Legal Ethics and Reform
This page is here to allow for the easy printing of all the shorter essays in the Legal Ethics and Reform Web Site. Readers are encouraged
to print these out and give them to their most thoughtful friends.
Legal Systems and Dissimulation
America and Great Britain have the adversary legal system, not the inquiry system found in
Germany, Italy, France, and Spain.
In the adversary system the opposing sides selectively emphasize some facts and denigrate other
facts often using dramatic devices and rhetorical flourishes. These tactics are used as lawyers make
motions, conduct discovery, enter objections, examine witnesses, and deliver closing arguments. This
is done to cast their own facts in the best possible light and to cast the other side's facts in the worst
It's clear an adversary legal system requires that lawyers be skilled in the arts of dissimulation - a
form of lying - that involves the fervent telling of half truths and the skillful misleading of others
through verbal indirection.
Legal Education & The Proliferation of Sin
In America large numbers of our brightest young people are taught the arts of dissimulation. These
law students are taught that this form of deception is required of them because of their "place" or
"role" in society.
Moral theologians have noted that people who have systematic, imbedded immoral behavior of one
kind in their lives tend to have compromised consciences and over time will tend to develop
problems with other kinds of immoral behavior. With lawyers, other kinds of immoral behavior
keep cropping up with little open sign of remorse.
Perjury : a Crime but not a Tort ... Why?
In normal business affairs when a person lies and thus injuries another, both a crime and a tort are
committed. The criminal prosecution could lead to a fine and possible imprisonment. The tort action
could lead to a judgement allowing the injured party to collect actual and punitive damages from the
wrongdoer. The burden of proof for the crime is high - "beyond a reasonable doubt", for the tort
the burden of proof is lower - "by a preponderance of the evidence".
When a person is caught lying in court, the rules are different. The courts have allowed the
prosecuting attorneys to retain their right to bring criminal prosecutions, but the courts do not allow
the injured party to seek damages under tort law. This means that the injured party must turn to a
prosecutor to get relief. Because of the high burden of proof and because of the heavy press of more
serious cases, prosecutors seldom bring perjury actions.
The reasons for this anomaly are unclear. The courts claim that allowing such tort actions would
lead to a flood of law suits because lying is common in our courts. If lying is common, steps should
be taken to weed it out, not shelter it. More likely, courts are worried least the sister tort "suborning
perjury" be reinstated. Since lawyers commonly coach their clients before they testify, and since
"suborning perjury" is defined as helping someone commit perjury, a client who was charged with
the tort of perjury would be opening his lawyer to the sister tort of "suborning perjury".
Lawyers in other Occupations & Government
Lawyers tend to take their unique life view about lying into other occupations - particularly politics,
the media, and business. In these areas dissimulation tends to serve them well as they selectively
lead or mislead voters, viewers, regulators, readers, customers, etc. Their obvious success often
causes non-lawyers in these fields to imitate their questionable behavior patterns.
America's government is particularly disadvantaged when lawyers serve in elected or appointed
policy making positions. This nation's government depends upon a separation of the three branches
of government - the legislative, the executive, and the judicial. Unfortunately each lawyer always has
one foot in the judicial branch by virtue of his training and memberships in bar associations which
are regulated by courts and judges. The Constitution (Art III, Sect 2) has provisions which allow the
Congress to control which cases may be heard by the Federal Courts. With so many lawyers in
Congress, it is no accident that Congress seldom exercises its rights to regulate and control the
activity of the Federal courts.
The Inquiry System & The British System
The inquiry system of law uses one government appointed lawyer to gather and present all facts in a
case to the judge and jury. Parties are allowed to have their own lawyers and may ask additional
questions at trial. This system is generally agreed to be 1/3 as costly, to be three times as fast, to give
better results most of the time; but most important, it does not require that large numbers of young
people be formally trained in dissimulation. Fees in this system are set by the government. Parties
with small cases face small fees, parties with large cases pay large fees. The large cases subsidize the
cost of the small cases, society accepts this approach because everyone benefits when society's
disputes are handled properly.
In Britain, the adversary system works more smoothly than it does in the U S. British lawyers who
go into court are called barristers. Lawyers who prepare wills, contracts, trusts, or regulations for
the government are called solicitors. In America all lawyers are expected to be able to do either
courtroom work or legal paperwork. British barristers because of their extensive courtroom
experience make fewer procedural errors and do a better job representing clients. The British court
system has two other improvements: 1) barristers are required to wear standardize clothing and
must not use arm and body motions to dramatize their speaking points, and 2) juries are selected
before the trial by an officer of the court or judge removing those that have conflicts. The barristers
are not given any opportunity to challenge or disqualify members of the jury. In Britain the
appellate process leads to a judicial committee of the Parliament not a stand alone "supreme court".
This assures that the "case law" of Great Britain is kept compatible with the laws enacted by
Parliament. In American it is not uncommon to see Supreme Court decisions working at cross
purposes with the laws enacted by Congress or the States.
The Lawyer's Place in society ...then and now
Historically when families were stronger, when ministers, rabbis, and priests provided moral
guidance, when people had a shared morality, when government was less intrusive, few people
actually had to deal with lawyers or the legal system. The legal fraternity was smaller and more
responsive to the community's values. Lawyers studied in local law offices, not in far distant, law
schools awash with theoretical ideas.
Today, as American society becomes more pluralistic disputes arise more readily and millions are
forced to turn to our "legal priesthood". The poor results, the high costs, and the unbelievable
delays have fostered widespread dissatisfaction and distrust.
Barriers to Change & A Path to reform
Yet Americans are unwilling to address the "lawyer" problem openly. Why? The barrier seems to
be the presence of one or more lawyers in most American families. So the furtive lawyer joke has
become the ever present, and unacceptable, response.
The solution lies in staffing law making and governmental policy making positions with reform
minded non-lawyers who are prepared to pass laws and constitutional amendments that will
improve our legal system. Serious voter education could turn the secret ballot into an unstoppable
force for legal reform. This education process needs to begin today.
There is one anomaly in the American governmental system that needs special attention. Since
Marbury v. Madison was decided by the Supreme Court in 1803, that court has been accepted as the
institution which "interprets" the U S Constitution. This fact combined with the fact that lawyers
traditionally serve on the Supreme Count means that lawyers serving on the Court will ultimately
decide which reforms will be "constitutional" and which will not. Either Supreme Court
appointments must be reserved for non-lawyers or the appellate processes of the courts must change
to assure that lawyers serving on the Supreme Court are not in a position to "nullify" voter effort to
reform the legal system.
The Costs of Civil Litigation here and abroad
The adversary system demands that two lawyers become not only fully conversant with the facts of a
case and the evidence supporting those facts, but it also requires that they carefully consider what
"tricks" the opposing counsel is likely to use. This makes the preparation of a trial under the
adversary system an expensive undertaking. Lawyers with their office expense, malpractice
insurance, taxes, regulatory fees, not to mention personal salary needs are lucky to make ends meet
charging $75 or $100 per hour. Eighty hours can easily be consumed moving a very simple case
through to the end of trial.
Considering that the average household income in America is about $31,000, it quickly becomes
apparent that few people of average means can consider availing themselves of their constitutionally
guaranteed right to have their dispute heard and decided by a jury. In fact, experts have estimated
that only 20% of the American population has enough wealth to pursue dispute resolution from
filing a lawsuit through a trial.
One often hears that contingency fee arrangements substitute for hourly billing arrangements for
people of average means. This is true where relatively large amounts are at issue and ultimate
collection of the judgement is assured. But if a dispute involves $10,000 or $20,000, which is an
amount that a family earning $31,000 per year is likely to be fighting about, a trial by one's peers
will cost more than is at issue. In these cases the lawyers get together behind closed doors cut a deal
and force their clients to accept it. The parties are denied their day in court and the feeling of
"closure" that brings.
By contrast, in Germany, which follows the inquiry system of law, it is considered a societal good to
have all disputes large and small properly decided in open court. So in Germany large cases are
charged an extra fee to fund an account which subsidizes the costs of smaller cases. The system in
Germany is cheaper overall because only one court appointed lawyer is involved in a case. He is
charged with gathering the facts and presenting them to judge and jury. The fact that only one
lawyer is involved also keeps costs down because he doesn't have to worry about countering "tricks"
from the other side. Although both sides are allowed to hire their own lawyer to ask additional
questions at trial, few people actually incur this expense, particularly on smaller cases.
Several Important Legal Reforms
1) Small case trial reform - On small cases, misdemeanors and civil cases involving an amount of
$100,000 or less, a court appointed "presenting lawyer" should be engaged. These lawyers would be
paid by the state and would gather all facts and evidence and present this evidence to the judge and
jury. The parties could still have their lawyers but these lawyers would follow the court appointed
lawyer's questioning the witnesses. Only the "presenting lawyer" could make opening and closing
statements to the jury. People would soon realize that they needn't hire an attorney because the
court appointed lawyers were getting fair results. The government fund which pays these
"presenting lawyers" might be maintained by putting a 2% surcharge on any civil judgement
regardless of size.
2) Legal Education Reform - Only lawyers who had worked as a court appointed "presenting
lawyer" would be allowed to take a new fourth year in Law School to become a "large case litigating
attorney". This effectively means that no one could become qualified to handle a large adversary
case until they were in their late twenties and had quite a bit of court room experience. The
advantage here is that it would allow law schools to remove Moot Court, adversary brief writing,
and other courses that teach students to dissemble from the basic curriculum. Law schools could
reserve this experience for the returning fourth year men. Since most lawyers would never return
for the fourth year, far fewer people would be exposed to formal, class room based training in
3) Separation of Powers - Since lawyers have a special loyalty to the judicial branch by virtue of
their education and membership in bar associations, it is best that no member of the bar serve in an
elected position in the executive or legislative branch. If a lawyer really wanted to serve in the
legislative or executive branch all he would have to do is resign his bar association memberships and
agree to retake and pass the bar exam if he choose to reenter the practice of law later.
4) Tougher Treatment for Lying Lawyers and Lying Clients - Dissimulation, a form of lying, is a
chronic problem with lawyers. Lawyers sometimes pass these skills on to witnesses as they prepare
them to testify. New rules need to be developed to help people root out any hint of lying on the part
of a lawyer or a witness. This means that the tort of perjury must be reinstated so victims can go
after liars. Furthermore, there needs to be a law that says whenever a tort case for perjury is filed
the persecuting attorney must present the facts of the case to the grand jury for possible indictment.
In addition, all bar associations and/or state supreme courts that maintain disciplinary committees
must initiate disbarment proceedings immediately if a civil jury finds a local lawyer coached a client
to commit perjury. Finally, citizens must be given absolute immunity from liable and slander
charges if they bring information about a wayward attorney to the attention of the disciplinary
5) Strict Liability for Lawyers who bring Frivolous Cases - Currently if a lawyer files a case for a
client and the facts are such that the client has no possibility of prevailing, the lawyer is absolutely
protected from any counter suit from the person who he sued. The party who was improperly sued
may sue the other party but not the other party's lawyer. This is an important distinction because
oftentime the party bringing the groundless case is relatively poor and in fact had been induced by
his lawyer to bring the case in the first place. This situation needs to be changed to so that both the
lawyer and his client can be sued if the facts show that there was no good reason to bring the lawsuit
in the first place.
6) Jury Reform is Needed - Jury selection in this country allows lawyers for both sides to have
preemptory challenges which they use to shape the jury to their liking. The processes usually leave
the jury panel stripped of its most experienced and well informed members. In Britain, the jury
selection process is conducted by the court before the lawyers arrive. If this processes were
instituted in America, trials would be faster, cheaper, and the juries would contain a better cross
section of the population. Another improvement that has been suggested, that in reinstituting the
ancient practice of Jury Questions. This practice found in medieval England, had the jury together
the advocates (lawyers) asking questions of the witnesses. We could simply have a final moment just
before any witness got down from the witness stand when any jury member could pose questions.
7) Supreme Court Reform - The Founding Fathers wrote Art. III, Sect. 2 into Constitution obviously
intending for Congress to provide serious direction to the Courts. However, over the decades the
Congress has let its powers under this provision atrophy through disuse. The Supreme Court, on the
other hand, has not been shy about increasing its authority. The Court's power grab began in 1803
when Marbury v. Madison was decided. In this case the Supreme Court gave itself the "all
important" right to interpret the Constitution and thus the power to declare the acts of the states or
the other branches of Federal government unconstitutional. The net effect has been to make the
courts the most powerful branch of our government. Some experts have gone so far as to say that a
Supreme Court session is the equivalent of a Constitutional Convention. Whatever the court says the
Constitution means, it thenceforth means. This is an extraordinary power to be vested in nine men
whose quality of service is greatly influenced by the aging process and whose length of service is
dictated by fate. If the court is to have this extraordinary power than the court's decisions need to be
subjected to a review process that gives this nation's legislative bodies a chance to force the court to
reconsider a given decision. The existence of this process, which might be called "temporary
nullification" would force the Court to consider all its decisions in the light of what the average
person or legislator feels is right. (Read on for more on how this might work.)
A Proposal for .......
Legislative Nullification of Supreme Court Decisions
It is clear that no attempt to impose legal reform on the U S will succeed if a Supreme Court,
manned by nine lawyers, is allowed to retain the absolute power to declare all or part of any reform
unconstitutional. So some change in either the court's composition or the range of its authority will
be needed. It is possible to devise a reform which makes the composition of the court more
acceptable, but it is far better to implement a reform which restores the Supreme Court to its
proper place as the weakest of the three branches.
