Changing the American legal system

[nerdanel]

(Thread idea sparked by Voronwë's "The Spirits of Africa" thread in the Tol Eressëa forum. I am interested primarily in discussing the American legal system, although I'm interested in analogies to other "systems" that others might feel are relevant. Also, I have a slightly greater interest in discussing the civil system than the criminal system, although I'm fine with whatever direction the thread takes.)

"You need to be inside the system to change the system."

As a third-year law student on the verge of becoming a part of the system, I wonder keenly about the meaning of this sentence, at once so simple and so complex. In particular, a few questions have arisen persistently for me over the five preceding semesters, that I would like to offer at the start of this discussion. Really, this thread could proceed by addressing any ONE of the questions that I'm throwing out. If you have thoughts on any part of this post, I would love to hear them.

(1) What, exactly, is wrong with the system? (Please use no more than one million words in your answer.)

I know of no one who does not agree that the American legal system is flawed immeasurably. However, we all disagree on the ways in which this is true. I'm interested in hearing people's thoughts on two things:
- the principal ways in which you believe the system is flawed. Try to stick to the above word limit.
- the effect of attorneys and judges within the system, all swaying the system slightly in the direction they'd like for it to go. Is the net effect zero? What can an individual attorney committed to the abstract principle of justice, and with a specific conception of what "justice" means, do to introduce that conception into the system in a way that's not promptly cancelled out by the principled efforts of other attorneys with different views (or the unprincipled efforts of "hired gun" attorneys)?

(2) Power imbalances within the system

The "justice" our system deals out is often impacted by the disparate resources available to litigants. In my limited experience, I have been awed beyond measure at the practical resources and attorney firepower that large law firms can provide to their corporate clients. No expense is spared on behalf of clients who can pay legal bills of millions of dollars per month. Often, the adversaries of these corporate clients do not have comparable resources - a common example might be an employment discrimination case, in which the plaintiff is a single individual alleging discrimination, and the defendant is a large corporation. Another example might be a copyright case, in which the plaintiff is a struggling musician alleging that a famous singer signed to a major label has breached his copyright, and the defendants include that well-off singer and her powerful record label. Is it not clear that the playing field is uneven? Is it desirable to level the playing field? How can this be done?

(3) Assimilation into "the system"

It's probably not too controversial to allege that part of the problem with "the system" is the actions of a subset of powerful or well-connected individual or corporate actors. How far into the system can you venture while still avoiding assimilation? To effect change, must one fight the actions of these actors "from the outside" - say, by litigating against them? Is it possible to work for them, or with them, and effect change that way, or is assimilation in such a case inevitable?

(4) Adversary system (do I need to explain what this is?)

To what extent is the adversary system itself - the very setup of our justice system - a part of the problem? To what extent does it invite overly litigious behavior? Can an adversary system lay any claim to providing "just outcomes" in a system with the above-mentioned power imbalances? How should we integrate ADR (e.g. mediation, arbitration, collaborative lawyering) into the system to achieve more just outcomes?

(5) Indigent clients

It seems clear to me that a fundamental problem with "justice" in our legal system is that it is relatively inaccessible to those for whom representation is not available. Does this give rise to a moral duty, incumbent on either individual attorneys or the profession at large, to provide this representation? What responsibility, if any, should individual attorneys bear for changing the situation?

(6) Perception of attorneys

Most of you who are not attorneys have a pretty darn negative perception of the profession. Why? (I know there are at least two million valid answers to this question, but I want to hear yours. Feel free to be blunt.) What, if done by those inside the system, might alter your perception positively?

Just a few ramblings. I could easily add fifteen more categories to this discussion, but regardless of what I put in the first post, this discussion will chart its own course if other people are interested in the subject. Also, almost every question above could probably merit its own thread. This post is really just an excerpt of the questions that I've been discussing with people over the past year. Sue me.

[yovargas]

(4) Adversary system (do I need to explain what this is?)

Yes!

Is it not clear that the playing field is uneven?

Yes!

