All Terrain Thinking

A Compendium of things I think are Important

Consequences In Life, Often Unanticipated

 

16. THE LAW & LAWYERS

"The first thing we do, let's kill all the lawyers." - Shakespeare, Henry VI - 1591

Admittedly, that quotation is taken out of context, but isn't it great anyway? America has 50 lawyers for every engineer. Japan has 10 engineers for every lawyer. There are over 90 million lawsuits filed in America each year. For each new car you purchase, $500 of that price is the cost of litigation, as is 20% of a ladder’s cost, and $3,000 of the price of a pacemaker for your heart. In San Francisco, there is a woman who has enriched herself and her lawyers by several hundred thousand dollars, by suing her neighbors and anyone else she can find, who might be a fairly easy victim.

What used to be an admired, respected profession, has become a lot less, thanks to a small minority of its participants. Too many are like politicians. They are out to get as much as they can, for doing as little as possible, regardless of whom they harm, or how outrageous their case or client may be. In 1996, lawyers were suing a grocery store in behalf of a health food nut, because the store was carrying items containing fat. Hundreds of other legal shams raise the cost of everything, for everyone, because of absurd and outrageous law suits. Tort reform is long overdue.

The consequence of America having 70% of the world's lawyers, is that no one is really safe any longer. No matter how low your station in life may be, or how wealthy you are, no one is safe from lawsuits and legal actions perpetrated on you, your business or company, by unprincipled lawyers. It should be a mark of disgrace to defend a known guilty party, or institute a frivolous lawsuit, but it isn't. Should a lawyer defend a guilty person? I think not. Lawyers, who defend the guilty, are an abscess on society. If a known guilty person needs a lawyer, make it difficult for him to hire one. I am poor and need a new car. Does that entitle me to one? Is a guilty person entitled to a lawyer? The 6^th Amendment to the Constitution says that, "In a criminal prosecution, the accused shall...have the assistance of counsel for his defense." It does not say that the state shall pay for such, or that 'counsel' shall be a college-educated lawyer. It says the accused shall have counsel assist in their defense...not perform it. Highly paid public defenders are a drain on taxpayers. Public defenders are often so highly paid, that many consider it foolish to go into private practice. It has become far more than 'assistance,' and far too many of the guilty are going free. Maybe criminals should have the use of law students for 'assistance,' making it part of their schooling. Most Americans deeply resent highly paid lawyers using technicalities to free the guilty.

Should a lawyer defend the guilty, even for huge fees? It is disgusting to witness crooked, greedy lawyers using all their expertise to defend the obviously guilty. We speak of the ethical standards of brokers, bankers, and businessmen, how about having such standards for lawyers? Isn't a lawyer just as immoral when he defends the guilty, as a used car salesman turning back the odometer, or using sawdust to conceal a bad transmission? Isn’t it unethical to defend or accept a client you know is guilty, just because he has the money to pay you? The courts are full of shoddy lawyers defending and setting free admitted murderers, child molesters, rapists, and burglars, getting them off on technicalities and other assorted legal mumbo jumbo.

Lawyers love to bilk insurance companies at the orders of their clients, and insurance companies are only now beginning to wake up to the fact. When I was growing up in D.C., my Dad was a corner druggist. One day a woman bought a Baby Ruth candy bar, broke her tooth on it, and sued my Dad. (As an aside, the name "Baby Ruth" did not come from baseball star Babe Ruth, but from President Grover Cleveland's illegitimate child named "Ruth." She came to be called "Baby Ruth.") His insurance company laughed her out of their office, but today they probably would pay, running up the cost not only of insurance, but any merchandise we buy. Neighbors of mine, many years ago, were real professionals at it. This couple and their lawyers used to defraud insurance companies at every possible chance, be it homeowners or auto. Once, when their daughter was taking dancing lessons, she fell on the floor, and they decided the floor was far too hard. "I think we've got a suit here Max," was the first sentence...and they did. When a sudden rainstorm felled some of their already rickety gutters, the ruse allowed them to buy all new gutters and do other repairs on their huge frame house as well. I often wondered how many insurance companies canceled them, or certainly should have.

In Philadelphia, in 1985, an empty bus was going back to the garage after its run, and while waiting at a red light, was bumped in the rear by a car. There was no damage. When the bus driver got out to investigate, 32 people got on the bus, feigned serious injury, and the insurance company paid. This is a true story! In that same year, the Transit Company paid over $32 million for damage and injury claims, most of which were in all probability fraudulent, according to a friend of mine who worked there.