The court therefore should continue composed as it is today; but in the spirit of Art. III, Sect. 2 of
the U S Constitution specific provisions should be adopted to give legislators the power to
temporarily nullify the Court's decisions and return them to the Court for reconsideration. Because
litigants need to have their disputes brought to a conclusions as quickly as possible, this nullification
process should be designed to operate as quickly as practicable.
First - there must be a 60 day window following the issuance of each Supreme Court decision,
including decisions to deny certiorari, for a significant group of legislators to step forward and
indicate in writing to the Clerk of the U S House of Representative that this decision has major
societal implications and therefore deserves review by the elected representatives of the people. If 10
Senators, or 44 U S Representatives, or any 500 state legislators so indicated, the court decision in
question would be "stayed" pending the actions set out in step 2 below.
Second - Once a court decision was "stayed", an additional 180 day period would be set aside for all
state and Federal legislative bodies to debate the court decision at issue. Each legislative body would
then vote up or down to "temporarily nullify" the decision or not. If a simple majority of both the U
S Senate and U S House voted to "temporarily nullify" the decision would be sent back to the
Supreme Court to be redone. If a simple majority of both legislative bodies in 26 states voted to
"temporarily nullify" the decision would be returned to the Supreme Court to be redone. (If
Nebraska's unicameral legislative body voted to "temporarily nullify" it would count as one of the
If a decision was "temporarily nullified" the court would be expected to carefully study the
comments made by U S Senators, U S Representatives and state legislators who voted to nullify. Out
of this study the Court would no doubt find a new approach to make its handling of the case
acceptable to the broad base of American opinion.
Obviously, this process of nullification would not be used very often, but the very existence of the
process would cause the Court to be very careful not to trigger legislative reaction to its work.
Warnings about Political Organizing
It is obvious that reducing the power of lawyers in America must begin with reducing the influence
of lawyers on and in elective offices. To do this, voters must be educated about our lawyer problem,
and they must be made aware of which lawyers are seeking office during every election cycle .
This process seems quite easy. Each concerned citizen prepares a flyer, stating why the influence of
lawyers needs to be reduced, and then listing the lawyers currently running for office. For a few
dollars the flyer can be printed and distributed.
Unfortunetely, doing this involves the expenditure of money in opposition to candidates for elective
office. The election laws are quite explicit that money spent supporting or opposing candidates
requires reporting of these expenditures to Federal and State authorities. If candidates for Federal
office are listed in the literature along with candidates for state office both sets of laws come into
play and special rules allocating the expenditures between Federal and State candidates must be
These rules must be carefully followed particularly because lawyers are being targeted. If the
opposition effort is not successful, and the lawyers who are seeking office get elected, failure to
follow these laws exactly might be ignored. However, if the opposition effort is successful and some
lawyers actually lose "because they were targeted for being lawyers", complaints will be filed with
the election authorities and a detail review of these election expenditures is likely.
Anyone contemplating focused political activity designed to reduce the number of lawyers elected to
office should immediately contact the election authorities in Washington (800-424-9530 or
202-219-4140) and in their State Capital:
Alabama (334-242-7210).... Alaska(907-465-3520)..... American_Samoa(684-633-1632)....... Arizona(602-542-4285).....
Arkansas(501-682-5070)..... California(916-653-6224)..... Colorado(303-894-2680)..... Connecticut(203-566-3059).....
Delaware(302-739-4111)..... District_of_Columbia(202-939-8717).... Florida(904-488-7690).....
Georgia(404-856-2871)..... Guam(671-477-9791)..... Hawaii(808-586-0285)..... Idaho(208-334-2852).....
Illinois(217-782-4141)..... Indiana(317-232-3939)..... Iowa(515-281-4028)...... Kansas(913-296-2236).....
Kentucky(502-573-2226)...... Louisiana(504-342-4970)..... Maine(207-287-6219)..... Maryland(410-974-3711).....
Massachusetts(617-727-2832)..... Michigan(517-373-2540)..... Minnesota(612-296-8217)..... Mississippi(601-359-1350).....
Missouri(314-751-2020)..... Montana(406-444-2942)..... Nebraska(402-471-2554)..... Nevada(702-687-3176).....
New_Hampshire(803-271-3242).... New_Jersey(609-292-3761)...... New_Mexico(505-827-3620)....
New_York(518-474-8200)..... North_Carloina(919-733-2186)..... North_Dakota(701-328-2900).....
Ohio(614-466-2585)..... Oklahoma(405-521-3451)..... Oregon(503-966-1518)..... Pennsylvania(717-787-4979).....
Puerto_Rico(809-724-4979)..... Rhode_Island(401-277-2340)..... South_Carolina(803-734-9060).....
South_Dakota(605-773-3637)..... Tennessee(615-741-7959)..... Texas(512-463-5800).... Utah(801-538-1040).....
Vermont(802-828-2363)..... Virginia(804-786-6551)..... Virgin_Islands(809-774-2991)..... Washington(360-753-1111).....
West_Virginia(304-558-6000).... Wisconsin(608-266-8005)..... Wyoming(307-777-7378)
Why are Lawyers so Attracted to Politics?
Anyone who ventures into the business of influencing elections will be stunned by the high
percentage of lawyers involved in politics. Whereas the number of lawyers in the adult population is
1/4 of 1%, the number of lawyers at a typical political meeting is likely to be 10% or more. At
higher level meetings, like State Party Committee meetings, 25% or more is not uncommon. The US
Congress is about 50% lawyers.
The political activist must always remember the close link between lawyers and elected office
holders. All lawyers, even those who are not seeking elective office, are very interested in politics.
First, lawyers realize early on that the judicial branch of government has a lot of highly
compensated judgeships that only lawyers can hold. For every thousand lawyers in the US there are
about 50 judicial positions paying in excess of $75,000 per year. These jobs at the state and federal
level are mostly appointed, and the person doing the appointing is either the President of the US or
governor of a state. So thousands of lawyers swarm around trying to figure out which candidates to
support today in order to improve their chances of being appointed in four, eight or twelve years.
Second, many lawyers become experts in one or two areas of the law. These lawyers become very
interested in the appointments made to certain judgeships and regulatory positions, and in the
making of laws and rules that govern their area of interest. To retain their ability to influence these
governmental processes, these lawyers remain very active in politics.
Finally, legal education necessarily involves a lot of explaining about how laws and rules are made
and how they change over time. Knowledge about any system, no matter how acquired, will usually
lead to a higher than normal interest in that system. However, because of a peculiarity of the legal
mind, lawyers are unusually attracted to politics and government. The psychological make up of the
typical lawyer is worth mentioning. Lawyers are brighter than average, more aggressive than most,
slightly more introverted than normal, and, most important, have a larger than normal need to
exercise control others. Governmental process exert control over others. The combination of
knowledge and psychological proclivity leads to heavy lawyer involvement government.
Of Lincoln, Lawyers, and the Proliferation of Parties
The United States is experiencing a surge in third, fourth, and fifth party activity. In addition, many
electorial changes, some old ideas and some new, are being promoted. Mostly these changes are
designed to give more power to committed voters who remain apart from the traditional "big tent"
parties, the Republicans and Democrats. These reforms include multi-party candidacies by one
candidate, cross party endorsements, multi-candidate districts, cumulative voting, easier ballot
access for new parties, elimination of the electorial college, etc.
Logically these changes should lead to a decreased involvement of lawyers in the Executive and
Legislative branches of government. In "big tent" party politics the ability to dissemble convincingly
is a great asset. "Big tent" parties attract a wide array of people with oftentimes conflicting ideas
about key issues, so candidates who can "finesse" key issues, have a distinct advantage. Is it any
wonder that lawyers oftentimes win key endorsements, get support from a wide, disparate array of
contributors, and thus win primaries particularly for the most visible offices? In Missouri, in the
1992 governor's race both of the major political parties nominated lawyers. Then in 1994 in
Missouri again both parties nominated two different lawyers to run for U S Senate. In 1996, the
Presidential race being served up by the major parties will be an unusual four lawyer face off with
Bill and Hillary Clinton opposing Bob and Liddy Dole.
With the advent of more focused political activity, the ideologically committed candidate, who
speaks from the heart and gives no thought to dissimulation, should have an advantage. Such
candidates will be appealing to smaller, more committed groups of voters who presumably will
appreciate the candor. Of course, the test will be the actual election of these more committed people.
History, however, does not support the view that non-lawyers are advantaged by the proliferation of
parties. The last time America saw such a proliferation of parties was in the 1850's. This lead to the
election of Abe Lincoln with 38% of the popular vote in 1860. Lincoln, a lawyer, lead the abolitionist
Republican Party to victory and then lead the county into a brutal, bloody war. He was a man in
intellectual flux; he was a lawyer who could dissemble with unequalled eloquent. His address
following the carnage at Gettysburg stands as one of the most quoted works of the English language.
In this address, in the middle of a war to conquer secessionist states, he managed to completely
avoid the word "state" or its plural "states".
Lincoln wanted freedom for slaves, but lacked vision; he was unable to learn from the experience of
Britian and France. These countries, in the 1830's and 1840's, ended slavery with little bloodshed,
some compensation to slaveholders, accompanied by training and apprenticeship programs for the
freed slaves. Lincoln spoke eloquently of freedom but imposed major restrictions on the civil rights
of Americans. He had an understanding of the benefits of keeping the Union. However, he did not
appreciate the subtle brilliance of the Founding Fathers who had checked Washington DC's power
by creating strong states, possessed by virtue of the Tenth Amendment of "all powers not delegated
to" the federal government. Lincoln totally ignored the explicitly stated "right to secede" which
several states had written into their ratification resolutions back in the 1780's when they accepted
the U S Constitution.
In theory, current political trends should reduce the influence of lawyers in elected positions, but if
history is any guide, the reverse could be true. America may soon be trading the current crop of
spendthrift pettifoggers for a new crop of focused, dissimulators prepared to lead this country to ...
who knows where. Is there another FDR, or Lincoln around the corner?
Steps the Individual Might Take Toward Reform
NOTE: These steps are designed for individuals not organized groups. If you are interested in organizing a group to pursue legal reform
goals, read the section entitled "Warnings about Political Organizing and Reporting" found elsewhere in this web site.
Step #1, know which office holders are lawyers and which candidates are lawyers. If needs be, call
the bar association or candidate's headquarters to get this information.
Step #2, in conversation and in personal letters let you friends and neighbors know which office
holders and candidates are lawyers. Do not send letters to people you don't know. Personalize your
letters, don't do mass mailings.
Step #3, never give money to umbrella political organizations, like political parties, it is impossible to
keep your money from flowing, at least in part, to some lawyers' campaigns. Give money directly to
non-lawyers who run for office and mention in your cover note that it is good to see a non-lawyer
running for office.
Step #4, tell every pollsters, or political fund-raiser, or political advocate who calls that you never
vote for a lawyer. These people are told to keep track of comments offered. Political consultant read
these comments and use them when making candidate recruitment decision in the next political
Step #5, write Letters to the Editor and phone "call in shows" commenting on the need for more
non-lawyers in public life and in the media.
Step #6, run for office against a lawyer. In the election make your opponent's training/occupation, as
a lawyer, an issue. Ask the voters - should a 'officer of the court' be running for this office? Does
your opponent have 'divided loyalties' among the three branches of government? Even if you fail to
win, you will be using the election process to educate the public; you will be planting seeds of doubt
that might bloom later.
Step #7, promote the introduction of a Citizen Initiative Petition at the Federal level. Initiative
Petitions could be used by the voters to remove Supreme Court Justices, pass laws, and/or amend
the US Constitution. Those States that have this process has added accountability to their
governmental system, particularly their courts. Only the most arrogant of judges rule against the
people's will, especially when the people have the power to remove him (or her) from office.
Step #8, read legal reform literature, books, and websites. The new magazine, Anti Shyster, or the
Gideon's Trumpet newsletter are good places to start. (For more information see the "About the
Author, Related Links, and Suggested Reading" page in this website.)
Step #9, when discussing these matters with a lawyer (or a pro-lawyer person) kept calm, be
systematic, start with the basics . You have been given an opportunity to educate someone. Hit three
points, 1) the founding fathers wanted a system of checks and balances; currently the checks on the
Federal Courts are broken and non-lawyer legislators are needed to fix them. 2) The eighth
commandment says "thou shalt not lie", but we have a legal system that calls for "countervailing
dissimulation (lying)" to work. The basic structure of our courts needs revision. 3) Costs are so high
average people can't use the system. To get two lawyers up to speed on the facts and then put on a
trial involving a disputed amount of $10,000 or $20,000 is economically unrealistic, so we need a
simplified system where only one lawyer is involved. REMEMBER - lawyers should not be scorned;
they should be pitied. Think of the scandalous ideas that were pushed on them in law school and the
immoral legal processes they must accept to remain in the bar association.
Step #10, write letters to party officials saying "I'm disappointed that your party is running so many
lawyers for high office. I like many of the programs your party supports, but I have a policy against
voting for any 'officer of the court' running for a legislative or executive position. "
Step #11, Begin refering to yourself as an "NL Voter" or "NL Republican" or "NL Democrat" or
"NL Reform Party Member" etc. NL means "non lawyer". (So, the meaning of "NL Republican"
would be "I'm a Republican but I don't support lawyers".)
Step #12, don't try to do it all yourself; recruit others to help do this important work. Share the
information in this website with them.
Should Priests (or Lawyers) Serve as Political Leaders?