Is it desirable to level the playing field?

Yes!

How can this be done?

I don't know! :|


I don't have a particularly negative view of lawyers, btw. Much like cops, who I know a lot of people (specially a lot of young people I've met) have negative views about, but I don't think it's fair to say the whole profession is rotten because of the bad apples.

[Voronwë the Faithful]

Ho boy! This needs a week's answer, or none. Look for me in a week.

(And I do have a pretty negative view of lawyers, btw.)

[nerdanel]

I could write pages of musings on that, literally.

Don't say you weren't warned. But, I probably shouldn't have put so much into one post. Just respond to whatever suits your fancy.

For yov:

The simplified version: the adversary system is the assumption within our legal system that if each side in a given case has strongly partisan representation, then two (or more) quite different versions of what happened will emerge during the litigation process that culminates in the presentation of evidence at trial. The factfinder/impartial arbiter - the judge or jury - will then be able to weigh the evidence and distill the "truth" from the divergent theories of what happened that the parties have presented.

In other words, the traditional litigation model here in America.

A couple of problems with the adversary system to consider:
- It works less well given the power imbalances that I previously mentioned. Litigation is very expensive, and the moment that one side does not have the resources to play the game as well as the other, the "truth-finding" process becomes skewed, IMO.
- There are some situations where operating within the adversary model is not ideal for the parties involved. Family law contexts such as divorce are an example - where, in many cases, a facilitative process to dispute resolution would do far less harm to the parties' lives than the competitive, winners-and-losers setup that the adversarial system envisions.

One of the chief alternatives, used in a number of other countries, is the inquisitional system. I've never learned the details, but I know the general idea is for the fact-finder/judge to be able to ask questions and actively involve herself in determination of what occurred.

[yovargas]

In other words, a prosecutor vs a defendant.

I used to be a big fan of the lawyer show The Practice, and it struck me often how something seemed off about this kind of system. The goal of the lawyer should be to provide justice, right? But in this system, if a defending lawyer knows that the defendant is guilty or the prosecutor knows that the defendant is innocent (for whatever reason), well, it doesn't matter because in reality they're here to try to win not to try to present the truth. The show took advantage of that to create some compelling drama designed to make the viewer wanna throw stuff at TVs.

[Ethel]

Interesting - though dauntingly massive - topic, tp. The biggest problem with our legal system is that it does not reliably produce justice. Several of your points speak to that. Yet I can't think of a legal system anywhere that does. They're all complicated and process driven - unless they're authoritarian and weighted toward the prosecution, which doesn't produce justice either.

To pick at one small corner of this huge blanket... are adversarial proceedings the right answer in all cases? I'm thinking here of medical malpractice. We've heard a lot in recent years about malpractice premiums driving doctors out of the business. I recently read an excerpt from a book called The Medical Malpractice Myth, though, and I thought he made some interesting points. (You can read the excerpt here) I thought it was interesting enough that I'll probably get the book.

Some key points:

~ Medical malpractice is a sadly widespread reality which injures tens of thousands of people every year.

~ The vast majority of victims of medical malpractice do not bring legal action. When they do, it's as often because they want answers as because they want compensation.

~ Most frivilous malpractice lawsuits disappear before trial.

~ Malpractice premiums are not fully explained by jury awards.


It seems to me that this is one of those areas where alternatives to the courtroom/adversarial system might be worth trying. It often happens that when a doctor makes a mistake, everyone clams up for fear of damaging admissions that could later be used against them. Perhaps some kind of medical arbitration board might work better than the trial "lottery" approach? Say with a judge, a physician and a medical ethicist making determinations? Where all medical records would be shared, testimony from the medical professionals could be taken, and compensation could be limited to actual damages.

That's just off the top of my head, and I'm sure there's plenty wrong with it.

[Jnyusa]

tp,

I'll take a stab at this because, not having to deal often with the justice system, my list of gripes is rather short.

(1) What, exactly, is wrong with the system?

