It’s The Central Problem..

…of litigating on behalf of disfavored litigants.  Meaning personal injury plaintiffs and criminal defendants.  Meaning they are disfavored by judges, of course.

In John Grisham’s fictional legal world, judges are always fair and yield to the evidence, so Grisham just by-passes this problem as if it didn’t exist.  The only well known courtroom drama that portrays judges as they really are is Barry Reed’s “The Verdict”, and in the movie version the judge character is, I have to say, rather brilliantly portrayed by Irish stage and character actor Milo O’Shea.  In fact, his judge character, corrupt and biased as he is, is a considerable moral improvement over real life judges.

In order to give us a dramatic story and a happy ending, though, The Verdict – having decided to show judges as they really are – has to employ an entirely fictional plot device so that at the end, the jury gets to decide the case in favor of the Plaintiff.

That’s not how it goes in real life.

In real life, the corrupt judge who wants to protect the favored litigant and the big law firm, like the judge character in The Verdict does, simply dismisses the case before it ever gets to a trial.  And in real life no one other than the Plaintiff cares.  There is no public outrage, no news articles, no one inquires how it happens that the Plaintiff doesn’t get her day in court.  The beloved “system” just moves on to its next patsy.

Personal injury plaintiff cases are dismissed before trial 50-75% of the time, depending on numerous factors such as the political affiliation of the judge and the geographical location.

In the unlikely event that the judge screws up and doesn’t get rid of the case before the trial, he can always dismiss it during trial.  According to one well known lawyer anecdote, a judge dismissed a plaintiff’s lawsuit right after the plaintiff’s attorney made his opening statement, before he had called any witnesses or presented any evidence.  What’s more, even if the judge lets a case go to the jury and they render a verdict in favor of the plaintiff, the judge can annul the verdict and often does if he doesn’t like it.

The Plaintiff can appeal a dismissal, of course.  The odds of prevailing on appeal?  About 1%.  And the evidence and the law have nothing to do with it.

You would think that the Plaintiff’s attorney’s situation would be analogous to the criminal prosecutor:  both have the burden of pleading the case in the first instance and “going forward”, as they say.  Both legally bear the burden of proof, though the burden is supposed to be far heavier for a prosecutor.

Yet a criminal prosecutor’s case is almost never dismissed either before trial or during trial.  In the exceedingly rare cases when that happens, the prosecutor can usually appeal.  The odds of the prosecutor succeeding on such an appeal?  About 50%; that is, about 50 times higher than the plaintiff’s in the exact same situation.

And the evidence and the law have nothing to do with it.

Even if a judge was not corrupt and evil, as the vast majority of them are, it’s pretty obvious that when you normally face about a 1% chance of being reversed by a “higher” court you don’t take a 50% chance.

What is the function of the jury?  To decide upon a “verdict”, just like the movie says.  The verdict is the “truth”, which judges and lawyers do not believe in because they are not naive like jurors are.

So here’s the reality:  in civil cases judges have nearly unfettered discretion to dismiss cases without a trial or before a verdict, and they do so routinely where the Plaintiffs, or their attorneys, or both, lack clout.  In criminal cases judges have the same unfettered discretion to dismiss cases without a trial or before a verdict, but as a practical matter they never do, because in criminal cases it is the plaintiff  – that is, the government – that has clout, and not the defendant.

Put another way, when you give judges unfettered discretion they use it to screw over powerless people and favor powerful people.  This, again, is why we have juries in the first place, if you didn’t understand that before.

One difference between civil cases and criminal cases is that in civil cases the judge’s power to determine the outcome is absolute, but in criminal cases the jury might get away from him and render an acquittal.  This happened to Judge Roy Bean Belvin Perry in the Casey Anthony case.

Imagine how this works from a CDL point of view.  Most CDL’s who have tried a case to a jury and managed to bring up something that was really damaging to the prosecution’s case have observed the palpable sense of panic by the judge as he struggles to figure out a way to undo the damage without being too obvious about it.  It was one of the best things about the trial scene in “The Verdict”, that the judge was portrayed in this fashion, stumbling over his words and fumbling about whenever the Plaintiff’s lawyer scored a point.

But the truth is – and every trial lawyer knows this, too – juries often get it wrong.  In criminal cases they are, effectively, the only real chance the defendant has, but it’s not a very good one, and you’ll be fighting the judge every step of the way.  In civil cases, you don’t even get that chance if you’re the Plaintiff.  Unlike the plots of fictional stories, a personal injury Plaintiff is at the mercy of a judge who generally has no integrity whatever (otherwise he wouldn’t be a judge) and it is never in his interest to be fair to you.  In fact his personal interest is in doing the exact opposite.