In ancient Israel the priests were a special people set apart by God's revealed directives. The priests
were drawn from descendants of Aaron and were members of the tribe of Levy. They were not
allowed to own land or serve as civil or military leaders . They lived off the sacrificial offerings of
the people and served as judges in the more difficult cases. They were not allowed to marry women
of questionable background. They guarded the Ark of the Covenant, served in the Temple, and ran
towns of refugee where fugitives could seek protection before having their cases heard. (Over 1200
years after God directed this special status for priests in the Pentateuch, Christ was tried and
condemned by the priests at the home of Caiaphas, the high priest. It was Roman Law which
forbade the priests from carrying out their sentence before obtaining the approval of the Roman
authorities; that is why Christ had to appear before Herod and Pilot.)
In Medieval Europe, a similar situation obtained. Priests ran courts where a common man could
obtain a fair hearing of his grievance according to the Canon Law. The churches were "places of
refuge" where a fugitive could be safe until a proper Canon Law Court could hear his case. Priests
were a class apart. They did not marry; they took vows of chastity and obedience to the bishop and
Pope. Many even took vows of poverty. Most important, priests were not allowed to accept positions
of temporal leadership. No matter how "high born", priests were not authorized to serve as a king,
duke or baron. They might aspire to the office of abbot, bishop, cardinal or even Pope, but their
influence over the hearts and minds of the people rested on their special connection to God and their
special expertise in the area of faith and morals. (A vestige of these century old limitations was seen
recently. Even though priests and bishops have lost their special standing relative to the total
community, a few years ago, Rev. Robert Drinan, S.J., a U S Congressman from Boston, was forced
to resign his seat because the Pope did not want a Catholic priest holding a position of temporal
In America today, lawyers (and judges) serve these "priestly" functions. They are the arbitrators of
society's morals, providing guidance on such things as homosexual marriage, abortion, proper
places of prayer, etc. They run courts and represent fugitives seeing to it that they get a "fair"
hearing. They offer advice, formal opinion, and dicta about "right" and "wrong", seek the "truth",
and work in awe inspiring chambers from which they dispense "justice". However, in America the
lawyer-priest is also allowed to serve as both a civil or military leader, he is allowed to amass great
wealth, and there are no special restrictions on his personal life or behavior.
In earlier societies select people possessing these special powers where required to accept major
restrictions on the scope of their other activities. There were expected to live modestly with few
worldly goods or pleasures, to cultivate learning and virtue, and to put themselves at the service of
their fellow man. In America, however, this class of people uses its special status as a spring board
toward positions possessing greater honor, power, wealth, and worldly pleasures.
The priests of ancient Israel were directed by God's revealed word. The priests of Middle Ages were
directed by God's revealed word refined slightly by a careful, conscientious study of the God's plan
as revealed in nature (i.e. The Natural Law). Departing from this tradition, the modern American
lawyer-priests are mostly directed by their own intellects as formed primarily by America's
remarkable "values free" educational institutions, most notablly its law schools.
Proper Appellate Court Procedures Check Trial Court Errors
The judicial process has two great checks to correct errors and curb abuses of trial court judges.
The first is the jury which serves as the "trier of fact" in cases where one of the parties to a civil or
criminal action requests a jury. The second is appellate review where the rulings of the trial court
judge are subject to review and possible reversal..
When a jury verdict is issued on a case, the judges, both at trial and during Appellate review, limit
their activities to interpreting the applicable law and leave fact finding to the jury. When no jury is
involved, the judges at trial and during Appellate review make both findings of fact and draw
conclusions of law. This means that in judge tried case, also known as a "bench trial", the appellate
courts can review both the facts and the law.
The appellate review process is made more rigorous by the general requirement that an appellate
court that reviews the actions of a trial court is bound to issue a written opinion which carefully
reviews the important facts and applicable legal principles. Then it explain how the law should be
applied to the facts at hand. These opinions are generally published and serve as guide posts for
future litigants. This is the process by which the common law, constitutional law, and statutory
interpretation have developed over the centuries.
The process of writing of an opinion serves as a check on the appellate court judges who might be
lazy, or, somewhat more serious, inclined for friendship sake to favor one litigate over another, or,
even more serious, fearful of certain litigates or their lawyers hurting a judge's chance for
re-election, or, most serious, willing to take bribes. The reason the written opinion serves as a check
is quite simple. Each opinion is going to be read and analyzed very carefully for years and years to
come and the judge's reputation in legal circles will be injured by a poorly reasoned or flawed
opinion. Additionally, appellate court opinions are subject to review by State Supreme Courts
and/or US Supreme Court depending upon where the trial was originally held. Poorly drafted
opinions or opinions that conflict with well established legal principles are usually overturned by a
However, with the recent increase in the number of lawsuits and because of the "win at any cost"
attitude of many litigators, the appeals courts have seen a huge increase in the number of appeals
filed. They have responded by separating cases into two groups - those that get written opinions and
those that don't. This change has made life more livable for the appeals court judges who face this
flood of cases, but it reopens the door to the abuses mentioned above.
Today difficult cases that truly deserve consideration by the appeals court can now be pushed into
the "no opinion" category and thus ignored. The appellate court issues a one sentence opinion "we
see nothing wrong with the trial court's handling of the matter". The "hot potato" case is thus "dealt
with". The judges on the Appellate court have acted reasonably and there is no flawed opinion to
invite Supreme Court review.
Since judges are lawyers first and judges second, the most obvious examples of potentially difficult
cases are cases where a lawyer is a party particularly the defendant, and cases where a party to the
case is a pro se litigant, (i.e. a litigant who has chosen to pursue his case without the involvement or
expense of a lawyer). A second potentially difficult group of cases are cases where no jury verdict
was issued, that is cases where the entire matter was handled by the trial judge, that is cases were a
jury was not involved to act as a check on the trial judge. Of course, any case can be a "hot potato
case" for an appellate court depending upon the relative influence and prestige enjoyed by the
lawyers representing the parties and/or the parties themselves. The heat from a "hot potato" case is
heightened in jurisdictions where judges do not enjoy life tenure. Judges that have to run for
re-election, or who have to stand for retention, are necessarily tempted to handle certain lawyers
and litigants with deference.
The solutions to these problems are varied and numerous. Here are three possibilities:
1) Capacity increases are the most obvious. Many states have increased the capacity of their prisons
and have seen a decline in their crime rates as wrongdoers actually serve their full sentences behind
bars. In like fashion, an increase in the capacity of appellate courts would allow the reinstatement of
the old requirement that all cases get written opinions. This solution creates the related problem of
generating many more appellate opinions to publish, to analyze, and to preserve for later
generations to read.
2) A narrower solution would be to require written opinions in all cases where no jury verdict was
issued, or where a lawyer was a party to the case, or where a pro se litigate was a party to the case.
This rule could be implemented without increasing the capacity of the appellate courts.
3) The understandable bias of judges toward lawyers and against pro se litigants could be muted by
requiring that one third of all appellate court positions be reserved for non lawyers. This is a very
controversial proposal because it reduces the number of high paid, high prestige positions available
exclusively for lawyers. However, since appellate courts always operate in panels of at least three
judges, the lack of formal legal training on the part of the non lawyer/judges could be off set by the
presence of two lawyer/judges on each appellate panel.
The Adversary System Makes Perjury Somewhat More Likely
Legal processes depend upon the truth being available to the judge and jury. Without the truth a
trial is a futile enterprise, a fair result can't be reached. So witnesses take an oath to tell "the truth,
the whole truth and nothing but the truth". This is how it must be.
However, witnesses, including the parties to litigation, are often times hesitant to tell the truth
because of several real fears. These include: the fear of having the facts they divulge twisted and
mischaracterized, the fear that the facts will be divulged to the world with little or no purpose being
served and with little concern for legitimate privacy interests, and the fear that the facts might lead
to other litigation against themselves or other loved ones. Although society can never totally alleviate
these concern, society has a duty to fully explore ways that might mitigate these concerns.
Since the facts that witnesses divulge, usually during the discovery phase of the lawsuit, fall into the
"gentle care" of the lawyers involved in the case, it is now appropriate to look at the lawyers' duty
when conducting a lawsuit. Lawyers are not obligate to take an oath to "at all times characterize the
facts offered by witnesses in a balanced and fair way". Lawyers are not obligated to take an oath
"to keep all facts confidential except for the facts absolutely needed to prove their case". On the
contrary, lawyers reserve unto themselves the right to "characterize" the facts in whatever biased
or one sided way that they feel will favor their client. Lawyer reserve unto themselves the right to
introduce any and all facts into the record at the public trial regardless of relevance.
Lawyers also reserve the right to use facts discovered in one proceeding to hint at new lawsuits or
actually pursues new lawsuits later on. The criminal code allows a witnesses to refuse to testify
because of possible self incrimination, but in civil lawsuits that protection is very limited or
In day to day life, no sane human wants to even say hello to a person who has a reputation for
revealing embarrassing facts and/or twisting facts and/or hinting at future lawsuits. Such people are
generally shunned and avoided. However, when it comes to dispute resolution society expects
normal, sane humans to "tell all" in front of these kinds of people. The expectation is somewhat
The Clinton sex/perjury scandal is a most prominent recent example of this problem writ large.
Clinton was a witness who fully knew how vulnerable his consensual acts were to
mischaracterization by the Paula Jones' attorneys. Clinton was a witness who was well aware of
other molested women around who might hire Jones' attorneys to bring more lawsuits if the Monica
information got out. Clinton was a witness who did not want these damming facts on the public
record. The President is not a very sympathetic figure, after all he brought this largely on himself.
He had money and other resources to use to defend himself which few other people have.
Nevertheless, think of the emotions in his breast as he faced Jones' attorneys. That he cracked, that
he lied, is certainly understandable.
The problem then is to get to the truth while providing some modicum of protection from adverse
publicity, some protection from mischaracterizations by the attorneys arguing the case, and some
limited immunity from additional litigation. In Continental Europe, the civil justice system uses a
court appointed lawyer to gather the facts from all parties and witnesses. That lawyer is not
attached to either side of the case. The "fact gathering" lawyer does not have an axe to grind in the
outcome. This lawyer uses his judgement and leaves unnecessary embarrassing details out of the
public record at trial. This lawyer is not interested in using the threat of additional lawsuits to get
desired results. Since these court appointed lawyers enjoy a more benign reputation and because
their is discretion being exercised throughout, witnesses are naturally more willing to testify fully
Clinton's Polling Numbers Reveal a Troubled Legal System
During the impeachment process, President Clinton enjoyed strong support in the polls; 70%
thought he should remain in office. However, these polls also showed that more than 70% of the
people thought he did commit perjury and obstruct justice. Pundits attribute this disconnect to the
strong economy which they say redounded to the President's benefit. No doubt the economy did
help, but is that the whole explanation?
The conflicting poll results, taken at face value, would indicate that the people, looking at this
situation, were saying "it's all probably true but .... " But what? Since people judge things in light of
their own personal experience and apply their own sense of right and wrong; the common
experiences of most Americans with extramarital sex, perjury, and the "manipulation" of judicial
processes must be investigated.
Most adults in America have been a party to, or at least close to, a divorce case, a child custody
hearing, debt collection case, or some other civil case. People have seen others lie under oath, people
have been coached by lawyers to color facts in certain ways, people have seen results which were
widely disparate from one case to another. In criminal actions, particularly those involving
nonviolent crimes, like perjury, people have seen prosecutors selectively chose to prosecute one case
while ignoring others.
Turning to their lives outside of courtrooms - Citizens are asked to sign their tax returns under a
penalty of perjury. The government demands this even though the tax code is thousands of pages in
length and confuses even experts. To require such an affirmation, in the face of such complexity,
forces people to downgrade the seriousness of oaths and affirmations in other settings, including
courtrooms. But problems with the legal processes don't end with personal tax returns.
Americans, who manage business operations, find government regulations are constantly changing
and are too numerous to be completely learned much less totally followed. They see regulators
vigorously enforce some rules in some situation while giving superficial attention to other rules in
other situations. These highly regulated, law-abiding businessmen are confused by the volume of law
and regulation, the unending changes to these laws and regulations, the selective enforcement, and
the uncertain penalties. One compliance officer at a small stock brokerage firm was heard to say to
a newly arrived government auditor "Although we have tried, I knew we haven't followed all the
rules faithfully. There are just to many rules and they change too often for us to keep up. But we try
to treat out clients fairly. I know you will find violations. So all I can say is - this firm's future is in
your hands. I hope you will allow us to continue operating."
This confusion toward laws, regulations, and enforcement processes has been exacerbated by
regulatory, legislative, and judicial attacks on traditions, rituals, and even the sacred. The tradition
of posting the Ten Commandments and saying morning prayers in our schools was overruled by
judicial decree. The biblical injunction that divorce could only be granted for certain terrible sins,
like adultery, has been replaced with "no fault" divorce. Solemn vows and oaths taken before God
in a Church can now be overruled by a local judge who can terminate a marriage simply because a
husband or wife has lost interest in the marriage.
When someone like Judge Ken Starr makes an eloquent plea that no man is above the law or that
the rule of law must be applied to all men equally, the America people have to be forgiven for
replying with a "shrug" or a "yawn" or even a "Bronx cheer". Their personal experience is no
where near the standard that Judge Starr articulates so well.
So what steps must be taken to restore respect for the laws, regulations, and legal processes. It is
easy to rattle off a list: reduce the number of laws and regulations, stop making so many changes to
these laws and regulation, even out enforcement, make the laws compatible with religious values,
etc. However, such lists are mere wish lists until opposition groups are identified and neutralized.
In this situation the critical question is "what groups in society increase their power and wealth from
a proliferation of 'ever changing' laws and regulations that spawn lawsuits and/or regulatory
enforcement actions?" Did someone say judges, government regulators, and lawyers? Has the
opposition to reform been identified? What is the next step? ...... Sorry, answers to such momentous
questions are beyond the scope of this essay; however, there is now a clearer understanding of the
disconnection within Pres. Clinton's poll numbers.