The one big reformation I would like to see in my lifetime is the abolishment of family court. None of the rules that apply to other courts apply there and it is damaging the children of our country immeasurably. If a child or spouse is abused, the case belongs in criminal court, not family court. If we have a legislated formula for child support (and we do), then it should be enforced in criminal court, not family court. If people are terminating the contractual terms of a marriage, it should be handled as a tort.

The whole quagmire of consultants and Master's and Judges and Appeals with zero actual enforcement power is one of the biggest productivity killers in the country. It's supposed to eliminate the adversarial relationship but from what I've seen it only aggravates it.

So that's my opinion about that.

(2) Power imbalances within the system

It is certainly true that the justice system favors the wealthy; this is especially evident where corporations are involved. But I think that the grossest inequities in our justice system occur long before the defendent reaches the courts.

We rely upon our legislators on the one end to plug inequities by passing new laws, and upon our courts on the other end to provide impartial judgment, but we pay little attention to the great big troll in the middle who decides in every case who among us will have to obey the law and will be arrested if we do not, and who among us will be let to slide.

Here, from everything that I have observed, the racial and gender discrimination is intense.

Anecdotal example: I've been called for jury duty many times but usually either they don't need me or I get a teacher's exemption. In the past two years, though, I've been called twice and my teaching schedule has allowed me to do it as long as the jury is not sequestered so I've gone through voir dire. Both cases were criminal cases involving minority defendents. One of them was a death penalty case. (Lucky for me they never, ever put college professors on actual juries.)

The most recent case was an assault case, and though I never get to hear actual testimony, they do state the charges during voir dire, so you get a picture of what happened. In this case the defendent was an African American male, in his late twenties or early thirties.

The judge enters, we rise, he sits, we sit, he talks: "It is alleged that on the afternoon of xxxx Mr. Smith went to the home of Ms. Jones, his former wife, and confronted her in the street. He was inebriated at the time. He grabbed her arm and shouted at her. He is charged with simple assault, criminal nuisance, and making terroristic threats."

Because Ms. Jones is the former wife of Mr. Smith, this is a domestic abuse case so the Judge asks all jurors who have been personally involved in domestic abuse which ended up in the court system or resulted in a restraining order to raise their hands. There are 50 potential jurors sitting in the room and 13 of them raise their hands, which speaks volumes about our society to begin with. All are interviewed and, as I see when the selection process is done, all are excused.

Now, these 13 jurors (or their spouses, as the case may be) are the lucky ones. There are doubtless others, like me, who have never succeeded to get a spouse actually arrested for simple assault, criminal nuisance or making terroristic threats. My former spouse ambushed me in a parking lot, assaulted me by whacking me in the head with a briefcase, then chased me into a building threatening to kill me. I called the police and was told, "call your lawyer, this is domestic," even though our divorce had been finalized three years earlier.

If I had a nickel for every time he threatened to kill our children to punish me I would be a wealthy woman ... and there are plenty of men who actually do that, so there's no reason at all for the police to look the other way.

But you see, my ex-husband is WHITE and the police in our township feel all queasy about arresting WHITE people.

If you are BLACK you cannot drive through our township without being stopped by the police. At least twice a day I see a Black person pulled over by the police. They must have been doing something - yes, I'm sure they were! They were driving 45 mph in our 40 mph zone. That is, in fact, against the law.

Most of the people in our township are stockbrokers and lawyers and such. In a population of 14,000 we have one African-American family living here. Well, the stockbrokers etc. all drive SUVs because you never know when you're going to have to herd some cattle on your way to work in the morning. These guys drive like maniacs. Two blocks up the street from me is a school zone, and these guys actually drive in the bus lane to pass on the right those cars that are going 15 mph during school hours. There is always a cop parked on the median strip during school hours and he waves to cowboy Bob as cowboy Bob zooms through the school zone in the bus lane.

There is racial profiling with avengeance in my township. Whose responsibility is it to get rid of that, when all the residents of the township are White and want things to be done this way? I know in some vague distant part of my brain that racial profiling is against the law, but I have no idea where to take my howl when I see this happening.

