:: Russia's rule of law is in the hands of its judges, where it belongs

A group of lawyers are gathered and in addition to protesting about the traffic encountered in getting to the courthouse, they remark about the absence of reasoning in a recent order issued by a judge. Commonly, however, the reality is not so much that reasons were absent as much as those that were given were ones that the protesting lawyer does not agree with. It is the old fact of there being two sides to every question or as is satirically said of the legal profession if you need three opinions, you never need consult more than two lawyers.

This vignette is just as commonplace in San Francisco, where I long practiced law, as well as today’s Moscow where I am qualified and practice as a Russian jurisconsult as well as a member of the California Bar. Analogies are regularly drawn in both places between delays in the progress of litigation from the filing of complaints to their trial and decision with the seemingly stochastic movement of traffic during rush hour. Similarly the emptiness of legal reasoning that is protested is as often as not, the absence of the particular chain of reasoning advocated by the losing lawyer.

Because of prior judicial practices that acquired negative characterizations in the corridors of power in London, Paris, and Washington (e.g., “Soviet” judging and “telephone justice”) those political centers have followed closely the words of past President Putin and now listen closely to the words of President Medvedev regarding how the Russian legal system should and will operate.

Probably even more importantly, in corporate boardrooms management queries their counsel whose law firms have branch offices here about how the rule of law is observed. A notable American scholar, Kathryn Hendley has astutely researched and published her own empirical observations on the persistence (or lack thereof) of “Soviet” judging and “telephone justice see <http://www.law.wisc.edu/profiles/pubs.php?iEmployeeID=143>.

From Friday, a significant datum, (see <http://newsru.com/russia/17jul2009/raznosegor_print.html>) is a press interview following a meeting of the presiding federal judges from the many regional courts that comprise the megapolis that is Moscow with the head of the Moscow city court system, Olga Yegorova. Based upon a review of the combined administrative, civil, and criminal caseloads in the Moscow city courts, she reports two principal concerns:

First, there is a lack of timeliness in the processing of the many cases that are brought to these courts. Although noting that in these days of economic crisis the number of employment-related cases has risen sevenfold, she acknowledges this aggregate failure to meet the standards for the orderly processing of cases and admonishes herself and her colleagues to do better.

Second, she gives some credence to those lawyerly protests stated earlier in criticizing the sources and clarity of the reasoning given in the written decisions disposing of these cases. Right there, we have a quantum improvement in the quality of justice index in that if the first virtue of a legal system is in the independent decision of “who wins” in a given legal dispute, the second virtue is in the clarity and persuasiveness of “why” one side wins and the other loses.

Just as Judge Yegorova was pointed in not excusing the tardiness in case processing in light of the rise of employment discharge cases, she is even more sharp in disparaging judgments that rely upon evidence not scrutinized in the actual court proceeding.

These words about the texts upon which daily justice is served in contemporary Moscow are a most necessary and therefore notable advance beyond pronouncements from the higher realms of government. This is where human justice strives to reach for the law’s ideals and virtues in the lives of the common man and everyday business entities. Russia’s rule of law is then in the hands of its judges, where it belongs.

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