Will Lawyers Gain Admittance to Heaven?
There are thousands of lawyer jokes. Many have a punch lines which imply that lawyers will not be
admitted to heaven.
These jokes are funny but the logic behind them is deeply flawed. God is perfect and all knowing.
Most theologians believe that each man will be judged by God in light of the moral principles that
animated and guided that person's conscience in life.
Theologians have devise "biblically based " guidelines for right behavior so that men by studying
their Bibles and these guidelines might have well formed consciences and know how to behave. But
theologians know that some men are "handicapped" because they have never been exposed to these
guidelines, or, though exposed to these guidlines, have been mislead by their elders into accepting an
alternative, false set of guidelines. Theologians would argue that these "handicapped" men will be
held to a lower (or at least a different) standard by God than the rest of mankind.
Lawyers, as pointed out elsewhere in this website, are a group of people who have been taught to
accept alternative guidelines of right behavior at an impressionable age by articulate professors in
gray flannel suits. Are lawyers to be blamed by God for accepting this alternative view of morality
when this alternative structure was impressed on them over a three year period, when they were in
their early twenties, by well spoken, well educated teachers? Of course not. Remember, law schools
generally do not reach out to the wider university for such courses as "ethics" or "history of legal
systems" or "the philosophy of legal systems". If they did, an alternative, counter veiling moral
ethos might compete for the law student's attention. No, law schools do not want competing concepts
of right and wrong to interfere with the process of "formation" that "makes" a lawyer.
The thoughtful reader might argue that because all lawyers have been exposed to correct morality in
their grade school, high school, and college years before they became law students, God will hold
them to the guidelines learned in these earlier years. Theologians would differ with this argument. A
conscience is a flexible thing. Just as a person can in adulthood learn right behavior and cast aside
mistaken beliefs, a person can in certain circumstances do the reverse, replace the "right" with the
"wrong". Since God has designed our conscience to favor the "right" and be resistant to the
"wrong", the latter process, replacing right with wrong can usually only be effected over many
months, or even years, in a very structured, intense environment (in this case, a law school). In
addition, this process of legal education would not be very successful if it challenged right morals
with a frontal attack, but legal education does not attempt this. Legal educators attempt to "add on "
certain moral exceptions which they say only lawyers can properly use. For instance, lawyers may
spin the facts in a courtroom to convey a favorable impression for their client and place the
opposition in a negative light, and government lawyers are allowed to secretly listen to other
people's conversations. These abborations are justified because lawyers are in a quest for "the
truth". The end justifies the means?
When Judge Starr speaks, everyone senses that he truly believes that he has done the right thing in
his pursuit of Monica and the President. Will he have a high place in heaven? If God judges Judge
Starr by the "lights of" Judge Starr's conscience the Judge will have a high place in heaven. When
Johnny Cockrane speaks, everyone senses that he truly believes that he has done the right thing by
making the jury focus of Detective Mark Ferman's use of the "n...." word ten years ago instead of
on O.J.'s use of a butcher knife on this ex-wife's throat.. Will he have a high place in heaven? If God
judges Mr. Cockrane by the "lights of" Mr. Cockrane's conscience then Mr. Cockrane will have a
high place in heaven In like fashion, every lawyer who truly believes in and faithfully follows the
moral precepts learned in law school has a good chance at a very high place in heaven.
Legalistic, Multicultural Societies v. Religious,
As modern societies have moved away from being traditional and religiously
based toward being multi-cultural, multi-ethic, and multi-racial, the rules for right
behavior that were biblically based are now determined by elected legislatures and
unelected courts. Without going into great detail, the list of examples abounds: no
fault divorce, legalized abortion, the recognition of homosexual marriage,
non-recognition of the confidential nature of communications between priest and
penitent, the ban on the display of religious writings such as the Ten
Commandments in public buildings, etc.
Decisions that used to be made by simple reference to biblical principles are now
referred to legislatures and courts. All religions practices and all cultural practices
are given "equal" standing. If one group wants the right to kill its unborn babies,
other groups are told they must tolerate the practice. Of course, the process has
not gone as far as one could image. Polygamy is not yet allowed, child
pornography is still banned, genital mutilation of young women is still off limits;
but one can even see these things being permitted in the not to distant future.
Legal minds are very creative; they can find "compelling" arguments to justify
nearly any behavior. In the past, if pastors and priests considered these arguments
ludicrous, then society's civil leaders would reject these legal arguments out of
hand. Today courts actually listen to this "lawyerly logic" and on occasion legalize
aberrations, while religious leaders stand by helpless to intervene.
The Kosovo conflict is very instructive. Seventeen modern western societies
(NATO) stand in opposition to a traditional society that has a strong attachment to
its religious roots. Serbia has a history of toleration; 300,000 Hungarians live
within Serbia in peace even though Hungry is a NATO enemy, 100,000 Croatians
live in Serbia even though Serbia just finished a short war with Croatia, until
recently over a million Albanians lived there in relative peace despite the existence
of a liberation force of ethic Albanians, the Serbs have shown all these groups
toleration based upon the understanding that the Serbian Orthodox Church will
determine the moral framework that the nation as a whole will follow. Other
religions are tolerated but they hold a secondary place. The Serbs memorialize
their tragic defeat at the hands of the Ottomans in 1389. They also celebrate their
later victory over the Ottomans in the 1830s. Both of these events took place in
Kosovo. In like fashion, the Serbs hold the city of Pec, also located in Kosovo, in
special reverence because their religion the Serbia Orthodox Church was founded
there. The Serbs have shown great toleration to groups living in Kosovo so long as
they understand that they are living in Serbia and that territorial independence is
not an option. The Serbs have always made it clear that Serbia is a very
traditional, very religious place
As the bombing began, Gen. Wes Clark, the American general running the NATO
operation, was asked to sum up the causes of the war. He said "The Serbs are
living in the past and we want to get on with the 21st century". NATO began the
bombing fully expecting the Serbs would exhibit the same dedication to principle
which modern man generally exhibits. In other words, they expected the Serbs to
give up in a few days. Instead the Serbs did not cave in, but they did expel many of
the Albanians who had been directly, or indirectly, supporting the liberation
A few weeks later, as bombs continued to fall, the New York Times decided to run
two war stories on the same page. One was about a Serbian Bishop blessing
thousands of believers in a square outside of a Church in Belgrade following Mass
on Easter Sunday. This article had a picture showing the bishop in all his regalia.
The other article had a picture of Sec'y of State Albright looking up in the air with
a puzzled look on her face and with her hand rubbing her chin. The layout man at
the newspaper had arranged things so that Ms Albright was looking directly at the
Orthodox Bishop. The message hit like a ton of bricks; Ms Albright somehow
vaguely sensed that the Bishop was an important factor in this war, but she
couldn't quite grasp why or how the Bishop had become so important.
Tony Blair and Bill Clinton are lawyers who are steeped in the adversary system
of law. They don't understand what makes Serbia tick; they don't care; they give
no credence to the Serbs' eloquent arguments from history, from tradition, and
from religion for their position; they demonize the leader of the Serbs as a modern
day Hitler; and most of all, they believe (as most lawyers in the adversary system
believe) that the side with the deepest pockets and greatest staying power can
usually bully the other side into submission regardless of the merits of the case.
American history is an interesting teacher. In the late 1850's Congress had voted
that Kansas would enter the union as a slave state and Nebraska would enter as a
free state, abolitionists in Massachusetts wanted both states to be free states so
they paid New Englanders to move to Kansas and agitate against southern settlers
who were moving into Kansas from Missouri. This led to sporadic fighting
between "border ruffians" (supported by southern sympathizers) and
"jayhawkers" (supported by northern sympathizers). When the war between the
North and the South started, Abraham Lincoln realized that the "border
ruffians", with their large base of civilian sympathizers, could be a major problem
for Union forces if the Confederacy sent experienced officers to train and lead
them. So Lincoln allowed Union generals to burn out the homesteads of all
southern sympathizers, to execute any man even suspected of helping the "border
ruffians", and to forcibly relocate the southern sympathizers to the southern areas
under nominal Confederate control. (Notice how the final two sentences could be
rewritten. When the war between NATO and Serbia started, Milosevic realized
that the KLA (Kosovo Liberation Army), with their base of civilian sympathizers,
could be a major problem for Serbian forces if NATO sent experienced officers to
train and lead them. So Milosevic allowed Serbian Generals to burn out the homes
of KLA sympathizers, to execute any men even suspected of helping the KLA, and
to forcible relocate the KLA sympathizers to the areas under the control of
Albania or near Albania.)
War is never pretty; but Lincoln is heralded by many as America's greatest
President, while Milosevic is condemned as an indicted war criminal. What has
changed? Probably the greatest change is the change in America. In Lincoln's day
Americans were steeped in the Protestant ethos and the stories of the
Revolutionary period. They loved their religions, their regions, their traditions,
their states, and their nation. Americans were ready to fight and die for their
"loves". They might not agree with the other party's views, but they respected the
other party's commitment. They could in the long run honor each other. Now both
Abe Lincoln and Robert E. Lee are considered heroes.
Today shallow men, like Bill Clinton, who have little commitment to anything save
their own pleasure and privilege are not capable of respecting other peoples'
heartfelt commitment to principle. When shallow leaders disagree with committed
people, these leaders label these committed people with epithets designed to gain
uncritial acceptance from a population whose attention span is measured in thirty
second sound bits. Since Milosevic's arguments are to difficult to seriously engage,
so he must be dismissed as nothing more than a "war criminal".
Why So Many Laws?
In Conflict with Each Other and Changing so
The basis of a civilized society is law. The law allows for standardized treatment of
men, the law allows people to plan their futures, the law gives people assurance
that wills, contracts, and trusts will be enforced, that certain behavior will be
allowed while other behavior (crimes and torts) will be punished, etc.
Five important characteristics of "the law" in a civilized society follow: 1) The law
must be of manageable size so the average man can learn the law without a lifetime
of study. 2) The law must be simple enough for the average man to grasp and
understand. 3) The law must be stable so men can, once they learn the law, live
their lives with great assurance that they know the law and are not violating the
law. 4) The law must be internally consistent so a man who follows one law does
not find himself violating some other law. And last, but not least, 5) "man made"
law must harmonize with the unchanging law of God.
Each of these principles needs to studied in light of America's current legal
Manageable size: The typical public or academic law library contains over 100
million pages (in excess of 100,000 volumes) of statutes, regulations, reported legal
decisions, commentaries, cross indexes, law dictionaries, legal encyclopedias, law
review articles, etc. However, most law libraries have found all these pages
inadequate. In the last ten years they have added "on line" access to great legal
web sites run by Lexis and West Legal Publishing. These web sites allow law
students and lawyers to do quick searches of all published material related to a
given topic. These web sites are expensive but if the right legal key words are
entered the results are very useful. Twenty to one hundred pages of information is
displayed on the screen. In an hour or two any journeyman lawyer will know all
that is worth knowing about some narrow area of the law. Of course, total or
complete knowledge is beyond human reach. No one not even the most dedicated
legal scholar can claim to know "all the law". In fact America's situation recalls
ancient Rome, just before its fall, when the laws began to multiply. A sage of the
late Roman Empire remarked "A corrupt society has many laws".
Simplicity: As the preceding description makes clear, mastery of legal jargon is
needed to figure out which key words will yield the right information during the
search. Additionally, mastery of legal jargon is needed to understand the
information that is ultimately displayed. Average people have first to learn a mass
of legal jargon if they want to understand the laws they live under. Appellant
Court judges will readily admit that they write their opinions for practicing
lawyers not average people. They do this to show where prior precedents are being
upheld and where prior precedents are being changed or clarified. Their opinions
only make sense if the reader is already familiar with the earlier opinions by other
judges baring on this area of the law. This all sounds well and good until one
realizes that these opinions are at least as powerful as legislated law in determining
what average people can and can not do. The real effect of these obtuse, carefully
crafted opinions written for the practicing lawyer, is to make the law unknowable
to the average citizen unless he is prepared to pay a lawyer to study the "law"
(court opinions) and then explain it in layman's terms.
Stable   Rarely Changed: Cicero and Aristotle felt that laws should be few in
number and seldom changed. Saint Thomas Aquinas went farther saying that
change in the law was in and of itself undesirable and that any change to the law
requires strong justification. Despite this wonderful advice from these great sages
of Western Civilization, in America change is the order of every day: (a) the
44,000 page tax law changes every year as does the 100,000 page rule book
governing Medicare, (b) the suspense calendar in Congress is always full of special
legislation designed to favor certain preferred groups, (c) general laws at both the
State and Federal levels are regularly passed which give regulators the right to
issue (and change) "implementing regulations" without any review by elected
legislators, and (d) the courts (Federal and state) regularly change, overturn, or
interpret legislation, regulations, and earlier court opinions. The volume of change
Internally Consistent: As the mass of law, court decisions, and regulation
increases, changes and grows in complexity, it is logical to expect that various
inconsistencies will occur. Of course, inconsistencies crop up all the time, in fact
this happens so often that Law Schools now offer whole courses on the
CONFLICT OF LAWS. If lawyers are confused think of the poor average citizen
who has to somehow function. An example might illustrate the problem: One
compliance manager at small stock brokerage firm had a question about what
stock research could be offered for sale over the internet. After talking to four
lawyers, he had four distinct "opinions" on the issue. After spending a thousand
dollars for legal advise and many hours listening to the advice, the compliance
manager didn't know what to do. The first lawyer suggested that the safest path
seemed to involve registering his firm in every state as a Registered Investment
Advisor (State RIA) and spending $15,000 per year and hundreds of hours filling
out forms. Of course, the laws of all fifty states would have to be followed even if
they conflicted with each other. The second lawyer suggested seeking a Federal
investment advisory registration and filing notices of Federal registration in the
fifty states with the same $15,000 of fees. This registration is available if more than
five customers show up to buy the research in each of at least 35 state in 120 days.
