Vermont Bar Association Fall Journal Book Review
Fall 2023, Vol. 49, No. 3.
The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It by Thomas G. Moukawsher
Brandeis University Press, 2023.
Reviewed by Gary G. Shattuck, Esq.
Fifty. As in: Ways to Leave Your Lover; Shades of Grey; Hawaii Five-O; number of American states; years of marriage for a golden anniversary; and, of course, the “The Big Pineapple” ($50 dollar bill). But wait, there’s more! Now, 61-year-old, first- time author (and sitting Connecticut judge) Thomas G. Moukawsher adds to this random genre with his legal treatise The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It (Waltham, MA: Brandeis University Press, 2023). While Moukawsher’s goal to identify more than four dozen instances calling for reform may not sound as punchy as the others, it is, after all, the law. It is a topic that most people certainly have, at least, a passing, general love-hate understanding of, and opinion on, but lack the depth of knowledge or day-to-day personal stake in it that its practitioners, i.e., law students, law clerks, associates and partners, and at the top of the food chain, judges do. The question then is whether Moukawsher can wring out so many areas calling for attention that he is able to shake his peers from their lethargy to reset the way contemporary business is conducted to favor a larger, albeit skeptical, public audience.
Over the course of 51 chapters spanning 240 pages, punctuated by 51 pithy cartoons, Moukawsher soundly nails his 50 theses to the law’s front door calling for reform. They vary widely in length from 33 pages (Chapter 1 – Prefer Humanity to Complexity) to just one (Chapter 48 – Courts Must Re-imagine Themselves). Stretching to accomplish his goal, a few do become somewhat repetitive as they seek to distinguish themselves from a broadly stated issue raised in an earlier chapter that could have included them all at one time. Regardless, in their totality they display the depth of the author’s concerns for the legal profession probing deeply its interstices in search of deficiencies and then offering thoughtful suggestions for change.
The thread that ties it all together is Moukawsher’s call to reorient the law from its staid, formalistic rituals that “sucks the oxygen out of an ordinary human problem” (43) to, instead, focus more directly on people’s needs, or humanism. His arguments effectively seek to reject entrenched procedural tyrannies befalling the profession in favor of a new paradigm embracing a kind of compassionate pragmatism. If any chapter should be read foremost to put the current challenges into context, it is the first where he provides an excellent overview of how the law has become so complex over time to reach the state where it is now.
Setting the stage for what follows, Moukawsher first asks how have we passed from the most basic natural law teachings of Aristotle, Plato, and St. Thomas Aquinas invoking intuitive, utilitarian, realistic resolutions to everyday human challenges to, instead, favor those expounding a bevy of confusing -isms, i.e., the positivists, textualists, originalists and economics-based views. To demonstrate an extreme, he presents the outlandish example of an otherwise well-respected jurist, Seventh Circuit Court of Appeals Judge Richard Posner. In it, Posner inexplicably advocates reliance on a convoluted, incomprehensible eighteenth-century process called the “Bayesian decision theory,” accompanied by an equally convoluted and incomprehensible Rubik’s cube- like mathematical equation, to determine if a witness can believed. (21-22) Whatever happened, one might ask, to simple common sense to resolve life’s problems? And, as the author reminds on several occasions, law is art, not science.
Neither is Moukawsher hesitant to take aim at, for lack of a better word, dissembling, Janus-like formalistic means relied upon by the U.S. Supreme Court. In particular, he singles out Justice Samuel Alito’s recent majority (leaked) opinion in Dobbs v. Jackson Women’s Health Organization utilizing unhelpful, formalistic reasoning and language to justify overturning the landmark Roe v. Wade abortion case. In doing so, Moukawsher contends that such a process tends to undermine the Court’s credibility, offering, instead little more than a “pretense of objectivity.” (234) Tracing the role of judging in general and its overall problem with drafting unnecessarily complex decisions, he notes the presence of competitiveness among overworked law clerks straining on their behalf attempting to make both themselves and their judge-mentors stand apart. To provide a return to normalcy, he suggests that judges should instead take a more hands-on “village elder” persona in their work invoking more approachable, commonsense reasoning.
Structurally, Moukawsher thoroughly dissects virtually all aspects of legal practice steering disputes through the system questioning if they need to be so formal, so process-driven that they cloud the underlying issue(s) at hand. The burdensome costs associated with such practice simply forces the parties to settle not on the merits of a case, but on their need to avoid financial ruin. To drive home his points, he makes frequent reference to real life circumstances using actual trials and to diverse Hollywood movie portrayals as examples. He argues for a wide range of changes, among them: drafting concise, to-the-point arguments in complaints, motions and briefs (Chapter 38, The Best Legal Writing Is Literature, Not Formula), eliminating burdensome discovery requests constituting a “cat and mouse” game, minimizing needless arguments over standing and subject matter jurisdiction, the increased use of mediation, streamlining trials, imposing time limitations on the parties, and embracing technology (i.e., Zoom) to obtain more diverse juries and reduce hard- ships in securing witness testimony. He further warns that such modernity will certainly upend the profession’s traditional reliance on court reporters; indicating that their days are numbered. Moukawsher is a realist and notes that while the codified and self-imposed rules the law operates by are difficult to change, then certainly its practitioners can alter their habits to focus on the merits of cases to be sure to reach more humanist, or “user friendly,” resolutions.
Lastly, because of the seriousness and rapidity of recent revelations leaking from all three branches of government, some of Moukawsher’s effort has been, in some way, in the language of diplomats, OBE, or “over-taken by events.” This is because his goal to identify 50 areas needing attention might not even be enough for just a few months ago nobody could have envisioned the threat posed by artificial intelligence penetrating so quickly into all aspects of life. This includes the law where attorneys blindly submit error-ridden computer-generated briefs citing non-sensical argu- ments and non-existent citations. Nor could anyone have ever imagined the reports of political bias within and ethical breaches by Supreme Court justices or the breathtaking, dystopian allegations of serious racketeering crimes involving a former president, ones facilitated by a cadre of enabling attorneys, shaking the foundations of our democracy.
These tests notwithstanding, the central thrust Moukawsher’s book makes it even more important to seriously consider implementing at least some of the changes he suggests sooner rather than later to strengthen the practice and to mitigate the presence of such threats. Reducing the com- plexity of the legal system, thereby making it more understandable to the general public, will allow the basic honesty of the courts to shine through and remove the skepticism that many have of their fairness. (Chapter 51 – Steady Courts May Mean A Steadier Country). The stakes are high, he says, because the credibility of the profession de- pends on such changes in order to meet the needs of its customers, some of whom who are becoming increasingly belligerent and willing to physically strike out against the status quo and the people charged with up- holding its values.
Gary G. Shattuck, Esq. is a former Vermont State Police commander, assistant attorney general, and assistant U.S. attorney who also acted as a legal advisor to governments in Kosovo and Iraq and as Vermont’s anti-terrorism coordinator. He is the author of several publications concerning Vermont history written from a legal perspective, most recently Night-Rider Legacy: Weap- onizing Race in the Irasburg Affair of 1968 (White River Press, 2022).