Norm Pattis Is Getting There; Gamso Not So Much

At least, Norm is way ahead of Scott Greenfield and Mark Bennett, the proud “trench lawyers” who never want to confront the real problem:  namely, that the game is rigged.

I don’t mean to patronize, so let me qualify everything I’m saying here by stating at the outset that all of these men, and all trench lawyers for disfavored litigants, can count me among their most ardent admirers.  The difference between them and me probably boils down to no more than minor variations in education and background, and the random opportunities life throws at you, mine having perhaps included a period for detached reflection on things that most lawyers never get.  I’m not sure, by the way, that having had that chance is something I would necessarily recommend to anyone.

Anyway, here’s another quote from Norm, who’s been prompting more than his share of thought around here over the last week or so:

The judiciary now wants to manage litigation, and thus requires all manner of pre-trial reports, conferences, briefs and pleadings. All of this digital manipulation of files yields plenty of work for the law’s leisure class, those calling themselves “litigators,” the law’s paper jocks who can whip up a meaningless request to admit, evade simple answers to simple questions in the course of discovery, and file motions simply for the sake of tactics. The fact is, at least on the civil side, litigators have driven discovery costs through the roof. And judges are the willing accomplices to all this. Give a judge a chance to dismiss a case for failure to comply with a meaningless order, and you’ve made his or her day.

As we say, emphasis supplied.

Norm is smart enough to notice that his observations apply only to the “civil side”, because apparently he does both criminal defense and civil rights actions.  Probably federal civil rights actions under 42 U.S.C. 1983 from the sound of things.  But what he says about those kinds of civil actions could be applied to any other civil actions where you have as a Plaintiff some injured person (injury broadly defined) and as a Defendant some institution – the government or one of its employees, an insurance company, a bank, a big corporation.

Criminal cases, by contrast, proceed fairly rapidly and systematically to a settlement or verdict.  Usually in months or less, and only in very rare instances years.

Why the contrast between civil and criminal cases?  Norm was staring it right in the face when he wrote those words.  I wonder if he’s aware of the implications of his own thoughts.

It’s right there in the last sentence.  “Give a judge a chance to dismiss a case…and you’ve made his or her day.”

This applies only to civil cases of the kind I mentioned.  Judges are not anxious or happy to dismiss criminal cases.  And in fact they never do, no matter how ridiculous they are.  But something more than 50% of the kinds of civil cases I have described here – maybe as much as 75%, or even more – are dismissed by judges, without a trial, and judges do indeed like to do it.

Given the law this should seem strange.  In theory, it doesn’t take much to make out a case for, say, negligence and the burden of proof is low – “probably” is supposed to do it.  By contrast, in a criminal case – again in theory – there should be precise allegations and the ultimate burden of proof on the government is often described as the highest known to the law:  beyond a reasonable doubt.

So why would judges wind up happily dismissing 50% or more civil cases of that kind when they never dismiss criminal cases?  The common thread is that they favor institutions such as the government, insurance companies and banks over individuals.  And they do this for obvious reasons, chief among them being that institutional litigants and their attorneys have vastly more political clout than any lone individual.

They are responding, in other words, to political influence in making their decisions.  This is exactly the opposite of what they are supposed to do.  Indeed, this is the exact opposite of the rule of law.

Courts – supposedly courts of law – that do not abide by the rule of law.  This is a big problem.  The problems that can arise in civilized intercourse among people don’t get any bigger.  The only people with any incentive to do anything about that, who are in a position to do anything about that, are the trench lawyers.  And they don’t want to.  Their plight is getting worse and worse as time goes on – that is precisely the thesis of Norm’s post – yet they seem to believe that a better argument tomorrow for the next client will somehow be different.  They are not, of course, stupid.  Far from it.

They are deluded, though.  They need to grow up.  Especially the older ones.

I have, somewhere, compiled some interesting statistics on this subject of criminal versus civil.  When I get around to it I’ll post something.

In the meantime, Jeff Gamso has been doing a lot of posting lately, which is good, he’s a good writer.  Today he revisits what he has termed the “Mark Gardner Rule”, which has to do with lawyers not criticizing judges, because if they do they’ll be disciplined by the attorney disciplinary committees or tribunals or star chambers or whatever it is they call them in whatever jurisdiction.  The occasion for Jeff’s post is that another lawyer had breached this rule, one Patrick Rocchio of Michigan or Indiana, or something.

Now, my own criticism of what Mr. Rocchio supposedly did has more to do with the poor aim of the invective, not the invective itself.  The best argument to have made to the disciplinary committee and the court (And maybe this argument was made.  Courts often ignore – as in they don’t mention – evidence and arguments that effectively rebut the result they want to reach.  That, of course, is judicial misconduct and it’s fair to say that such misconduct is never addressed.  But we’ll leave that for another day.) is that  chicken shit disciplinary charges are visited only upon independent, private practitioners like Rocchio.  Never upon big firm lawyers.  Never upon government lawyers.  Never, ever upon prosecutors.  Indeed, government lawyers can commit huge violations without a peep from the disciplinary committees.

It’s the way lawyer “discipline” functions all over the country.  There is only a small – and shrinking – pool of attorneys that are even eligible to be disciplined, although in theory of course all lawyers are subject to the rules.  But it just isn’t true.

To justify their existence, then, disciplinary committees must increasingly target that small group of lawyers for smaller and smaller “violations”. The inevitable result is that independent practitioners, in addition to meeting the other formidable demands of providing quality representation to individuals, must regularly fend off time consuming “ethics” probes from the disciplinary committees over chicken shit allegations.  That’s exactly what the Rocchio matter was, and that’s why he got mad.

He was right and the disciplinary committee and the referee and the court were all wrong.  But he’s the one who’s going to get a black mark and who’s “career”, whatever that is, is going to be damaged.

For Jeff, this is a cautionary tale, the lesson of which is:  don’t cross the judges.  Now I love Jeff and reading his stuff, but frankly he takes this approach to the point of obsequiousness and servility.

We can always go back to being genteel and observing all the customs and etiquette that used to be part of the charm of practicing law, as soon as judges reform themselves and start doing their job.

Until then, it’s war.  The fact that you don’t want to acknowledge this and fight back doesn’t mean there’s no war; it just means that war is being waged against you and you are not responding, or you are surrendering, hoping that a “mea culpa” will appease your attacker.

Let me say this, Jeff, for whatever it might be worth to you.  If you told that bitch of a judge to go fuck herself when she told you she was “upset” over what you wrote – like you should have – and she and the other morons of the bench dared to try to discipline you for that, I would have happily called for a strike in Toledo – it is Toledo, isn’t it? – which is quite a sacrifice for me because I never, ever wanted anything to do with Toledo.

Don’t get offended.  Don’t succumb to Stockholm Syndrome.  I’m your friend and ally, not that stupid judge.