So, to get back to this assault case ... I'm listening to the judge say, "he grabbed her arm" and I'm thinking, if this defendent were White there's not a chance in hell he'd be up on assault charges. And yet, the jury will probably be compelled to find him guilty because whatever he did probably does fall under the definition of simple assault. Being Black, he will certainly serve some jail time, assuming there’s room for him in the jail.

Knowing a little bit of the statistics behind our prison population, I have drawn the conclusion that prison is just our modern version of the plantation. It is a place to store African-Americans. The mechanism that accomplishes this is the police department, not the court system. They simply enforce the law among minorities and look the other way for White folk. By the time the case goes before a jury, the outcome is fait accompli because the person really did break the law, but at what point do we say, ‘wait a minute - why doesn’t everyone who breaks this law end up in front of a judge?’

In the end, this is as awful for the White folk as it is for the Black folk because if you’re the victim of a crime committed by a White person you haven’t got a prayer of receiving justice. And guess what? - just as many crimes are committed by White people as Black people. You’d just never know it to look in our prisons.

Tidbit from a 60 minutes show some years ago: If you’re a White woman murdered by your White husband, you can expect him to serve, on average, a five year sentence for killing you. I don’t know what is the average sentence delivered to Black husbands for the same crime, but I know that it is four times more likely to be the death penalty.

(3) Assimilation into "the system"

The same problem exists in politics, via the party system. Resistance is futile.

(6) Perception of attorneys

Not good. But you know what I think one part of the problem might be? They’re paid by the hour. (Actually, they’re paid by the minute.) And you’re really not safe going to court without one. At this point I would almost advocate a regional ‘treatment based fee system.’

I bet that would cut the motions by 99.9% and divorces would go back to being 2 day procedures instead of 12 year procedures.

Jn

[Voronwë the Faithful]

Some of us aren't paid by the hour.

[Jnyusa]

That's right, Voronwë. And I guess liability attorneys are not paid at all unless they win a settlement for their clients.

I don't want to imply that all lawyers are overpaid either, because I know that public interest lawyers are not.

There doesn't seem, though, to be any shortage of people willing to enter the profession.

[Voronwë the Faithful]

I wouldn't mind being just a little bit more overpaid. I lost two major cases recently, meaning that I wasn't paid a cent for the probably 600-700 hours that I spent on the two of them in total (actually, I'm out about $10,000 of my own money that I spent on the cases).

I just had an extraoridinarly demoralizing phone conversation with a woman wanting me to handle a sexual harassment case for in which she was exposed to some dirty jokes at some union meetings. When I explained to her that I did not believe that her situation was sufficiently severe and pervasive to constitute an actionable sexual harassment case, she proceeded to berate me for allowing women to be so horribly mistreated for now being willing to take a case that I did not believe was winnable. She wanted to know what law school I attended so that she could know what law school produced such horribly unethical attorneys. This despite the fact that I handle more sexual harassment cases then any attorney in the area.

And no, this doesn't really have anything to do with tp's questions (which I do still plan to answer), but it seemed to be a convenient place to post it).

[nerdanel]

Thanks yov, Ethel, and Jn for your responses. I do intend to respond to them the next time I post in this thread; however, one of the experiences that I had today is, in spirit, relevant to this thread, and I wanted to share my journal entry on the subject here.
[EDIT Voronwë - sorry about the spot of bad luck with those cases. And this is a perfectly legitimate place to post what you did.]

Today, I completed the final task of my second and final law school clinical by representing a homeless client in a restraining order hearing that occurred in state district court. The hearing was in all respects a success: the restraining order we were seeking was granted, and as importantly, the client was granted spousal support, something that district courts are ordinarily loathe to award during restraining order hearings in this state (they prefer that the probate court handle support issues).

