The Morality of Litigation – Part I

August 7th, 2010

Forgetting the Principles

The United States of America is not a democracy. Hopefully, this statement won’t shock the average reader in this age of information. Our country operates as a ‘Republic’, meaning that we elect people to make decisions for us instead of voting directly to create the laws by which we live. We use an electoral college and complex legislative procedures instead of a ‘one man, one vote and majority rules’ methodology. Our elected representatives don’t have free reign however; insofar as we hold them to that major outline of American legal principles referred to as the Constitution. This was written by the founding fathers to ensure we wouldn’t move too far from their original vision during the centuries of legal evolution expected to follow their initiatives. This made the courts an invaluable part of our system of government. Leaders might come and go but the principles of government to which they must adhere would endure.

Unfortunately, the founding fathers didn’t quite foresee the extent to which money would be used to overturn the basic principles of our constitutional republic.

At some point, primarily through a chance remark made in 1866 regarding the rights of railroads to enjoy the due process of law, corporations obtained official status as ‘citizens’. Once imbued with their own set of constitutional rights those newly created citizens, whose corporeal bodies are really made of paper, began to alter the nature and future of this Republic. The privileges accorded to our ‘Paper Citizens’ are eroding the foundation upon which American society is uniquely based and explains why we have lost the ability to get ‘back on track’. Our courts have become inaccessible to the average individual, whose life experiences would promote legal evolution in the direction most related to the daily lives of our diverse population, including business owners. Instead, the courts have become the playthings of conglomerates with interests far beyond our borders.

The NAFTA trade agreement permits corporations to sue governments, if they suffer a loss of profits through any restraint upon trade, even if their products are being regulated by communities due to health concerns (e.g. pesticides banned in Canadian provinces provoked a suit). One might presume that such bans safeguard citizens’ rights to life, liberty and the pursuit of happiness, but the apparent form of happiness protected by this treaty appears limited to profits for paper citizens. Interestingly, these ‘citizens’ aren’t necessarily ‘American’. The transnational corporations in particular, would appear to have no particular allegiance to any government. This outside form of interference in our domestic court system can even bypass those venues and be done by tribunals. This avoidance of public hearings would indicate that corporations are disposed to view human citizens as capable of realizing they have a stake in such matters which might enlighten us as to the conflict of interest that exists with paper citizens who appear entitled to multiple justice systems. The question must then be asked, why such an agreement was made which undermines our system of jurisprudence. We send our youth abroad to fight perceived threats to our constitutionally prescribed way of life. Perhaps it’s time to face the internal forces which threaten that very system of governance we are brought up to believe is “American”.

Lawyers exist in abundance yet few see the inside of a courtroom. The litigation process is the way in which we bring meaningful issues to judicial attention. Public access is granted by means of the right to attend hearings and trials as well as obtain access to record of those proceedings. Such records set precedents for future generations and prevents injustices from repeating themselves unnecessarily under a veil of secrecy. Professor of law, Marc Galanter describes this in his brilliant essay, “The Vanishing Trial”, illustrating how the business of law has been transformed into the law business. Lawyers make more money by settling all their cases instead of trying them, even those which might appear to garner easy, profitable victories. After all, why should a fledgling attorney openly display their still-developing skills? Why would a veteran at the craft risk public defeat in an open courtroom and jeopardize their reputations and fund of future clients? Transcripts of these processes live on forever. Juries are not always predictable. Judges have been known to vacate or reduce awards from time to time.

Still, individuals filing law suits are under the impression that they will have their day in court to air their grievances and obtain compensation for damage to their persons or property. This isn’t about huge wins in the millions of dollars but far smaller amounts made large by the costs involved. The costs of conducting depositions, hiring expert witnesses, devoting many hours to legal research and eventually, the court costs are not to be lightly undertaken. However, it is well worth the price of admission if–as intended– it provides us with a blue-print of the circumstances and prevents the need for future litigation on similar principals through precedents.

Unfortunately, settlements are usually ‘sealed’ and the presented circumstances and arguments unavailable for public review. Severe penalties can be meted out should a participant decide to open that knowledge to benefit others. That renders these private battles useless to society. Even if a particular malefactor paying out large sums in settlements chooses to learn from their errors and change their practices, there is still no precedent leading others employing similar policies to make the same changes. Even worse is the opportunity to reach a settlement in which significant concessions are made without any acknowledgment of fault by the payee. Our legal system has turned into just another day at the office for huge numbers of people, both real and those made of paper. We can all participate in the justice system without actually advancing the cause of justice.