If the 5 customers in 35 states don't materialize then the Federal registration must
be withdrawn an individual state RIA registrations obtained. The third lawyer
suggested that the firm register as an advisor in the state where the firm was
domiciled and then get registered in other states if those states formally
complained, of course, these complaints might be accompanied by demands that
fines be paid. The last lawyer said that no RIA registration was needed (State or
Federal) saying the firm should depend on a federal exemption which allows
broker dealers (securities firms) to sell research as an incidental part of their other
activities. When a helpful friend suggested that a fifth opinion be obtained, the
compliance manager stared in disbelief, totally at a loss for words.
In harmony with God's Law: God is more intimently acquainted with man's
nature than any human. God did not create the biblical commandments to be
difficult or overly restrictive; He created them because he give men free wills, and
He knew which evil tendencies were likely to appeal to men. When lawmakers,
judges, and lawyers decided to place "manmade" law in opposition to God's law
they naturally put men in the difficult position of having to follow God or their
temporal rulers. Lawmakers and judges also create an unending string of "what
about this "questions that lead to greater and greater departures from God's Law.
The examples abound: homosexual rights, abortion, no fault divorce, excess
government social programs, driving prayer out of the classroom, etc. Each of
these has in turn leads to other question such as: Do homosexuals now have a
right to marry? Do mothers have a right to kill their unborn children even as the
child is sliding down the birth cannel ready to be born? Does no fault divorce
carry with it the right to force the innocent, injured spouse out of the home while
simultaneously forcing that innocent, injured spouse to pay child support for
decades? Does the massive growth of gov't social spending necessarily mean that
private and church charities will be striped of the tithe money their donors might
otherwise have given? Does forcing prayer out of the classroom indicate to our
youth that God is only a "sometimes" factor in their lives and that He is unrelated
to the central activity of their daily routine? It is obvious that each such step is
simply another step on a slippery slope away from God.
So why do lawmakers, lawyers, and judges violate these five obvious rules. The only answer that
makes any sense is self interest. Lawmakers want to be re-elected so they pass laws which pander to
man's baser instincts and give special advantage to large contributors. Judges at the appellate level
(and bureaucrats in the executive branch of government) are lured by the evil urge to become "little
gods". They put God's Laws aside and set off on their own to re-define right and wrong. Judges at the
trial court level become friendly with the lawyers that appear before them so they act in ways which
increase the power and/or wealth of these lawyers. Lawyers themselves are in need of income to
support their families in an aristocratic fashion, so they encourage judges and lawmakers to increase
the complexity of courtroom procedures and/or law in general so more "lawyer's work" is created.
Simple laws and simple court room procedures are not the stuff upon which grand legal fees are built.
Missouri v. Jenkins and Bush v. Gore
Violate Traditional American Values
The Revolutionary War was fought for certain rights and freedoms. The lists is etched in every
school child's memory: "no taxation without representation", "the right to vote", "establish a free,
democratic government" and "throw off the monarchy". These are so basic no American would
question these, or as Sherlock Holmes would say "its elementary my dear Watson". And yet in the
last ten years, the US Supreme Court has at least twice made a mockery of these basic tenets.
In Missouri v. Jenkins the US Supreme Court decided to support a local federal
judge who had ordered Kansas City's schools rebuilt with money from a property
tax increase which this judge also imposed. This tax was levied against the will of
the people and against Missouri Laws which says that no property tax increase
can be imposed without the approval of the voters. So un-elected people, this time
Federal judges, were once again imposing taxes on Americans. The Courts defend
themselves by pointing out that they just wanted pleasant schools for students to
attend to lessen the impact of racial bussing which was being implemented in
Kansas City. The judges felt that their desire for "new schools" justified judicial
violations of the the most basic American principle "no taxation without
In Bush v. Gore the US Supreme Court decided that manual review of some 70,000
ballots which machines had been unable to count would not be accommodated.
The court did not want to say outright "we won't allow the manual counting of
these ballots" instead the court required the use of an "objective standard" in
judging these ballots which, of course, is impossible to devise. Why is it impossible
to devise? The objective standard for judging these ballots was the standard
programmed into the computers (counting machines) which had counted these
ballots originally. These "machine based" standards had successfully processed
99% of the ballots, that left the 1% which remained uncounted. The variety of
notations, marking, holes, and/or indentations were beyond the machines'
"objective standardizing". These had to be studied by human beings to see if the
voter's intent could be determined. The Florida law, like the law in most states,
calls for one human to look at the ballot created by another human and make a
determination as to intent ... intent to vote for Bush, intent to vote for Gore, intent
to vote for a third party candidate, or intent not to vote at all. Since the
Revolutionary War, voting, despite the recent introduction of machines, has
basically involved a voter preparing a ballot and another person, a voting official,
looking at that ballot and deciding the voter's intent. The process is a wonder to
behold. In the hours before the US Supreme Court stopped the counting, C-SPAN
had been running a live television feed from the room where officials were
counting Dade County ballots. The process was orderly, most ballots were being
classified a "no vote for President", Bush was getting about two votes for every
one being added to Gore's total, and very few ballots were being set aside for
Judge Lewis, the local Circuit Court Judge, to review. The process was working
just as it has worked for two centuries, it was wonderful to watch, it was sad to
see it stopped. Just as Americans trust jurors to decide the facts in a criminal trial,
Americans have trusted officials, not machines, to ultimately determine the intent
Although the need for an "objective standard" was the
announced end in Bush v. Gore, the US Supreme Court had to
have some other end in view ... either they wanted an end to the
process, or they simply wanted Bush in the White House as
quickly as possible, or they wanted to punish VP Gore for the
President Clinton's earlier perjury, or whatever. We will never
know exactly, but the US Supreme Court was willing to crush the
idea that people have a "right to vote" and have their votes
counted. Again an important principle from the Revolutionary
War was sacrificed. In fairness to the five justices who prepared
this unsigned opinion, they realized their opinion was not well
founded. In the opening sentences of this opinion the Court stated
this opinion was not binding on future election contests across the
country. If they truly thought "objective standards" could be
established for manual recounts, they would have made the
"objective standards" test binding for all future election contests,
at least for elections affecting Federal offices. Instead they made
their decision binding on only this election and only on Florida.
As an aside, it is interesting to note that George II is the son of a
former President, George I. If he had did not have his father's
name, or his father's mailing list, or the goodwill of all people his
father had helped, or the support of his father's key advisors, it is
safe to say George II could never have defeated a Senator
McCain, a Vietnam war hero, in the primaries. Americans fought
a Revolutionary War to throw off a monarchy. Nevertheless there
was a concern that America might stop electing its Head of State,
the President, and instead fall back into an "American
monarchy". For this reason the founding fathers were thankful
that none of the more famous founders, save John Adams, had
male children. It is safe to say, the founders would be concerned
about this situation where the son of a former president parleys
his father's name and connections into a major governor ship and
then the White House, all in less than a decade after his father
departed from the Oval Office.
In closing, it seems appropriate that as America takes a large
step away from being a democratic republic, it does so without a
majority vote of the American people but rather with a 5 to 4
majority vote of the un-elected U S Supreme Court.
"Loser Pays" is a Partial Solution to the Flood of Frivolous
Many, some would say most, civil cases are filed with little or no prospect of
actually winning at trial. These frivolous cases are filed with little hope of actually
prevailing at trial; rather they are filed in the hope of extracting settlement offers
from the defendants.
Currently the system offers no effective counter that the defendant can use against
these tactics except (1) mount a defense which will cost thousands of dollars or (2)
offer to settle which will also cost thousands of dollars. The defendant, whether or
not he is at fault, is faced with a "lose/lose" situation.
Reformers have offered a solution to this problem. This solution is called "loser
pays". In other words if the defendant prevails at trail he is able to collect his costs
from the plaintiff. Alternatively, if the defendant loses at trial, the defendant pays
damages and the plaintiff's costs.
This "solution" to the problem is really only half a solution. Defendants who lack
the money to stand up to a well financed plaintiff aren't helped by the solution
because they can't afford the cost of getting through the process (i.e. discovery,
depositions, pretrial motions before the trial judge, the trial itself, post trial
appeals, etc.) In like fashion, "loser pays" posses an additional worry for the
worthy plaintiff, who knows that even good cases oftentimes fare poorly in the
midst of the jury selection tricks and cross examination theatrics found in the
typical American courtroom.
It is obvious that the "loser pay" solution has some value but won't be very useful
unless it is augmented and refined. There are two most important additions to the
process: (1) pre-screening by an officer of the court to determine if a case gets
"loser pay" treatment or not, and (2) capping of the dollar amount the loser has to
pay to the amount he paid his own attorney(s) or the amount the other side paid
their attorney(s) whichever is less.
Pre-screening for "loser pay" designation would cause cases to be segregated into
"those that appear worthy" and "those that appear to be frivolous". Once a
plaintiff got the "loser pay" designation, he would know that his evidence did not
appear strong enough to prevail at trial. If a plaintiff escaped the "loser pay"
designation the defendant would immediately know that the plaintiff's case was
fairly strong. Defendants would be more inclined to settle with the "non loser pay"
Capping the dollar amount that the loser would pay the winner's attorney seems
only fair when the disproportionate expenditures by parties is considered. One
party might be using a relative who is fresh out of law school and is working for
$40 per hour, while the other party is using a big name firm where partners
charge $300 per hour.
When American lawyers hear about pre-screening for "loser pay" designations in
civil cases, they get very upset. The idea of having the facts of the case investigated
by an officer of the court before it is even formally filed "smacks" of the European
Inquiry System of civil justice where officers of the courts routinely investigate the
facts of a civil dispute. With objective, legally trained court employees
investigating these matters early on in the process, Europeans have learned that
they don't need to hire attorneys at all.
In America, a huge portion of the legal profession depends upon unchecked civil
litigation to support itself. Some of these lawyers are plaintiff's lawyers, some are
defense attorneys, but most depend upon the fear of litigation to force clients into
their offices. These clients become convinced they must have all contracts, wills,
deeds, trusts, marriages, funeral arrangements, financial plans, stock purchases,
etc. - discussed, reviewed, drafted, negotiated, or finalized at their lawyer's office.
Because of unchecked civil litigation, Americans have lost all sense of proportion
about these matters.
Lawyers Played a Major Role in Corporate Mis-Deeds
In the spring and summer of 2002 America went through a series of painful
disclosures about corporate misdeeds. The first lawsuit to grow out of these
disclosures was a fraud charge leveled at Authur Andersen the CPA firm that
certified ENRON's financial statements. The fraud charge was based mainly upon
certain document destruction activities and the additional failure to adequately
disclose the extent and nature of ENRON's off balance sheet "special purpose
The trial was expedited at Andersen's request so the cloud over the CPA firm
might be lifted. Andersen was confident their accountants had not misbehaved.
The trial was colorful with Andersen's lawyer providing a spirited defense. The
case went to the jury around June 1st and all observers expected a quick verdict.
After all, the jury only needed to find one Andersen employee who had acted
intentionally to deceive shareholders and the public about ENRON's financial
condition. But a quick decision was not forthcoming. The jury deliberated for
many days and finally came back with a guilty verdict. They said they had found
one and only one Andersen employee who had acted to intentionally deceive the
investing public. That employee was not an accountant; it was Nancy Temple, a
Harvard trained lawyer at Andersen who had advised the audit team at ENRON
about what information they should disclose and what documents they should
destroy. So Andersen was right, their accountants had not misbehaved, but one of
their lawyers brought the firm down.
After the jury's decision the legal fraternity rallied around Ms. Temple saying the
jury was wrong to judge her behavior with the same standards that the legal
system usually reserves for judging non lawyers. The legal fraternity reacted like a
stuck pig - squealing to the world "how dare you hold one of us to such a high
standard of behavior. Don't you know it is our job to guide our clients through the
gray area between what is clearly moral and what is clearly illegal. Lawyers
simply can't be found guilty of fraud for doing our job."
The disclosures at ENRON had caused a massive review of what public accounting
reforms had been proposed in recent years. Investigators wanted to know what
had happened to those proposals. This review brought to light the fact that
another lawyer, Harvey Pitt, had been for years a very effective advocate/lobbyist
for the AICPA the trade association of public accountants. Pitt had successfully
argued for minimum of regulation on that industry. Unfortunately Pres. Bush had
appointed this same Harvey Pitt to head up the Securities and Exchange
Commission. So although Mr. Pitt began making tough noises about regulating the
public accounting industry, his proposals were regularly shown to have
"exceptions" and "loop holes". The cries for Mr. Pitt's resignation, which had
started among Democrats, began to come from Republicans as well.
Then, in July 2002, after the WorldCom disclosures were added to the ENRON
disclosures, Pres. Bush traveled to NYC to give a speech on corporate honesty.
With Harvey Pitt in trouble and Nancy Temple already fingered as an agent of
fraud, Bush stood in NYC and demanded that America's schools of business
strengthen their ethics programs. But for some strange reason, Bush did not
mention that America's law schools might want to strengthen their ethics
programs as well.
This selective outrage, where everyone is a bad guy except the lawyers, has got to
Traficant Case Gives Glimpse of Corrupt Legal Process
Rep. James Traficant (D - Ohio) is a colorful, maverick Congressman from the
Youngstown area. He formerly served as a Sheriff and had extensive dealings with
both the mob and the FBI. He is known for his earthy humor (some say bathroom
humor) and his memorable one minute speeches on the House floor. Traficant's
specialty was speaking truth to power. He criticized the IRS for its high handed
way of taking people's assets before they were found guilty of anything; he also
pointed out the undo influence that Israel and its friends enjoy in the US Congress.