This client has been through things that my life experience does not even permit me to comprehend, except on an intellectual level. She has been through so much, and she’s still standing – but she herself did not realize that until today. In recent weeks, I’d worked with her and prepared her to speak in court, but despite my encouragement, she was scared, confused, hesitant, hurting. Not today. She waited patiently as defendant’s counsel and I made our informal, RO-hearing versions of opening statements. Then, with head held high, speaking softly but articulately, she requested and received permission to address the court. With poise that most lawyers practicing in front of this court do not show, and never losing eye contact with the judge, she explained what the defendant had done to her, what relief she was seeking from the court, and why she believed it justified. After listening to her carefully, quietly reading over the evidence we presented (the defendant and his attorney had come empty-handed), and asking me to respond to some further questions, the judge granted all the relief that she sought, including additional temporary orders.

What a moment it was, when she spoke. To see someone who had been so wounded, physically and emotionally, own what had happened to her and advocate on her own behalf – it healed something inside her, and sparked something inside me. Speaking with her afterwards, I was gratified to see what it had done for her. When others have sought for decades to silence you and to speak for you...to speak for yourself, particularly in front of them, is to take that control back from them, to become empowered. For my part, I was thankful to have been able to participate – and I was thankful that the court system participated – in however small a way, in her process of recovery.

There was no glamour to the process. The issues of law involved could not have been more straightforward. What happened this morning was merely the smallest of blips on the busy docket of a state trial-level court. It was a moment so insignificant that I would wager now, a mere four hours later, the judge involved would scarcely recall it.

And yet, for my client, it could not have been more significant. In that moment, she understood: she was not worthless, she was not incompetent, she did not need the protection of an abuser or anyone else. For the first time, she realized that she was a survivor, and she realized that she could go right on surviving, with the help of a court that exceeded her expectations by granting her the justice she sought from it.

As for me, the privilege of preparing her for and participating in that moment in her life meant more than any salary check I have cashed from a corporate law firm. Knowing that she will now have the means to find housing and might, just might be able to move past the cycle of violence that has haunted her adult years is somehow more real, more meaningful, than the wining and dining and VIP treatment during recruiting and summer associateships that my classmates and I have received from the law firms that represent the richest of the rich. For now, I simply note that I had these thoughts, knowing that in the years ahead, I will need to make some difficult determinations about my priorities and aspirations.

As I returned from court, the sun was shining brightly above the Charles River as it turned the ice to sparkling water. For my client, the sunshine was a little brighter today, the skies slightly more blue - as was reflected in her smile (for the first time, irrepressible) as she embraced me. To make the sun shine brighter, to turn ice to water, for one person – or to empower them to do this for themselves – what a worthy objective, both personally and professionally!

As I have proceeded through law school, I have grown steadily more jaded and disillusioned (a common phenomenon in JD programs). It was helpful, recently, to pause to reread my journal from 1L year. At the close of the first week of fall classes that year, I wrote,

The most fascinating thing about law school that I wanted to mention is this - when I arrived here, I thought that it was going to be three years of learning about the laws of our country. Sure it is, but it's something far more fundamental - in asking the questions, 1) What laws should we make, and 2) How should we enforce them, we are asking: “What sort of society, as humans, do we want to create?” And I think that THAT is a question worth spending three years of my life to try to answer.

I have no long-term interest in family law or DV advocacy. I do, however, have an interest in doing something more with my career than playing hired gun to the highest bidder, in using the credential I will receive in June for something more than simply expanding my bank account. In the long term, I want to do work that I find meaningful and gratifying, and in so doing, to make things better for at least a few others.

Most of all, though, I want my career to inform my 1L question: “What sort of society, as humans, do we want to create?” Today served as a reminder that maybe that can be the case.

[Jnyusa]

Lovely, tp.

Jn

[Primula Baggins]

And with the credentials you have earned, tp, you can make a huge difference, once you find the way that is right for you. That must be a wonderful reflection to make.

Edit: to remove something that looked like a slam that wasn't. I am inattentive.

[Voronwë the Faithful]

Note: This post may contain some thoughts that some people may find off-putting. I find some of them off-putting. But they are as honest as I can make them. Proceed at your own peril.