Judges instructing juries or rendering verdicts, are equally squalid in many cases. An old definition of a judge is, "a lawyer who knows the governor," and that might not be too far off base. I was given a traffic ticket in Philly for pulling in front of, and stopping to help a woman whose car had broken down on a high bridge...obviously a ticket that should have never been written. I was advised to tell the judge I was a member of a certain service club, because the judge always found for the police, no matter what the circumstances. I told him at the beginning I was a member of the club, and it wasn’t a lie. "Case dismissed," was the instant retort. Nice verdict, but for the wrong reason.

A wrong verdict was the case of the L.A. judge, who ordered Riverside County to pay two illegal immigrants $370,000. The police hammered them a bit when finally catching them after an 80-MPH chase. (I'd have done the same) They were in a trashed out pickup, were illegal, and couldn't speak a word of English. A reporter in a TV station helicopter videotaped the cops roughing up the rabble after they tried to get away. Made their day, didn't it? Let's see now, that’s $185,000 each, and no lawyer's fees, as they used the public defender. Went home happy, I would assume. How about impeaching that judge? I’d be delighted to have a cop beat up on me for $185,000.

There is a huge difference between law and justice, no matter how contradictory that statement may seem. Laws are merely a bundle of rules written by politicians who got a majority vote for their often hair-brained ideas. Regulations written by bureaucrats, (non-laws) have the effect of law in the courtroom, which is a total outrage. Justice has to do with logic, relationships, circumstances, and plain fairness. Hitler had a lot of judges who enforced the laws of the Third Reich, and just like the rest of the Nazis, when put on trial said, 'we were only following orders or the law.' The laws were corrupt and unfair, and the judges were also.

Judges should bend the law in favor of justice. In 1995, a man forged a signature on a document neither my wife nor I had ever seen. It was not witnessed, notarized, or dated, and even the signature bore obvious discrepancies between the real and forged ones. The judge found for the crook, and it cost us $20,000. I can give countless examples, but the judicial system has as many bad judges as there are lawyers pleading in front of them...usually on a percentage basis.

Back in the late 19^th century, "Hanging Judge Parker" held forth in his court at Ft. Smith, Arkansas. Judge Parker hung 88 miscreants during his time on the bench. Wouldn't it be nice if we had a modern day Hanging Judge Parker sitting on a current judicial bench? In those days, as opposed to current practice, a "necktie party" was a social event. People traveled miles to witness a cattle rustler or murderer being 'strung up.' It was a pleasure to witness a hanging a hundred years ago, and it should be today. Why shouldn’t it be a joyous occasion to watch a murderer electrocuted, or given the gas? I would consider it a distinct pleasure to push the button for an electrocution. Today, executions are hidden away from the public, whereas a hundred years ago, the public was invited to witness the ultimate punishment for those deserving of death. We should all celebrate when a criminal vermin is executed.

99% of judges today are lawyers, and when a person pleads his own case, there are a few marbles in the opposite corner already, because the judge will look with favor on a lawyer or prosecutor, and askance at a person who didn't hire a lawyer. Got to protect your own you know. It always takes a lot of courage to uphold justice, when it runs against the law.

Trial by Jury

"All trial is the investigation of something doubtful." - Samuel Johnson

Trial by jury has become an absurdity, as witness the O.J. Simpson affair. Many juries fail to give a correct verdict. Witness not only the O.J. Simpson one, but the outrageous verdicts and awards given, just to name two examples: (1) the doofus crone who spilled hot coffee in her lap and sued McDonald's for $2.9 million and obtained a judgment against them, or (2) the doctor who was awarded $4 million after discovering, by accident, that his BMW had been refinished a bit after receiving a scratch during a shipment from Germany. This is one hundred times what he paid for it! Race and gender seem to have a lot to do with a jury's verdict, and Alabama currently seems to be the state that awards the highest verdicts for silly lawsuits. Some Alabama judgments and verdicts deserve a place on Monty Python's Flying Circus. A Los Angeles jury didn't convict the Mendendez Brothers after they admitted murdering both their parents in cold blood.

In England, juries are permitted to question the witnesses, and the judge selects the jury, unlike the American system. In England, the loser pays the legal costs of the winner, thereby discouraging frivolous lawsuits. After all, America has 70% of the world's attorneys, and 10% of its population, which numbers may decrease if we switched to the British system. I am certain the American Bar Association wouldn't permit that. Most legislators are lawyers, and they won't pass legislation against their own profession by enacting tort reform or the British system, so we will continue to pay through the nose for our legal system, enriching the legal profession. All consumer products have the cost of lawyers and lawsuits built into them.

