In Defense of Our Legal System (article)

Let me begin with a “bold statement.” Systemically, our legal system is perfect. Such imperfections as it may have are the direct product of human nature and/or our economic system. Even though it is systemically perfect, naturally no set of rules can always produce the “correct” result. In this essay I will compare the legal and medical systems and discuss the following issues: elitist, anti-democratic notions of legal reform, the increased punitiveness of law (weakening the Bill of Rights), and the danger to our system of justice from “reformers.”

If I were stricken by some malady, one physician would not muster the arguments for a certain course of treatment and another physician, the arguments for another course of action (or, inaction), and then both of them present their respective arguments to some disinterested decision-maker. Au contraire! It has been my experience that medical decision-making more closely resembles Lenny Bruce’s famous aphorism about the law—“In the halls of justice, justice is in the halls”—than it does the processes entailed in either the civil

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or criminal courts of the United States. The time lapse (and concomitant opportunity to reflect) from a felony arrest to final disposition far exceeds the duration of most medical procedures (except, of course, palliative care).

Further, for a miscarriage of justice to occur in the legal system, there must be the simultaneous failure to fulfill their duties of the plaintiff’s counsel, defendant’s counsel, and the judicial officer. (An expert or professional who cannot articulate a position so that it is fully understandable by the average citizen is not in full command of the discipline. As Wittgenstein said, “The limits of my language are the limits of my understanding.”) If any of these three does their job, justice—like an airplane limping in on one engine—will basically be served.

Contrast this with the medical model where the operative decisions are most frequently made by a single physician working alone. Thus, the “Lone Ranger” is the basic model for medical decision-making, as opposed to a troika in the law. Consequently, I would suggest that it is almost tautological that the inherent dialectic of the legal system generally produces better results than the medical decision model.

Most people, however, would blanch at the thought of consigning the ultimate decision, say, between radiation treatment and chemotherapy, to a group of lay people. But why not? At present, one layperson—the patient—with a single source of information makes that decision. The reasoning here is, again, basically akin to that of those who believe that appointed judges are somehow removed from the political process. (“What is a federal judge”, Professor Robert Brancher of Harvard Law School asked his students in the early 1960s, “but a lawyer who knew a politician?”)

I would add to my earlier “bold statement” a corollary: Most, if not all, of the criticism of our legal system comes from social elitists of one stripe or another, exemplified, first and foremost, by those who favor such “improvements” as an appointed judiciary. Most of the rest of it comes from those who oppose popular (i.e., jury) decision-making and prefer institutionalized decision makers. More importantly, perhaps, I would suggest that the subtext with both the argument for appointed judges and against letting a panel of lay persons make medical decisions is at bottom an anti-democratic one. In my opinion, this is a form of elitist thinking that some may favor but any democrat must eschew.

It has been my general observation that other than the “fine tuners”, the critics of the American legal system, fall roughly into two categories: the “amateurs” and the “professionals.” The former are driven by anecdotal evidence, usually something they found in the back pages of their morning newspaper or which was broached on a talk show: the Simpson acquittal, the McDonald’s cup of scalding coffee, or the annual earnings of some high-rolling personal injury lawyer. The Archimedean point here is that someone is getting less punishment or more money than USA Today editors or talk show hosts think they deserve. The “professionals” are those regular litigators (insurers or corporations) who want to blunt the single advantage that an average citizen with a claim against them has, namely that those six to twelve people in the jury box will come a lot closer to feeling Jane Smith’s pain than they will to worrying about General Motors’ or the Consolidation Coal Company’s balance sheet.

With regard to criminal law, some 35 years ago when I started practicing law, 10 years was considered a very long prison sentence. Now it is deemed the proverbial “slap on the wrist.” We have, within my professional lifetime, stood Blackstone’s famous maxim on its head. It should now read: “It is better that 99 innocent people be punished than one guilty person go free.” The “war on drugs” and drunk driving cases have combined to erode the Bill of Rights to such an extent that basically all that remains is the provision against the quartering of troops in private homes. One of West Virginia’s great liberal populists, former State Supreme Court Justice and now Attorney General Darrell V. McGraw, Jr., told me two decades ago, “In drunk driving and child abuse cases, you need an especially good defense.” The subtext was that the old standard—beyond a reasonable doubt—was basically no longer operative in “hot button” cases. The major growth industry in the intervening years has been prison construction.

Just about the only area of law where a litigant can get Mr. Dooley’s “splendid poor man’s chance” is in personal injury cases. This is because of our long-standing system of contingency fee arrangements (which, until recently, were abhorred by our British cousins). The critics of the ethics of the contingency fee system are absolutely right: The lawyer is converted from being an advocate, an officer of the court, into a partner in the litigation with a financial stake in the outcome. The great systemic flaw with personal injury law,

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though, is not the contingency fee; rather, that it is based on the antiquated concept of “fault.” What societal principle is advanced when Mr. Jones who was struck by a meteor shard is consigned to a life of penury and woe, while Mr. Smith who was injured because of defective manufacturing lights at a railroad crossing collects megabucks?

I doubtless sound a little defensive. As someone who has spent nearly 35 years doing trial work in the state and federal courts of some 10 or 12 jurisdictions, I get the same uneasiness at discussions about the legal system that Germans of a certain age used to display when someone started questioning them about how they spent World War II.

The detractors of our legal system are soul mates of those who level broadsides against our political system, of which Reinhold Niebuhr wrote, “It is the sad duty of the politicians to work for justice in a sinful world.” I think that his words apply with equal force to the legal system, and, to my mind, the command in both is the same: “Justice, Justice, thou shalt pursue.” Nearly every critic of the legal system that I am aware of wants to do one basic thing: They want to take power away from the weaker side in litigation and give it to the stronger. From tort “reform” to victim’s rights to changes in the law of search and seizure, it is the same song being played on different instruments. The dismaying fact is that these critics are prevailing.

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