"You need to be inside the system to change the system."

As a third-year law student on the verge of becoming a part of the system, I wonder keenly about the meaning of this sentence, at once so simple and so complex.

Well, I'm going to have to back up and clarify for a second here, since this is my statement being quoted. But the 'me' that is being quote is the 'me' that decided to go to law school, twelve years ago. The 'me' of today has a somewhat different perspective. I'm not really inside the system. I only pretend to be. I don't believe that I would be able to truly work inside the system, either in some law firm, or working for some governmental or quasi-governmental agency. At most, I pretend to be a part of the system, when I need to. And I found that changing the system is not really the task that I've undertaken. Its more to make the system work just a little bit better for those that have the deck stacked against them.

(One of the most gratifying things that often happens to me is when one of my clients says to me 'you don't seem like a lawyer' )

(1) What, exactly, is wrong with the system? (Please use no more than one million words in your answer.)

Nothing. The system is what it is. Its not perfect, and its not meant to be. I can't comment on the judicial systems from other places, because I simply don't know enough about them, but I view the Anglo-American common law judicial system with great awe and even reverance. The flaws in the system are not flaws in the system, they are a necessary reflection of the flaws of the imperfect human beings that necessarily make the system work.

the effect of attorneys and judges within the system, all swaying the system slightly in the direction they'd like for it to go. Is the net effect zero? What can an individual attorney committed to the abstract principle of justice, and with a specific conception of what "justice" means, do to introduce that conception into the system in a way that's not promptly cancelled out by the principled efforts of other attorneys with different views (or the unprincipled efforts of "hired gun" attorneys)?

tp, I'm afraid you are going to find that the hired gun attorneys outnumber the principled attorneys by at least 100 to one. So no, the net effect is not zero, in the way that you mean. But there is leveling effect that is noticable when you look at the development of the law over time, as opposed to focusing on individual situations. Advancements of the law are a little like a spiral starecase in an Escher drawing - going both directions at once - but the broader view does show a clear progression over time.

The need for lawyers and judges is the same as the need for doctors and scientists -- in a complicated society the language of the law is necessarily going to be complicated and there is need for people who speak that language. Lawyers and judges are no more fallible then any other group of people, but as the guardians of society's ethics our failings are more emphasized.

(2) Power imbalances within the system

The "justice" our system deals out is often impacted by the disparate resources available to litigants. In my limited experience, I have been awed beyond measure at the practical resources and attorney firepower that large law firms can provide to their corporate clients. No expense is spared on behalf of clients who can pay legal bills of millions of dollars per month. Often, the adversaries of these corporate clients do not have comparable resources - a common example might be an employment discrimination case, in which the plaintiff is a single individual alleging discrimination, and the defendant is a large corporation. Another example might be a copyright case, in which the plaintiff is a struggling musician alleging that a famous singer signed to a major label has breached his copyright, and the defendants include that well-off singer and her powerful record label. Is it not clear that the playing field is uneven? Is it desirable to level the playing field? How can this be done?

I am well situated to respond to this question, tp, because as you know I mostly handle employment discrimination and harassment cases. Generally speaking it is me (no partner, no associates, no secretary, no paralegal, no nothing) against the full resources of a major law firm, usually backed by large corporate dollars and/or the full power of the recalcitrant insurance industry. And let me tell you, the answer to your question of "how can [leveling the playing field] be done?" is "it can't." At least not without completely jettisoning the capitalist system, which I believe would create such chaos we would never survive it.

Not only do these corporate attorneys have the advantage of infinitely greater resources, they also have the advantage of often being completely without scruples. And mark my words, in the adversial system that we have, that is a very big advantage.

However, there are two ways that a person like me can combat those advantages. The first is to simply be smarter then them. Here is where the beauty of our legal system comes into play, because the common law (the body of published court authority reaching back over the decades and even centuries) allows me to enlist as allies brilliant men and woman who have developed certain legal principles in the past, and to use their ideas to help form a persuasive argument. No amount of spending or bullying can make those precedents go away, and its up to me get them to get up dance to my tune.