The last time Congress organized itself, Traficant was the only Democrat to vote
for the Republican Dennis Hastert for Speaker. The Republicans naturally
expected that Traficant would soon be switching to the Republican party, but he
stayed a Democrat. This maneuver left Traficant in no man's land. The Democrats
refused to give him any committee assignments. The Republicans couldn't.
But back in Ohio things were even more interesting. In the spring of 2002, James
Traficant was convicted in Federal Court on ten criminal counts, these included
such things as taking bribes from constituents, using his office to solicit favors, and
forcing a couple of his office employees to kick back part of their salaries to him.
Traficant handled his own defense and this combined with his maverick
personality put him at odds with the trial court judge on several occassions. The
jury found him guilty, and he will be sentenced in late July 2002.
Traficant's guilt is impossible to determine from the "reliable" facts on the record.
Traficant vehemently denies doing anything wrong, and there is a complete lack of
hard evidence against him. Traficant was convicted exclusively on the testimony of
others. All the key witnesses had their own problems with the government, in each
case they (or a close relative) was in trouble with the government on other charges.
There were no video or audio tapes catching the Representative in any illegal act,
there were no documents pointing to his guilt, and there were no Traficant
fingerprints on anything. In recent Congressional bribery cases the FBI has relied
on video and audio tapes which have documented the crime(s), but in this case
there are no such tapes even though the FBI built their case over a long, six year
Prior to the trial Traficant asked to have the case tried in his district at the Federal
Courthouse in Youngstown OH. This courthouse serves the area where the crimes
were supposed to have been committed. The judge denied this request and moved
the trial to Cleveland OH. Further the judge refused to allow any prospective
jurors from the Youngstown district to be considered for inclusion in the jury
pool. Later, after the trial ended, it came out that the judge's husband's law firm
was representing one of the chief witnesses against Traficant, a fellow named J J
Cafaro. The judge should have recussed herself from the case but failed to do so.
In opposition to this, Traficant produced nine telephone tape recordings which he
had made while speaking with various witnesses against him (or people close to
these witnesses). Traficant also obtained affidavits from various parties saying
they had first hand knowledge that the prosecutor, a lawyer named Morford, had
pressured witnesses to lie. These tapes and affidavits revealed that the US
Prosecutor had threatened the witnesses with personal prosecution for various
federal crimes unless they told a tale created for them by the prosecutor. The
Congressman attempted to play these audio tapes and present these affidavits at
his trial, but the judge denied his request. Additionally he wanted to call witnesses
that would counter the testimony of the prosecutor's witnesses, the judge generally
denied these requests as well. The judge allowed Traficant to cross examine the
witnesses against him but without the tapes, affidavits, and/or countering
witnesses, Traficant was unable to break the witnesses away from their stories.
Traficant asked to question the FBI agents who had done the leg work building
the case from 1996 to 2001. The judge refused to allow him to question these law
officers. Not surprisingly the jury convicted Traficant.
Once the conviction was in place, the House of Representatives' Ethics Committee
took up the question of whether or not to expel Rep. Traficant from the House of
Representative. Even though the House of Representatives is less than 50%
lawyers, this investigating committee was nearly 80% lawyers. This Committee
did allow Traficant to present witnesses, and they allowed him to enter his nine
audio tapes into the record. However, there was no attempt to play these tapes
and/or question Traficant about them.
One of the witnesses that had not testified in Cleveland did testify in Washington.
This witness, named Richard DeTore, said he had for years worked for and
reported directly to J J Cafaro, one of the people who had testified against
Traficant in Cleveland. DeTore, said that Traficant had behaved properly during
his many encounters with Traficant. DeTore further said Prosecutor Morford had
detained DeTore for nine hours a year ago and put pressure on him to give false
testimony against Traficant. DeTore's attorneys had also been threatened. Mr.
DeTore also testified that Cafaro had given false testimony against Traficant
because Cafaro had been caught giving false testimony in a earlier Federal trial on
a different matter and wanted to avoid prosecution on that charge. Traficant
produced letters from DeTore's attorneys saying they were outraged by the
prosecutor's behavior. Mr. DeTore noted that Prosecutor Morford; was so mad at
him that he had brought a frivolous Federal Prosecution against him. The case so
far has cost DeTore several $100,000 in legal fees. The lawyers letters also
supported DeTore's statement about the Federal case being frivolous. At this point
it was clear that the US Prosecutor had played "hard ball" to get the testimony he
wanted against Traficant.
The week of July 22, 2002 was the time when the Ethics Committee should have
stepped in, put a hold on the Traficant expulsion, and take a hard look at the legal
processes being employed back in Ohio. But the Committee decided on a different
course. They chose to recommend expulsion and scheduled no additional
investigations. Evidently the lawyers on this committee did not believe the evidence
before their eyes, or more probably they felt it was not the job of the legislature to
bring the judiciary and Justice Dept. to heel. In America lawyers are taught that it
is the judiciary and the Justice Dept. that brings the legislature to heel, not vice
versa. These lawyers on the Ethics Committee had been thoroughly socialized into
the law by their law school professors. Late in evening on Wed. July 24th, the
whole House of Representatives voted to expell Traficant. Over four hundred
voted to expell, eight Representatives voted "present", there was only one vote
against the motion.
Be clear about this current situation. Traficant's guilt or innocence is yet to be
properly determined. The corrupt processes of at least one US Prosecutor has been
exposed, and the Federal District Court in Cleveland has at least one judge that
needs to be removed.
Why Does America's Criminal Justices System Produces Bad
Results So Often?
To convict an innocent person or to free a guilty person are tragic results. It is
particularly tragic when the guilty person goes free only to commit another crime
or the innocent person is sentenced to either death or a period of very long
O J Simpson's innocent verdict was the talk of the country for several months
after it happened; less discussed was the situation in Illinois where a dozen death
row inmates where found to be innocent by virtue of newly developed DNA
testing. The situation in Illinois was so alarming that the Governor had to suspend
all executions indefinitely; no one had any confidence that justice had been done in
Most recently the Avila/Runnon murder case has attracted national attention.
John Walsh, the host of America's Most Wanted, a weekly tv show, was on Larry
King Live on Aug. 8th, 2002. In the course of the interview King remarked that
Avila, the pervert who killed Samantha Runnon, had been tried earlier and
acquitted of molesting another child. Earlier in the week King had interviewed the
mother of that molested child. She had explained how Avila's defense lawyer had
managed to win acquittal for Avila.
Walsh remarked that the Avila case is not unusual. Walsh went on the say that
many molesters are able to win acquittal on their first offense or even their first
two. He pointed out that the criminal justice system is flawed in a couple of major
ways. First it allows prosecutors to plea bargain away major charges down to
lesser charges, in some cases much lesser charges. Second, if the case goes to trial,
it oftentimes pits a relatively unskilled prosecutor against a very skillful defense
attorney particularly if the accused has access to some money. These flaws in the
system oftentimes yield very aberrant results.
Walsh had, in this exchange with King, put his finger on two of the major
problems with America's criminal justice system.
Fortunately, the world has produced a criminal justice system that gets rid of these
flaws and gets very accurate results most of the time. The rest of this essay is
devoted to explaining how this alternative system works.
The system that has performed so well is the Criminal Justice system found in
continental Europe. In this system a three step system is used after a crime has
been committed. First investigating prosecutor is sent out to work with the police
to ascertain the facts and identify possible suspects. As the inquiry progresses this
prosecutor presents a complete review of the facts to an older examining judge
The examining judge will call the suspect in and ask the suspect questions. The
suspect may be represented by counsel if he chooses and he may answer some
questions or not answer other questions as he sees fit. This examining phase is
closed to public. At the end of this phase, the examining judge will either let the
matter drop or call for a trial to be held on the most appropriate charge.
If a trial is held, the trial will be before a jury and it will be open to the public.
Again the suspect is allowed to have counsel and he may pick and chose which
questions he will answer. At the end the jury must decided the suspects guilt or
innocence. Even if the suspect and the police have agreed to a "plea bargain" the
trial must be held and the result certified by the jury. It is not uncommon for the
jury to refuse to go along with a deal which the suspect and the authorities have
worked out in advance.
Why does this system yield better results than the common law system found in
America? (1) There is the involvement of a judge early in the process. In America
the decision to go to trial is handled by a prosecutor presenting only evidence
favoring a conviction to a grand jury with no involvement of a judge. This is to be
contrasted with the European System where in the "examination" phase an
experienced judge questions the suspect and weighs all evidence pro and con
before deciding whether or not to go to a jury trial. (2) The plea bargain is
essentially eliminated in the European system, the suspect has to be tried before a
jury for the actual crime committed. (3) The European system has essentially a
two trial system for every crime. The first trial is before a trained judge, the
second trial is before a jury of the suspect's peers. The system essentially requires
that the suspect be found guilty at both stages.
Obviously, mistakes can be made in any system. However, a system where both the
common everyday sense of a jury and the long time experience of a trained judge
get to evaluate the evidence and the suspect has to be the preferred system.
So why doesn't America adopt such a clearly superior system. There are probably
three reasons: (1) The system gives more power to juries and judges and takes
power away from everyday lawyers such as criminal defense lawyers and
prosecutors. In a proceeding where the judge is pro active inquiring into the
matter and sifting through the evidence the defense counsel is no longer a
actor/orator dazzling the jury but rather a person who sees to it that his client's
evidence gets full attention. In like manner the hard nosed prosecutor running for
re-election becomes the fact gathering prosecutor simply inquiring into things and
gathering facts to present to the examining judge. (2) If the criminal justices
system from continental Europe is adopted American lawyers are fearful that this
country would also adopt the tort system from continental Europe. This would be
a major change in how lawyers operate in America. The European Tort system is
far cheaper than America's system and in most cases avoids the need for a trial.
Judges are more heavily involved and lawyers are much less involved. This means
that high paid private attorneys are reduced in importance while judges who are
on the public payroll are more important. All in all the European tort system is
cheaper and faster than the current American system. (3) The American legal
process is very bound up in tradition. When asked "Why do you do it that way?"
an American lawyer oftentimes answers with "But you see we have always done it
that way." This attitude makes it difficult for member's of America's legal
fraternity to accept change.
NOTE: This essay was written by referring regularly to Chap. 17 of John H.
Merryman's book The Civil Law Tradition: An Introduction to the Legal Systems
of Western Europe and Latin America. (Second edition 1985) Published by the
Stanford University Press. The final paragraph in this chapter reads as follows:
"For those readers who wonder which is the more just system, the answer must be
that opinion is divided. Recently a Harvard professor wrote a book charging
American criminal procedure with 'denial of justice' and advocating reforms along
French lines. Other Americans have sought to prove that our system is fairer to the
accused. The debate is clouded by ignorance of the law and practice in civil law
nations and by preconceptions that are difficult to dispel. In the end the statement
made by an eminent comparative scholar after long and careful study is instructive:
he said that if he were innocent he would prefer to be tried by a civil law court, but if
he were guilty , he would prefer to be tried by a common law court. This is, in effect,
a judgement that criminal proceedings in a civil law world are more likely to
distinguish accurately between the guilty and the innocent."
Beware! When your in the middle of a lawsuit, your lawyer my
suddenly hit you with the "settlement squeeze play"!
A civil lawsuit is many things. For a plaintiff it is a way to justice. For the
defendant it is a way to show that the plaintiff's estimate of the damages done or
injuries sustained are too high. But for the lawyers a civil suit is a way to generate
The civil suit, in the common law system, comes to a head during "the trial". Here
the parties have their arguments heard and evaluated by an objective entity (a
judge or jury) that "decides" the case. This culmination is a very desirable thing
because it gives each party a sense of relief and satisfaction even if they don't get
what they want. There is a cathartic experience to having the case heard and an
objective decision rendered.
Unfortunately, lawyers are just as strongly drawn away from going to trial. A trial
means intense preparation: deposing opposing witnesses, coaching witnesses about
there testimony, preparing opening and closing statements, going through jury
preparation, preparing briefs on the points of law involved, etc. The tension
between the lawyer's desire not to "go to trial" and the parties desire for the
"cathartic experience" of getting a trial verdict, oftentimes manifests itself in the
"settlement squeeze play" (hereinafter the "SSP").
The SSP can have several elements and litigant should be attune to his lawyer
introducing these elements into the discussion of the case:
1) The quality of the client's case is not as strong as it was earlier. When the case
was first presented to the lawyer the case "looked good"; the lawyer was anxious
to "help you". Now that the trial is approaching the "case has major problems" or
"it looks weak here or there".
2) The opponents case which was formally "really just a frivolous case" is now
3) The crowning element (or blow) is the revelation that "the cost of going to trial
will be 2, 3, or 4 times" what was originally planned. The impact of this
"revelation" in the thirty, sixty to ninety days before trial is oftentimes explosive.
The litigant has already paid several tens of thousands of dollars and has been
budgeting a like amount to finish things up. Suddenly the economics of the lawsuit
are changed completely. Large amounts of additional money have to be raised.
4) The icing on this cake is the lawyer's demand that the additional money be paid
before trial. This puts additional pressure on the client to "settle or else".
5) The lawyer doesn't execute 1, 2, 3, and 4 against his client until he has the other
attorney on board ready to slam the opposing party with similar tactics thus
forcing a settlement.
The legal fraternity in America is proud of the fact that a high percentage of their
clients "settle" their cases. This pride should be colored with a large dose of shame
when one considers the tactics being employed to get these settlements.