As an example, look at the small airplane. Absurd rules allowed lawsuits against plane manufacturers for 25 years or more after sale. If a crash happened, whether it was the pilot's or plane's fault, suits were allowed against the aircraft manufacturer. After a couple of decades, normal decay, poor maintenance, wear and tear, unskilled piloting, plus perhaps several owners and non-factory modifications, how could an accident be faulted to the manufacturer? Huge lawsuits and absurd judgments resulted in the virtual bankruptcy of Beech, Piper, and Cessna. They simply quit making General Aviation planes. Finally, tort reform of a fashion was enacted, and once again a few small planes are being manufactured in America.

The main problem with current trial by jury is that it is necessary to have a unanimous verdict to convict a criminal. We are so used to the system; few have ever questioned it. The Constitution says nothing about a unanimous verdict. Amendment 7 of the Constitution's Bill of Rights says, "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise examined in any court of the United States, than according to the rules of the common law." In other words, a man has the right to a jury trial, not a unanimous jury. The Supreme Court isn't unanimous, and neither are military tribunals, other multi judge panels, or some civil jury trials. Elections aren't unanimous, and for that matter, I can think of no other segment of our civilization that requires a unanimous anything to be passed or enabled. Why isn't a 65% vote sufficient for a jury verdict? Why does it have to be unanimous? The consequences are that thousands of the guilty are set free each year.

Read that 7^th Amendment again, and tell me how it was Constitutional for the LA Police to be tried again after being freed by a jury in the Rodney King affair? How is it Constitutional for endless appeals after a jury has ruled? The plain fact is that it isn't, and it wastes billions of dollars and hours…enriching lawyers.

SOLUTIONS

Lawyers should earn the adulation and respect of the community by having a reputation of never knowingly defending a guilty party, being able to sleep well at night, and not having "hoodwinked a jury that is not over wise" (Gilbert & Sullivan). And wouldn't it be nice if the American Bar Association set a "Standards of Acceptable Practice" for its members?

Judges need to have at least 4 important qualities and lack ego, to be really good. They must possess intelligence, wisdom, courage, and logic. Judges must get a rush when everyone is ordered to rise when they enter the court, but the ego trip must stop there, or the judge will be poor. All judges should be elected, not appointed, and their records available to voters when they run for re-election.

Juries rarely know about "Jury Nullification." This means that the jury simply does not follow the judge's instructions or even the law, but decides for itself what is right or wrong, regardless of what the law or judge may say. Perhaps the first such case was when William Penn and William Mead were on trial for having led a Quaker worship service, contrary to the Coventicle Act, which made the Church of England the only legal church under British law. The Crown proved the law was violated, but the jury refused to convict, realizing there should be no "official church," striking one of the first blows for freedom in the New World. Throughout American history, jury nullification has been used successfully, and is common when juries refuse to convict in IRS cases. Juries are their own law when they retire to deliberate. They can free or convict, regardless of law or a judge's instructions. John Adams said, "It is not only the juror's right, but his duty…to find the correct verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court." Remember that the next time you are called for jury duty. Further information on nullification can be had by calling 1-800-835-5879 (1-800-TEL JURY).

The idea of allowing a jury to vote on awards, is perhaps the most asinine aspect of the American legal structure. Emotional pleas by counsel aimed at the maudlin sentimentality of jurors, results in the bestowing of sums simply dreamed out of thin air, bearing not the slightest relation to actual fact. In July 2000, a moronic jury of five awarded a judgment of $145 billion against tobacco companies, setting an all time record. Their IQ's must have been similar to the room temperature in the deliberating room. While the courts maintain that "justice" is their stock in trade, allowing empanelled jurists to remunerate, rather than judge, is a travesty. If damages can be proven and redress is appropriate, witless housewives, small time tradesmen or anyone else drummed up by the sheriff's department are not the ones to determine the amount of award. Contingency paid lawyers braying dollar amounts to those who may not be able to count that high, is the height of preposterousness. Better a magistrate, banker, or someone trained in law or common sense is retained to determine the awards, not the jury.