The real ace in the hole that someone like me has is the ability to present those arguments in a creative way, and to think outside the box. There have been a number of times when my ability to approach a particular situation in a novel way has been the catalyst to successfully settling cases that looked to be reaching an impasse. Sometimes just the surprise of having to defend the case from a different angle than expected is enough to jolt the defendant's attorney into encouraging his client to settle. Or just using language in a persuasive way. Oftentimes even good lawyers fall into very predictable patterns and if you can find a way to bread through that, it can make all the difference in the world.

I don't dispute that the deck is stacked against the little guy. The people with the most money are naturally going to have the most influence on the people in power. But our system does at least provide an opportunity for redress of some of the most egregious abuses of the system. Is that enough? I don’t know. But at least its something.

(3) Assimilation into "the system"

It's probably not too controversial to allege that part of the problem with "the system" is the actions of a subset of powerful or well-connected individual or corporate actors. How far into the system can you venture while still avoiding assimilation? To effect change, must one fight the actions of these actors "from the outside" - say, by litigating against them? Is it possible to work for them, or with them, and effect change that way, or is assimilation in such a case inevitable?

tp, you have a pretty good idea of what my answer to this question is, based on what I’ve said here, and what you know of my practice in general. But my answer is not necessarily the right answer. Can you make a difference from deeper within the system? Absolutely. Probably in some ways even more of a difference. The question is, are you willing to pay the price necessary to do that? It will impose a heavy toll on you.

(4) Adversary system (do I need to explain what this is?)

To what extent is the adversary system itself - the very setup of our justice system - a part of the problem? To what extent does it invite overly litigious behavior? Can an adversary system lay any claim to providing "just outcomes" in a system with the above-mentioned power imbalances? How should we integrate ADR (e.g. mediation, arbitration, collaborative lawyering) into the system to achieve more just outcomes?

This is multi-faceted question.

The most common form of ADR, contractual arbitration (where parties agree that any dispute between them will be submitted to binding arbitration instead of litigated in court) is increasingly becoming one of the main tools that corporate America uses to consolidate its power. Arbitrators are notoriously pro-business, and arbitration agreements are usually imposed upon individuals of lesser power, whether its an employer requiring new employees to sign an arbitration agreement as a condition of employment, or insurance companies requiring their customers to agree to one as a condition of getting insurance.

Mediation, on the other hand, is probably the most effective tool in reaching a compromise resolution to difficult cases like the employment cases that I handle. I would estimate that about 2/3 of my cases eventually settle at a mediation. So ADR does play a big role in a litigation practice like mine.

As for cooperative lawyering, it can be useful in some divorce proceedings, but generally speaking it is not practically applicable to most disputes that go to litigation.

(5) Indigent clients

It seems clear to me that a fundamental problem with "justice" in our legal system is that it is relatively inaccessible to those for whom representation is not available. Does this give rise to a moral duty, incumbent on either individual attorneys or the profession at large, to provide this representation? What responsibility, if any, should individual attorneys bear for changing the situation?

This is an easy one for me, because the vast majority of my clients are in dire financial straits because they have just lost their job. I generally not only risk my time spent on a case, but also put up the costs of the litigation, which can sometimes run into the tens of thousands of dollars. I also do do court appointed criminal appeals for indigent clients convicted of crimes (the only criminal work that I do. But I would say that the responsibility that any other individual attorney has is to do what their own conscience tells them to do. Anything other then that would be futile to expect.

(6) Perception of attorneys

Most of you who are not attorneys have a pretty darn negative perception of the profession. Why? (I know there are at least two million valid answers to this question, but I want to hear yours. Feel free to be blunt.) What, if done by those inside the system, might alter your perception positively?

Lawyers have a bad reputation because they are often greedy, power-hungry, deceitful, aggressive, untrustworthy, selfish, arrogant, unscrupulous people. In other words, they are human beings. As I said before, I don’t think that lawyers are any worse then any other group of people. Its just our failings necessarily get focused on more closely then most. And I’m okay with that.