There is one obvious protection against the cost escalation tactic and the pay
immediately tactic mentioned in items 4 and 5 above. A pre engagement letter
between the lawyer and client, (1) capping the total cost and/or (2) spelling out
when unexpected payments would be due, would help a lot. Any experienced trial
lawyer is going to resist such a letter so a litigant might have trouble getting a
qualified litigator to represent him if he required such a letter. If Congress or the
State Legislatures required that such letters be prepared for every engagement,
the litigators would have to agree to them.
The Well-Structured, Frivolous Lawsuit is Awesome
The bringing of a lawsuit should be the last step in the process of settling a dispute.
St. Paul, in Chapters 5 and 6 of his first letter to the Corinthians, says that if you
have difference with your neighbor you should first try to settle it between
yourselves and if that fails you should get an elder from the chuch to review the
facts and decide the matter, only as a last resort should the parties go to a court of
In America today, many people will file a lawsuit at the drop of a hat before they
even bother to inform the other party that they are upset or feel aggrieved. In fact
many of these lawsuits are totally without merit. They are filed as a way to get the
other person to pay some money just to get the lawsuit to go away. Such lawsuits
as little more than "blackmail".
The reason such frivolous lawsuits work is the high cost of civil litigation. A person
who is faced with a lawsuit has to hire an attorney to mount a defense. This is very
costly. Lawyers can cost $150 or more per hour and the defense of a lawsuit, even
a very simple lawsuit, is going to cost at least 80 hours or $12,000.
Suddenly the person has who is defending against the frivolous lawsuit is prepared
to consider paying say $10,000 to settle the lawsuit rather than pay the $12,000 to
a lawyer to defend the case. The math and the logic is irrefutable. Lawyers say it is
always better to settle rather than try the case if the cost of going to trial is more
than the cost of settling.
The structure of a frivolous lawsuit is important for the "blackmailer" because the
structure will determine the cost of defending the case and indirectly the probable
settlement amount available. To better understand this point, an example follows
which shows two different ways to structure a frivolous lawsuit given a
hypothetical fact pattern.
Assume there is a corrugated box manufacturing company that is owned 40% by
the company's chief salesman, 40 % owned by the plant manager, who is also the
President, and 20% owned by the other employees via an ESOP plan. Further the
company has an appraised value of $1,000,000. This value being mostly
determined by the company's book of business rather than its plant and
equipment. One day the chief salesman announces he is joining a competitor and
wants to sell his 40% ownership interest and thinks his interest is worth 40% of
$1,000,000. There are some conversations with some employees but no agreement
is reached. The plant manager and the other employees point out that his
departure will put the company in a difficult situation; they say it is impossible to
determine what his stock is worth until the company is stabilized perhaps in year
The chief salesman realizes that the value of the company is going to drop as he
gets more and more customers to switch their business to his new employer, so he
visits with three different lawyers to inquire about his options. The first lawyer
points out that he really doesn't have a case against anyone and advises him to
hope that his former employer prospers so his stock increases in value. The second
lawyer says that if he is willing to testify that the conversations he had about
selling his stock had risen to the level of an oral contract then he could sue for
breach of contract and compel his old business associates to buy his stock at the
$400,000 price; this lawyer further advises that the case is very weak since it
involves an oral rather than a written contract, but the case might induce the other
side to settle for $15,000 or $20,000. The third lawyer suggests the same breach of
contract lawsuit that lawyer number two suggested but he goes further and
suggests that additional counts be added to raise the cost of defense and thus
increases the chance for a quick, generous settlement. The additional counts the
third lawyer suggests are fraud for failing to honor the oral contract, a count
against the company claiming the company was mismanaged and needed to be
dissolved, and a count against the president saying he had to reimburse the
company for injuries he caused the company through his mismanagement.
This final lawyer explains the logic of his suggestions. First, the fraud count when
added to the breach of contract count allows the plaintiff to request both actual
and punitive damages because fraud is an intentional tort and thus eligible for
punitive damages. Second, the corporate dissolution count forces the company to
hire an attorney other than the attorney representing the employees being sued
under the breach of contract/ fraud count; the second count also allows the
plaintiff to drag in any and all facts about the way the company was run over its
multi-year history; these facts can be spun any way the plaintiff wants in his initial
pleadings thus forcing the corporations' attorney to spend time familiarizing
himself with all these facts and the company's explanation of why things happened
the way they did. All this legal research into these facts is very time consuming,
very expensive. Third, the count demanding that the company's president make
restitution to the company requires that a third attorney be hired to represent the
The final lawyer goes on to point out that this multi count, multi-defendant
approach has the additional advantage of compelling the three attorneys on the
other side to spend many hours simply communicating with each other as they
prepare their defense. The simple breach of contract lawsuit suggested by the
second lawyer might take $10,000 or at most $25,000 to defend and therefore
might logically lead to a settlement of $10,000 or $20,000. However, the multi-
count, multi-defendant approach will easily carry the cost of defense up over
$150,000 perhaps to $300,000. If the desired settlement amount from the frivolous
lawsuit is in the $400,000 area the only approach that holds any chance of success
is the third lawyer's suggestion.
In the typical lawsuit there is heavy expenditure in the first month or two by both
sides. The level of expenditure drops down until the trial date approaches, when
the rate of expenditures rise dramatically. The exact percentages in each phase are
hard to state exactly, but a rule of thumb might be 25% in the first six weeks, 20%
in the period from initiation till the trial phase and 55% during the ninety days
leading up to and through the trial. Since no lawyer is going to suggest a settlement
until he is familiar with the facts and since the preferred strategy in a frivolous
lawsuit case is to file the lawsuit and then discuss settlement, the typical frivolous
lawsuit situation has seen about one quarter of the total cost of lawyers expended
before settlement negotiations get underway. In the above example the defendants
would likely have $40,000 plus into legal bills before the three lawyers handling
the defense would feel comfortable discussing settlements.
The reader, who has a strong sense of right and wrong, might find himself
disgusted by the the forgoing. This reader should remember that the frivolous
lawsuit has one strong redeeming quality. Social and political commentators, such
as deTocqueville, have pointed out that advanced societies need an aristocracy to
function properly. In America, the aristocracy is largely centered in legal
establishment. This aristocracy needs to be supported and the frivolous lawsuit,
for all its other faults, is a very effective way to transfer dollars from the wealth
holding and wealth generating class to the legal/aristocratic class. So even a most
distasteful process can have within it redeeming qualities.
Information Systems Specialists Might Re-Design the Legal
All systems require period adjustment from the outside so that these systems don't
enter into destructive repetitive behavior that ends up destroying both the system
and the people associated with that system. This truth applies to mechanical
systems such as air conditioning, heating systems, automobiles, and airplanes. The
outside intervention occurs most frequently through the maintenance process and
less frequently through the re-design/replacement process which brings new
technology and better design ideas into usage. In individual human beings the
daily maintenance is handled through feedback from friends and family members
who comment on behavior that might be improved, such as a change of diet or
getting a haircut. However, even human beings need major adjustments
occasionally such as a religious retreat, enrollment in AA, or open heart surgery.
The legal system is similar to every other system it needs to be improved in small
ways regularly, and it occasionally might need a major overhaul. Is the legal
system currently in need of a major overhaul? Are the right people with the right
experience and education in place to perform the overhaul?
A quick look at the facts reveals that a major overhaul is truly needed. Court
administrators report that only 5% of American households possess the necessary
resources to carry a typical civil lawsuit through from initial filing to trial. The
governor of Illinois was so dissatisfied with the criminal process in his state that he
commuted all death sentences in his jurisdiction. O J Simpson was found not guilty
because the jury selection processes used in America are deeply flawed. Chief
Justice Brennan said most lawyers representing clients in trials are not qualified to
do trial work. A Catholic priest was recently asked if it immoral for a legal
profession to perpetuate a civil legal system that is so costly only 5% of the people
can afford to use the system; the priest said that society must provide an
affordable way for people to resolve their disputes and it would be immoral not to
change such a system. It is clear that a major overhaul of the legal system is
The next question is finding and empowering people who can perform the major
overhaul needed. Legal systems are basically information flow systems with
decision points embedded in the information gathering and information refining
process. America is blessed with a relatively new speciality called "information
systems analysis". These people are trained to investigate different information
gathering techniques, information editing and verifying processes, and the setting
up of decision points where properly gathered and verified information is
presented to qualified decision makers for decisions or guidance so the system can
either finish up or move on to the next step. Information System Analysts are
trained to look for cost efficient and time efficient ways to get the system to do its
tasks. They are also trained to investigate standards or bench marks which
decision makers can refer to when making their decisions. The use of standards
and bench marks is required to give the decision making a predictable quality.
Every American business, the US military, and most foreign organizations use
these analysts to establish and improve their information systems.
So what would an Information Systems Analyst do if asked to improve Civil Court
procedures in the U. S. The process would begin with a breaking down of the
procedures to its component parts followed by detail analysis to determine what
parts are essential and what can be changed or combined or eliminated to improve
time and cost efficiencies. Then comes the establishing of standards to aid the
decision makers (judges and juries) in their determinations. Finally comes the
process of synthesis where the component parts are reassembled into hopefully a
better, quicker, and cheaper system.
An Information Systems Analyst would look at how certain tasks are handled in
the U.S. today but he might also look at how those aspect of the system were
handled in other countries as well. He would consider the use of modern telephone
conferencing equipment, computers, pert charts, decision tables, etc. (1) He would
consider the costs in time and money of certain common techniques and see if
cheaper, better ways existed to do such things as document discovery or
depositions. Depositions might be eliminated by having a judge's clerk simply call
each witness, read them the petition and defendant's response paragraph by
paragraph and ask them to comment on what they heard - modern transcription
equipment could put the witness' comments in italics right behind or next to each
paragraph of the initial filings. (2) With regard to the applicable law, perhaps a
standardized Lexis search with specially formatted printouts could use the facts
from the initial petition and defendant's response to inform the judge and parties
on the applicable law thus eliminating the need for expensive, closely reasoned
briefs by counsel on the applicable law. For instance, if the petitions says "fraud"
supported by certain allegations and the respondent say "but consider these facts
as well" the special Lexis search would find all the cases where fraud was charged
and certain facts were present. The results from those cases would be the
applicable standard of law in this case. Of course, all this would lead to an
eventual trial where the facts would need to be presented to a jury or judge for
decision. (Note: A court sponsored Lexis search and witness interviews likely
would uncover applicable case law and relevant facts which neither side in the
lawsuit might chose to present to the jury or judge.)
In the preceding paragraph, the analyst would be trying to design a quicker better
system which kept the adversary system but where the initial steps in the processes
where simply expedited via the use of modern information processing technologies.
A more through analyst might look into legal systems in other countries, for
instance in much of Europe all the information gathered in the information
collection process is summarized by an employee of the court into a report which is
then given to a panel of judges for their decision. The panel acts as both judge and
jury and makes their decision without the cost of a actual trial.
The forgoing approach offers great promise for rationalizing our civil justice
system. What barriers exist to implementing such an approach? The largest
barrier is the legal profession which has great love for traditional process and deep
skepticism for change in process. Lawyers feel "very qualified" to tell others how
to operate their business affairs but are loathe to accept direction from outsiders
on the how best to run legal affairs. Additionally, there is the question of money. A
more efficient, more accurate legal system would tend to reduce the billable hours
in a lawsuit and that would make final adjudication of cases more available to
average citizens who are today cut out of the process by the high cost of litigation.
Rich people, who today use frivolous lawsuits filed by very talented lawyers as a
way to brow beat middle class people into accepting their desires, would be less
able to use their wealth to manipulate the justice system because the people of
moderate means would be able to afford litigation and would feel the results will
be more likely to be correct regardless of the legal talent on the other side.....
However, cutting billable hours out of a lawsuit is not a goal which many lawyers
are likely to embrace.
Of Settlements, Confidentiality Clauses, and Informal Societal
Less than three percent (3%) of civil lawsuits filed actually go to trial. This means that more than 97%
are settled. So although a lot of media attention is given to cases that go to trial, the bigger story, in a
sense, are the cases that get settled.
Cases get settled for a lot of reasons: 1) the people honestly find a mutually
agreeable middle ground with both sides happy about the result, this situations is
rare because parties that are close to a settlement usually get things patched up
before a case is actually filed, 2) there is desire on the defendant's side to avoid the
cost and time involved in fighting the case so that side just throws in the towel and
pays the other side off, this result is very common where the cost of defending the
case is more than the amount the plaintiff will accept in a settlement, and 3) their
are cases where the defending party wants to fight the case through to a trial, but
his lawyers run the bill up to the point where he has to accept whatever he can get
from the other side to avoid additional legal bills. .
Regardless of how the settlement occurs, the typical settlement document contains
confidentiality clauses which gag the parties and keep them from discussing the
case with friends. The end result is two parties in the community have gone
through a process of accusation and counter accusation a process which is very
revealing of the character of these parties while other members of the community
are deprived of this visibility into the character of the two people they might have
to deal with later. .
Communities have all kinds of informal controls which are used to shape the
behavior of people in the community. Informal controls only work if the
community generally has the information it needs to evaluate people's character.
Confidentially agreements work against these informal societal controls. Obviously
smaller communities are better able to enforce informal controls, even with
confidentiality agreements, because everyone tends to know every else's business.
So a confidentiality agreement signed at the time of the settlement can't stop the
knowledge already extant in the small community from spreading. In larger
communities the informal controls don't work very well in the best of
circumstances, but the presence of gag orders or confidentiality agreements
frustrate these informal control even more.
