Legal Ethics and Reform

Of Thane Rosenbaum and Legal Arrogance

Thane Rosenbaum’s recent book the The Myth of Moral Justice: Why Our Legal System Fails to Do What's Right, does a wonderful job of comparing the legal system as portrayed in books and films with American legal reality. This book points out the usual list of failings found in the current system: high cost which make justice inaccessible to lower income people, slow process which leave people dissatisfied even when victorious, poor results oftentimes resulting from the mismatched skill levels of the opposing lawyers, secrecy in settlement agreements which make it impossible for outsiders to determine who the bad actors are in the community, lack of a duty to help those being injured by others or by nature, failure to let witnesses at trial tell their tale in their own way, no way to allow people to apologize quickly following a negligent act that injures, etc. Mr Rosenbaum, a Prof of Law at Fordham University in New York, spends a lot of time discuss the emotional side of dispute resolution. Although money damages are not unimportant, oftentimes the plaintiff is more interested in telling his story at his own pace and in his own words and hearing an apology or explanation from the other side again in their own words and at their own pace. Rosenbaum is at his best describing the anguish that our legal system engenders in people who simply want to explain their complaint and hear a heart-felt response from the other side. The book is missing any serious discussion of process changes which might improve the system. There is no discussion of the European Inquiry system which is generally known to be faster, cheaper, and more accurate than the America’s adversary system.

Prof Rosenbaum opens his book with a quote from Frans Kafka’s The Trial “Lawyers never want to change the legal system.... no matter how bad it needs change!”. This quote perhaps explains why this author doesn’t much bother with serious suggestions for reform. After all why suggest reforms to a group that has total control and no interest in reform. The typical lawyer is a bundle of contradictions; a self confident superiority that borders on arrogance, masks a internal self loathing brought on by the boring paperwork that covers their desks and behavior that’s required in the courtroom where the wealthy demand that their lawyers argue for immoral advantage while opposing lawyers, knowing their clients are short of cash, advise the acceptance of settlements that are really unjust. Arrogance and self confidence are required of these professionals. They want to be considered leaders of society, but they are incapable of accepting change because they can’t admit the current system is so flawed. Like the near alcoholic who wants to change but can’t. He senses that changed behavior would be an admission of an earlier problem. He continues doing that which brings about his physical and emotional destruction. Unfortunately both the lawyer and heavy drinker, by refusing to change, bring pain and suffering on others as well as themselves.

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