The disparity I am describing has considerably worsened in the last 30 years.  There are many reasons for this, and this is a long post already.  But I wanted to first, and again, stress the nature of this problem:  its seeming insurmountability.  Fictional accounts of the legal system and courtroom dramas must employ novel literary devices and basically misrepresent the judicial system’s true character because if they didn’t the drama would disappear.

The question every lawyer who represents disfavored litigants tries to avoid, but might actually wind up having to face in this or that case is this:  is there a way to surmount this seemingly insurmountable problem?  What would you have to do?  How much would it cost?  What is the likelihood of success?

What are the consequences of failure, to you and others?

You see at some point, unchecked, the system will rape, pillage and murder.  It’s the inevitable terminus of the slippery slope.  It won’t do those things all the time, of course – even the Nazis didn’t do that – but it will do them whenever it feels like it, and especially whenever it feels that it’s easier to go ahead and do those things than it is to say ‘no, we’re not going there’.

The system will do evil, in other words, when it is so much easier than the alternatives.  It is predictable that men of low character – that is, judges – will behave this way.  And they will continue to behave that way unless and until there is some consequence to them as a result.

Now, some people intuit all this and come to the conclusion that they should do violence.  And it’s important to note that not only is this objectionable on moral grounds; it is also the mirror image of the same problem.  The situation calls for mental and moral effort, not mental and moral sloth, and people may have to suffer through to a favorable conclusion, as has often happened in history.

Evil can be overcome only by good, not more evil.

 

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4 Comments

Filed under Judicial lying/cheating, Striking lawyers, wrongful convictions

4 responses to “It’s The Central Problem..

  1. I’m not in the US, so my only familiarity with US courtrooms are from books, movies and blogs such as yours. I have read and seen a few which to my (admittedly basically ignorant) eye appear to show a greater spectrum of humanity. There’s Richard North Patterson, who in “Protect and defend” has several judges who are, if not corrupt, then at least decidedly biased in favor of one side of the argument before even starting to review the evidence. More recently I’ve been watching the drama series “The Good Wife”, in which the titular character is a Chicago lawyer. The judges in that series have certainly varied wildly, including one who sentenced children to juvenile detention so he could get kickbacks from the privately run detention center. I wonder if you’ve read or seen those and if so, if you feel that my view is correct. In The Good Wife I think it’s very obvious that the criminal system doesn’t work except for the wealthy or those who are lucky enough to draw a winning ticket in the pro bono lottery…

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  2. I’m not familiar with “The Good Wife”, but the story you describe with juvenile detention and kickbacks really happened – in Pennsylvania.

    Does the criminal justice system “work”? Sort of. Not really. It’s as good or as bad as the police, which is to say that about 75-80% of the time it’s in the vicinity of being right. What’s disturbing is that the whole apparatus, with lawyers and judges and juries is supposed to get that up to near 100%, and it doesn’t make a dent.

    Acquittals are anomalous, and as a rule the system hates them and tries like hell to avoid them. Then, reversals on appeal are extremely rare.

    What I was getting at in this post is that the problem boils down to judges. The system assumes them to be neutral, depends upon them being neutral, but they aren’t. And their partiality is grounded in self interest.

    If as a group they are of low character – and they are – you cannot overcome self interest with appeals to higher values, like fairness. The only way to address the partiality issue, then, is a similar appeal to self interest, but a criminal defendant has no currency to offer on that score, because it is never in the judge’s self interest to be fair to a criminal defendant.

    So if you can’t offer anything positive, the only thing left is to come at it from the other side, and hold out the prospect that their self interest may be harmed by not being fair. You rule out violence, of course. What does that leave you with?

    Difficult problem.

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  3. Dear Atticus?
    It is a sin to kill a nightingale as well as the mockingbird defending her. I am just a Pro Se fool who could not find one honest lawyer in Livingston County, (in 2000) and I have paid the price, over Andover.
    I praise you and have enjoyed your writing and your mission of noble endeavor. You have given me hope that not all lawyers and judges are corrupt. But the honest lawyer and the honest judge have become an endangered species and true American justice is becoming extinct in my own lifetime…Tell Sephora it is not her fault. Classic PTSD signs, and it wasn’t just heroin. it was probably laced with Rohypnol or GHB.
    (amnesics).

    (and resulting TBI… chemically induced Traumatic Brain Injury.)
    (I could not prove that, but it appears very similar to a case I was close to.)

    And the real case is “Respondeat Superior” of a “paid” confidential informant, over the line, and the no holds barred cover-up, which corrupts even borderline morality. One other note. Have you ever heard the mythical story about the Livingston County Succubus of The Court, who makes good men do bad things? signed AXM… Amish “X” Marine… where x is the variable.

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