The SEC, NYSE, and NASD when investigating customer complaints found many
brokers had settled with customers and signed confidentiality agreements
regarding these settlements. The securities regulators wanted to make information
about all brokers' customer complaint history available to inquiring citizens. The
confidentiality agreements blocked the regulators' plan. So these regulators
outlawed confidentiality agreements going forward. Now their data base is
growing, it is accurate, and it is helping prospective investors. What happened in
the securities industry should probably be done across the board. The community
at large should be able to find out what happened in every dispute, so members of
the community can decided who to do business with and who to avoid going
So why have lawyers clung so tightly to the confidentiality clauses in settlement
Obviously there are cases where it truly is in the parties interest to maintain
confidentiality about the details of the case and the terms of the settlement. In
addition, a lawyer might honestly believe that it is better in all cases to gag the
parties so that half truths don't get spread about by one party or the other.
However other reasons come to mind as well that are not so laudatory:
(1) some lawyers do not want their own behavior in the case discussed in the
broader community. As pointed out earlier in this essay, many cases are settled by
parties who don't want to settle but are forced to settle by mounting legal bills.
Obviously if gag orders and confidentiality agreements did not exist the behavior
of the opponent in the lawsuit would be discussed. However, in the processes of
discussing the case, the behavior of the lawyers would also be discussed. That
second discussion could be very damaging to a lawyer's reputation particularly if
he had run up the legal bill unnecessarily or engaged in strong arm tactics to get
his client to settle.
(2) A second factor which argues for confidentiality clauses from a lawyers
perspective, is the future involvement of the bad actors in the community with
others who are unaware of the bad actors history. If an ignorant person gets
involved with a bad actor there is a high likely hood that bad actor will do
something in the future which will create a need for further litigation, (i.e. work
for lawyers). If there is general, wide spread knowledge in the community about
the bad actor, ignorant people are less likely to remain ignorant and thus are less
likely to involve themselves with the bad actor.
(3) A third factor, beneficial from the lawyers perspective, is the likely hood that litigation ended with
a shroud of secrecy will cause other people in the community to routinely seek extra, precautionary
legal advice. A party in a big city where confidentiality agreements are common has a limited ability
to find out about another person prior behavior. That party will have to engage in extensive
pre-contract legal consultation and perhaps extra document preparation designed to protect against
"every possible" future contingency. Such document preparation is very costly and makes a lot of
lawyers rich, lawyers who would never consider actually litigating a case.
Before closing, a final point needs to be made about informal controls within the legal fraternity itself.
Confidentiality agreements deprive the broader legal fraternity, particularly older lawyers and judges
of informal knowledge about how settlements are being arrived at. If a wayward lawyer has used
strong arm tactics or excessive billing tactics to get a settlement and if that behavior becomes known
to senior lawyers and judges, then those local law leaders can implement informal controls to make
sure the wayward lawyer does not engage in these tactics again. Aggressive lawyers who do these
kinds of things want to avoid these informal controls so they seek as much secrecy as possible.
Thomas Jefferson and Bob Bork Register Deep Concern about
Appellate Court Decisions
Thomas Jefferson expressed deep concern when his cousin, Chief Justice John
Marshall, began issuing opinions which put the Supreme Court in the postion of
deciding which acts of the President and Congress where Constitutional and which
were not. President Jefferson immediately realized that in theory this "self
conferred" judicial power was unlimited. He sensed that imaginative justices could
always interpret the Constitution in expansive ways and find Constitution
protections and rights which the drafters never imagined. President Jefferson also
realized that this power now placed the Supreme Court in the highest position in
the government, in other words it placed the Supreme Court in the "cat bird's
seat". From 1803, when Marbury v. Madison was handed down, the most
important branch of the American government was the Supreme Court not the
Executive or the Legislative.
Over the years, as democracy has spread across the world and as America has
become such a powerful economic, military and cultural presence, it was natural
that the American model of government would become a very popular model.
Since the American model has a strong, independent judiciary at its core, it is
natural that many other countries have set up strong, independent judiciaries.
Even in France, where the unchecked power of the people's elected representatives
has held sway for over a century, a independent appellate judiciary has started
issuing decisions that challenge the supremacy of the legislative branch.
This worldwide trend has caught the attention of Judge Robert Bork, who was a
judge on the US Appellate Court for the DC Circuit and at one time was a
nominee for a seat on the US Supreme Court. Judge Bork has written a book
entitled Coercing Virtue: The Worldwide Rule of Judges in which he discusses this
worldwide trend toward stronger judiciaries. However, Judge Bork has gone
further and has pointed out the worldwide trend toward authoritarian judges who
are willing to impose their own preferences oftentimes in face of overwhelming
opposition from the people.
Setting forth a few examples might be helpful. In Israel their high court has
knocked down preference in law for the Jewish religion, In Britain restrictions
passed by parliament on the service of homosexuals in the British Navy have been
struck down. In the US a copy of the Ten Commandments was removed by
Federal Court from an Alabama Court building. In Canada, the courts over
turned a Constitutional provision that allowed the Parliment to limit the
jurisdiction of the court saying that such a provision interferred with the court's
Judge Bork believes that these courts are simily reflecting an intellectual elite's
desire to move the world to a "higher level" of understanding of what is "right".
Bork believes that world travel, trade, and communication has created a consesus
among the intellectual class in all advanced countries. He believes these
intellectuals are actively opposed to organized religion and many cultural
traditions that have grown out of religion. Further, he holds that judges, wanting
to be accepted into the society of this class, are issuing unpopular opinions in an
attempt to curry favor with this intellectual class.
That these judges are making unpopular decisions there is no doubt. The real
reasons for their actions are only partly known. There is a modern tendency to
point the finger of blame at advisors and not at the man(men) with the power.
President Bush is not blamed for getting the US into the Iraq war, it is the neocons
that advised him who are blamed. In like fashion, its not the judges who make
these horrendous decisions that are blamed, it's the people they met at cocktail
parties that are blamed or it is the professors they had in school that are blamed.
However, Judge Bork needs to be given credit for one important proposal. He has
come out in favor of allowing a 2/3 vote of the Congress to overturn any Supreme
Court decision. This proposal would, in theory, return to Congress is rightful
place as the most important branch of the US government. However, because
lawyers dominate the Congress and because most lawyers have a excessive
reverence and respect for the decisions of the Supreme Court, this new
Congressional power would rarely be used. If on the other hand this proposal
were augmented by a proposal restricting lawyers serving in government to posts
in the judicial branch of government, this Congressional power would likely be
exercised often enough to give it real force and meaning.
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.
Medical Malpractice Shoves US Tort Processes Toward the European Model ...
The problems in medical malpractice litigation are numerous and the traditional tort system is incapable of addressing these problems. Here is a short list of the problems: (1) only a small percentage of those injured by medical malpractice (hereinafter “Med-mal”) ever bring a lawsuit or get compensated, (2) of those that do bring lawsuits fewer than half are ever compensated, (3) those that have minor injuries and sue get more than their injuries deserve, (4) those with major injuries oftentimes get less than their injuries deserve, (5) trials oftentimes degenerate into diametrically opposed testimony delivered by expert witnesses testifying to judges and juries that are ill equipped to comprehend the facts they are hearing, (6) judgements issued by different juries for the same injury are widely different, (7) the typical Mal-med case takes three to four years, (8) staged payments over time are generally not allowed even though many injured parties most often would be most benefitted by such an plan, and (9) the costs (ie expert witness, lawyers, court administration, etc) of trying Med-mal cases consume about 40% of the judgements or settlements obtained. These facts were presented by Professor Stephan Landsman from DePaul University, Professor Michael Saks from Arizona State University, and Paul Barringer from Common Good, on C-SPAN on 3/29/2005.
This group agreed on the problems but they disagreed on the solutions to the problems. Saks and Landsman, both law professors, thought that the problems could be solved by “tweaking” the existing system. Barringer, on the other hand, offered a very creative approach. He felt that (1) Med-mal cases should be decided by special judges who have had special training in medical subjects (juries would not be used in these cases), (2) the only expert testimony allowed would come from court appointed experts, (3) the judgements would be determined by a preset schedule that assured that similar injuries in different jurisdictions got similar judgements.
The objections to Barringer's approach were Constitutional and procedural. The Constitution guarantees the right to a trial by jury, and generally litigants are allowed to present their own case including the experts they want to offer to show that a recognized standard of care was violated. Barringer pointed out that in Workman’s Compensation proceedings these sorts of “expediting procedures” are standard. Saks and Landsman countered by saying that in workman’s compensation there is no need to have a finding of negligence. The US Supreme Court has said the existence of a injury can entitle the workman to payments so long as all injured workers get payments regardless of who is at fault.
Obviously this standard will not work in Mal-med cases so the time may have come for Congress to pass a Med-mal system along Barringer’s outline and simultaneously take away the Supreme Court’s right to hear appeals on Constitutional and procedural issues arising from this new law (See Art.3, Sect.2, US Constitution which gives Congress the right to regulate what cases the Supreme Court takes up.). If this happens, Med-mal cases would have a truncated adversay process that resembled some aspects of the European tort system. Later Congress could provide government paid “neutral” attornies to discover facts before trial and ask questions at trial to draw out all the facts, or perhaps Congress could go all the way to the European model and allow the judge to decide the case based upon a file full of the facts gathered by the government paid “neutral” attorney assigned to the case.
About John Roberts - Remember “If its Too Good to Be True, It Probably Isn’t True!”
The appointment of John Roberts to be Chief Justice has been greeted by many as wonderful. He is everything a traditionalist might want: 1) he is a lawyer’s lawyer, 2) he is a lifelong student of the law, 3) he has a judicial temperament, 4) he is conservative but not doctrinaire, 5) he has a degree of youth so he can give the job many years of service, 5) he has spent many years in and around the Supreme Court as both a clerk and advocate, and 6) he is a practicing Catholic and happily married.
However, he has some underlying weaknesses that could prove problematic: 1) For the last 32 years Roberts has lived in the Boston-New York-Washington corridor, all great cities but all possessed of a certain intellectual disdain toward the rest of America, 2) For the last 29 years his associations have been almost exclusively with lawyers, even his wife is a lawyer. Legal training itself has a narrowing influence on one’s thinking, but when that is augmented by excessive association with other lawyers, the compounding effect can be stultifying. 3) For the last 25 years Roberts has lived in the Washington DC area, where average annual incomes are the highest in the land and where the egos come super-sized as well. The associations and experiences one enjoys (or endures) in the nation’s Capital are hardly those that make for full understanding of the texture and variety of life across this “continental sized” country, 4) Roberts has been so specialized in the law that he doesn’t meet with normal people dealing with difficulties, rather he meets with the lawyers of these normal clients who are involved in an appeal, and 5) Roberts is a man comfortable with ideas. But will he be comfortable as the outlying yokels (ie normal Americans) object to Washington’s high handed mistreatment of their families, religions, school, institutions, culture, jobs, communities, National Guard, and state governments. The pressures from without on Washington are likely to be intense as the consequences of the regulatory burdens, Federal budget deficits, American aggressive behavior abroad, and the U.S. trade deficits manifest themselves. The people will want to loosen (or break) many of the ties that bind them to Washington. John Roberts has been throughly formed in the “hot house” political climate at the center of this country. He is unlikely to posses the necessary flexibility for what is coming......... (prepared by Hugh Murray 9/1/2005)
U.S. Economic Change Will Force The Adoption of a Civil Law Model for Most of America’s Disputes
Globalization has put the bottom two thirds of the American population on the economic skids toward subsistence living. At the same time the top 1/3 is generally doing better and their wages are rising. The good old middle class is slowly disappearing. Lawyers who like to think of themselves as being in the top one third are striving mightily to keep their incomes rising, but the citizenry from whom most of their cases come is increasingly unable to afford their services. You have the explosive situation where many people have disputes that need to be sorted out but the mechanism offered by society to sort out these disputes is manned by lawyers who are demanding $150 or $200 per hour.
This situation is made more explosive by the widespread presence in our country of foreign and native born business men who have traveled widely and know there is a popular legal system, called the Civil Law system, that provides for quicker, cheaper, and generally better dispute resolution. The combination of: (1) great need by many people, (2) spreading knowledge of something better, and (3) an entrenched class of functionaries who demand greater fees and resist change - is the stuff that can trigger revolutions. In America, the Supreme Court could impose availability of Civil Law type courts for small tort and equity cases (of say less than $150,000 in actual damages) but Justice Scalia says it has to come from the elected branch (ie Congress) where half the members are lawyers. Scalia obviously doesn’t want to deal with this hot potato.
Recently Justices Kennedy, Bryer, and O’Connor visited the American Bar Association November meeting to plea for greater effort by the Bar Associations and Media outlets supporting our legal system. They argued that criticism of American Style Rule of Law is rising, and they argued that a aggressive PR campaign can reverse this trend. As pointed out above the economic forces are such that no amount of PR is likely to stop people from demanding something better; particularly when knowledge of that better system is spreading.
Perhaps there will arise a large number of lawyers who take vows to help stressed lower middle class people with their disputes for $10 or $20 per hour. Such a group of dedicated lawyers, modeling themselves on the Peace Corps or the Jesuits, might save the current Common Law system because such a group would give disputing individuals each making say $9.00 per hour access to the our courts with trained legal representatives at their sides. Speaking of saintly activity in the law, the patron saint of civil lawyers is St. Yves who provided legal services to the not so well off in Northern France. The patron saint of Common Law lawyers, on the other hand, is St. Thomas More who did much of his lawyering amongst royalty at the Court of Henry VIII of England.
.................................prepared by: Hugh Murray (firstname.lastname@example.org)
.................................all comments are deeply appreciated
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