"Victimless crimes" must be made not so, if we are ever to use prisons for real criminals. I hate gambling, never have done drugs or visited a hooker, but to spend billions of dollars each year and fill the jails with people who haven't adversely affected anyone but themselves, is a waste of everything. If you don't like abortions, don't have one, educate your kids as to your beliefs, and go out and proselytize even, but don't make an action that is impossible to stop, into a law or Constitutional Amendment. Prostitution is the 'oldest profession,' as if it could ever be stopped. Sex with a prostitute for money is just an unrefined method of obtaining what men and women have for thousands of years obtained in a less forward way with foreplay, spending, fine dining, dreamy moonlight necking, dancing, fancy dress, or any of a thousand other methods of wooing the opposite sex. 25 years ago, the Phoenix Arizona Police Department dressed officers in baseball uniforms and went to Van Buren St. to lure the hookers into making propositions…which of course they did. Needless to say the Arizona Republic newspaper got hold of the story, and the cops were practically laughed out of town. Think of what that comic opera cost, how much time it took, and how many real burglars, crooks, or felons could have been caught using the same resources. In certain European cities, "red light" districts allow prostitutes to ply their trade, and even drug sellers to operate, and it isn't a bad idea for America.

Gambling is perhaps the second oldest form of entertainment. Most states have done a pretty god job of eradicating a lot of it by making their own gambling legal, namely the ever present lotteries, which one has as much chance of winning as being struck by lightning. Old-fashioned numbers writers used to pay off in cash immediately, not tell the IRS, and took bets on three numbers, not the five or six the states use, making the odds virtually impossible. State lotteries are a misrepresentation anyway, because the advertised winnings for the lucky one are always misstated. The money is usually paid out over 20 years…with no interest. So-called "vice squads" have raided card parties and private poker games for far too long.

Republicans seem to like freedom of the marketplace, and Democrats adore freedom in the bedroom. Republicans should stop trying to legislate their ideas of "morality." How can laws against fornication, adultery, homosexuality, and abortion be enforced? Parts of the Republican Party want to make their abortion hang-ups a Constitutional Amendment. Before the Supreme Court made them legal, abortions were performed by back alley impresarios, boyfriends, and quacks of all sorts under the most unsanitary conditions with coat hangers and other crudities…under cover of course. Does abortion destroy a live fetus? Yes. Is it the same as the murder of a human being capable of sustaining life on its own? That's an answer that can only be based on individual religious or scientific belief. Even if one believes it to be murder, there are no federal laws prohibiting murder, and could a law stop it in the first place? The whole thing, in my opinion, can be summed up by a bumper strip I saw, which said, "Don't like abortions? Don't have one!" Roe Vs Wade should never have gotten to the Supreme Court anyway, as abortion is not a Constitutional issue. The tenth Amendment possibly gives a state the right to legislate abortion, but no interpretation of our Constitution can possibly give the federal government jurisdiction in this area. The whole thing will be moot anyway within a few years because of the "day after" and "day before" pills which prohibit fertilization.

Wouldn't it be exquisite if the Supreme Court ruled in favor of the Constitution? The highest court in the land regularly argues, legislates, and decides over the most trivial of issues, while the march towards total government and ultimate bankruptcy continues unabated. The Supreme Court issues about a hundred decisions each year, and often relies on previous Supreme Court decisions, rather than simply looking at the Constitution. If a previous Court erred, how is basing a decision on a precedent, good Constitutional law? Suppose the Supreme Court decided that all unconstitutional things now being done in America by the 'inside the beltway gang,' were indeed just that...unconstitutional. In a glaring instant, all redistribution of wealth, subsidization of everything and everyone, and interference in everyone’s life...would be at an end. The taxes would go to practically zero, prosperity would be regained, tens of thousands of federal employees would be out of work, lobbyists would have to find another occupation, and political campaigns would shrink to virtually nothing. If the Supreme Court acted properly, there would be no largess to distribute to the favored ones and big contributors. A virtually unimaginable plethora of gifts from the horn of plenty would descend upon America.

Legislation is the Constitutional job of the Congress, not the Supreme Court.

To enforce laws, we have the police. Cops riding around in air-conditioned cars with the windows rolled up all year round make it impossible to do an adequate job of policing. Police should be familiar with residents of their sectors, and with the place thieves and burglars could hide while waiting for the "coast to be clear." Laws should be enforced by cops walking or riding bikes on beats, each with a gun, radio, baton, pepper spray, and handcuffs so they can see, hear, and feel what is going on, making a neighborhood far safer. The savings in gas, cars, and repairs would be appreciable. Cruising around in sealed police cars defeats law enforcement, because they can't see, feel, or hear anything, and it is just plain lazy.

Adopt the British system. Let the judges pick and question the jury, make the loser pay the legal costs of the winner, eliminate the unanimous jury verdict requirement, and have real tort reform. Let the judge and jury question the witnesses to ferret out misleading testimony and questioning by lawyers on either side. Supreme Court justices query both sides at length, and often embarrass lawyers. If the above happened, our 70% of the world's lawyers would dwindle down to maybe 20%, and we would all be a lot happier and richer!

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