played by the politicians in power. These efforts seem designed to create a judiciary that follows the opinion polls rather than the law.

These attempts to make the judiciary more susceptible to political pressure are both shortsighted and foolish. History teaches us that the political pendulum swings back and forth, from Left to Right. The politicians who so desperately want judges who will fall in line with their legislative initiatives and executive actions forget that when the pendulum swings the other way, so will an elected judiciary. The judiciary must exert a steadying influence on our laws and our society, not act as a political bedfellow of the party in power. This is not to say that elected judges cannot be fair and impartial. Most serve the public with skill and honor. However, the public’s perception of the bench is not enhanced when judges are forced to raise significant amounts of money from people and businesses who will likely appear before them in court.

For the public to maintain confidence in our legal system, it must believe in the integrity and impartiality of the judiciary-and have a solid basis for that belief. For this to happen, lawyers must be part of the solution, not part of the problem. Rule 8.2(a) of the ABA’s Model Rules of Professional Conduct prohibit a lawyer from making “a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.” Rule 8.3(b) also requires lawyers to report ethical violations by judges. Lawyers must zealously represent their clients, but Rule 8.4(e) requires lawyers not to “state or imply an ability to influence improperly a government agency or official.” As members of the bar and officers of the court, we must help our clients and the public maintain their faith in the courts and the legal system generally, even when we are helping them overcome erroneous rulings or malfeasance, when that occurs.

We can help improve the public’s confidence in the judiciary by helping to teach our clients about the judicial system. We need to explain that when a case goes to trial, it is usually because either the liability, the damages, or both are unclear. We need to stress that losing is always a possibility at trial, that having a good lawyer does not guarantee a win. A client who knows what to expect in court is much less likely to unfairly blame a loss on favoritism by the judge. Clients need to understand that one of the strengths of our system is that we have appellate courts that can fix the mistakes of lower courts. When a doctor amputates the wrong limb, there is no appeal that will undo the damage.

When we win at trial, we must have the humility to tell our clients they won because of the facts or the law; we should never suggest that we have an “in” with the judge. When we lose, we must have the courage to tell our clients that they lost because of the facts or the law, or even a legal error by the judge, but we must not suggest that the decision was the product of favoritism, cronyism, or being “hometowned.” We must not suggest that the judge is biased or intellectually challenged. We must show respect for the process and the system, regardless of the outcome. We must not let our egos interfere with the public’s respect for the legal system.

Tension between the judicial branch of our government and the other two branches is inevitable because the courts have the task of keeping them accountable to the Constitution and laws of the United States. As lawyers, it is our responsibility to help the public understand this role of the judiciary and the reason for the tension. It is our responsibility to stand up for the judiciary when the natural friction between the branches of government leads to efforts to destroy the independence, fairness, and impartiality of our judiciary. A good first step is to read about this issue at www.protectjustice.org or www.justiceatstake.org. Or get involved with one of the many state or local bar association efforts to defend the judicial branch against unfair attacks. Each of us has a unique position to help protect a fair and impartial judiciary. We need to take that responsibility seriously.

(Adapted from a column by Richard Morefield published in “The Brief”, the quarterly law magazine of the American Bar Association Tort, Trial & Insurance Practice Section)