[sauronsfinger]

I have heard that when Mao took over China in 1949, he made two occupations illegal --- lawyers and prosititutes. Personally, I wonder why the prostitutes did not sue after such a slander being lumped in with such an unsavory lot as lawyers.
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Two lawyers are shipwrecked on an otherwise deserted island with enough food and fresh water to sustain life. After a few years, a gorgeous naked woman in her mid 20's is washed upon the beach alive but slightly groggy.

Lawyer #1 --- "should we screw her?"
Lawyer #2 --- "out of what?"
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How do you tell the difference between a dead poisonous snake on the side of the highway and a dead lawyer on the side of the highway?

There are skid marks in front of the snake.
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Having said that, I am reminded of Clarence Darrow - one of the great attorneys of all time - who when charged with jury tampering realized that the first thing he needed was a good lawyer. As would we all.

[nerdanel]

Some really thought-provoking, thorough responses, to which I'm going to respond one at a time (plus SF stepping in to do the inevitable - provide lawyer jokes for which the grand punchline is, "OMG! Lawyers are such horrible people and should die!!! Without leaving skidmarks!!!!" I was wondering when someone would do that. I'm surprised we got in thirteen posts before it happened. I'm pretty sure Prim should do the honors, but I'm going to cut to the chase. )

Thanks also to Jn and Prim for the responses regarding my post from yesterday. Prim, I saw what you posted yesterday. Do you mean that it might have seemed like a slam against the publishing industry? *confused* I did think it gave you too little credit for the good work that you do.

The goal of the lawyer should be to provide justice, right? But in this system, if a defending lawyer knows that the defendant is guilty or the prosecutor knows that the defendant is innocent (for whatever reason), well, it doesn't matter because in reality they're here to try to win not to try to present the truth.

I'm going to give you the explanation that I've heard given to first-year law students. I mostly buy it, although it's to some extent a legal fiction.

For the adversary system to function, each party must embrace its defined role. Picture a continuum: at one end is A (the plaintiff's or prosecutor's version of the story) and at the other B (the defendant's version of the story). When the parties present A and B to the court, the judge/jury can determine whether the "truth" is A, B, or somewhere along the continuum between A and B.

There will be cases in which the defendant's attorney knows that her client is guilty (for instance). Here, she is bound by ethical rules that restrict her ability to make arguments or submit witness testimony which she knows to be false. The attorney is a dual agent - she is her client's advocate AND an officer of the court. She may not betray her latter function by knowingly presenting false evidence to the court. (Granted, attorneys frequently violate the ethical rules, but that is a separate problem - a human flaw, not a system design flaw.) However, there will be many cases when the attorney does not know conclusively that her client is guilty, but she strongly suspects based on the evidence. What should she do?

The attorney has not heard the plaintiff's/prosecutor's side of things. She is less well-positioned than the fact-finder to determine where on the A-B continuum the truth lies. If she takes it on herself to decide that the truth is not B (her client's claim) but lies closer to A, and presents this modified version of the case to the court, the fact-finder's ability to distill the truth from the full complement of evidence is compromised. This is so because this fact-finder is now denied the opportunity to hear the strongest possible case that could be made for B; the continuum is narrowed.

Same for the plaintiff's attorney. I'm not going to touch with a ten-foot pole the question of prosecutors using the might of the government to charge defendants they know to be innocent. Very different ramifications there.

[Ethel]

tp, I apologize for my insipid post in this thread. Please do not waste any time responding to it, if indeed you were inclined to do so.

[sauronsfinger]

gee whiz... were the jokes at least funny?

lighten up a bit ... its not like we are debating the evils of libertarianism....

[Ethel]

I am sorry. My post was graceless and uncalled for. I apologize to everyone in general, and tp in particular. Please do carry on. I know you all have lots of interesting things to say.

[Jnyusa]

Um ... Ethel, I think tp was addressing sf, and sf was addressing tp ... about the lawyer jokes.

Jn