We ought to be viewing the practitioners of law as we do those practicing medicine or entering into the clergy. These are career choices requiring a ‘higher calling’ than, say, a person drawn to work at the local bar and grill. The future of a constitutional government depends upon it and the oaths taken by those entering into the Bar Associations of their states all affirm a commitment to defend the Constitution. In stark contrast, the settlement process may lead innocent people (or their insurance companies), to pay out penalty assessments simply because they have lawyers advising them it will avoid the more costly processes of proving their innocence. Most Americans are familiar with the saying, “Quit while you’re ahead.”. In these situations, it’s more closely resembles a case of “Quit while you’re behind.”.

How can we return the courts to the people they are supposed to serve? Bringing a case to trial is a Herculean task requiring resources most injured parties no longer possess. One needs a reasonable degree of health and energy to look after such matters. Monetary support during the years of delays in prosecuting a suit is crucial, assuming you have an attorney able to take the case on contingency and bear the costs of litigation for the plaintiff. Last, but not least, one needs to be able to judge the competency of their own counsel’s performance. Are their efforts are being expended in good faith for the benefit of the client and not just their own coffers? Are special interests delaying or preventing your case from proceeding? Few people are in a position to press legitimate and important suits because the most harmed have the least power.

When did Americans lose this power to use our own system of justice? An examination of a country’s economics is usually a good predictor of how readily citizens will relinquish their rights in return for the illusion of economic stability, if not prosperity. Preoccupation with keeping a roof over one’s head is a big part of the problem. We appear to be in a period of civil war between classes largely established by businesses. In this reprise of the feudal system, citizens compete for their spot inside the castle perimeter because there are no paychecks, (with or without benefits), to be found outside of the moat. Even the invention of part time employment as a means of avoiding benefits packages didn’t cause unions to launch a large-scale assault upon the castle walls. As living costs rose and wages fell, thoughts of advancement in the workplace was replaced by hopes for retaining one’s current job or similar position. We ceased to be an upwardly mobile society or even a mobile society for that matter, with fewer jobs to spur movement around the country.

The myth of secure employment remains prevalent among hopeful citizens. The Bureau of Labor tells us workers now change jobs about ten or eleven times in their working careers – a practice which used to bring suspicion upon workers for failing to keep a ‘steady; job. There is a widespread illusion that corporate ’emergency measures’ to promote survival in a rough economy, will change when times improve. The assumption of a return to older standards of loyalty to a long-term, devoted workforce appears to be unfounded optimism. The NAFTA agreement may be philosophically valid in its pursuit of global cooperation in business but the reality of this particular agreement subverts that endpoint. Instead of increasing respect and remuneration for workers globally, it appears to prescribe a challenge to corporations to enrich their Boards of Directors through excessive cutting of costs for labor and quality materials.

Classic capitalism envisioned a world in a firm collaboration between workers and employers, essential to efficiency in production and beneficial to both sides. However, Peter Drucker corrected that pipe-dream when he redefined the status of workers to that of a commodity. Training enables productivity to increase even where wages remained at low levels in modern society. This was adequately demonstrated in developing countries and the recent suicide of a Chinese worker tells the tale in this article by the NY Times detailing enormous profits generated through the regimentation of labor in a life maximizing hours devoted to repetitive tasks through provision of living quarters and mandatory overtime, among other methods of concentrating the working experience. The ‘sweat shop’ mentality is not unknown in the US – ask the child of any immigrant about their parent’s and grandparents experiences. Any degradation of the individual via labor abuses is itself a mirror of the degradation of judicial systems. Business has become ‘transnational’, without loyalty to any particular government and largely immune from traditional legal remedies for injuries or injustices. Governments are placed under the regime of businesses outside of their borders.

The general public is comprised of workers. Workers, reduced to commodity status, cannot attain the goals set for sustainable business practices. Our citizens are becoming a subsidiary of the corporation I refer to as America Ltd. The ‘unlimited’ promise of a constitutional government became lost when law ceased to be an instrument for justice. Now, it is a quick buck for a few lawyers and is held in contempt by the general public without an actual understanding of why the legal process has become so reviled by the very people it is supposed to serve. Until, that is, someone realizes they’ve been harmed. Let’s look at that next over a hot cup of McDonald’s coffee in Part II, ‘Remembering the Principles’ here. Part III, ‘Enforcing the Principles’ is here. Part IV, here.

(revised, 8/7/10)
Interesting link here to the Trial Warrior Blog by a Canadian lawyer for an international perspective on law practice.

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