Eugster Law & Comment

George Orwell once wrote:

Serious sport has nothing to do with fair play. It is bound up with hatred, jealousy, boastfulness, disregard of all rules and sadistic pleasure in witnessing violence. In other words, it is war minus the shooting.

Law and lawyering is very much like Orwell’s “serious sport.” 

Now of course you will say “not true, law and lawyering are all about ‘fair play.”  My response is that it should be about fair play but in my experience with most lawyers in the real world of litigation  it is not. 

It is particularly not with regard to the so-called “superlawyers” I have encountered.  Often these lawyers (the ones who have amassed wealth from highly paid practices) are people who play on fear, the predilections and biases of judges and juries, ignore the law and facts, submit briefs which are sophistry and in addition use ad homonym in argument, and, sometimes, engage in conduct which is outright illegal.

One of these lawyers was quite up front about his approach to law and lawyering in one of our cases.  Just after the case was filed he called and in an arrogant, self-satisfied and freightening manner said the case will be “war”, that my client and I would find ourselves in a war and that that his juggernaut of power would destroy us.  He said my client had better settle.  For him, law and lawyering was war.  The shear exercise of power.

I did not accede to his threats nor did my client.  I did not because I thought my client’s cause was just and that she had the law on her side.  I imagine most lawyers in the area would have submitted to the fear one our local superlawyers was trying to instill.

For the most part, I must conclude that law and lawyering, the struggles litigation, is war.  The truly freightening part is this – it is supposed to be a civilized war fought by the rules and based upon the application of law.  One will not find such to be the case in the practical experience of the law and lawyering ins some venues, those not in the high places of the law, in the venues of the hustings.  In the places where judges do not have the time, experience, education, inclination or inner drive to truly be good practicioners of the high offices they hold.  There are some who are not this way, but only some.

Where are those few lawyers of the late 60’s and early 70’s who cared about the poor, the outcast, the overwhelmed, the environment, the public trust, the public interest?  They no longer exist, for the very most part.  The lawyers, judges, people who appoint judges, the people who elect judges, the law schools and the professors of law schools no longer remember them and certainly have no regard for what those few lawyers tried to do back then.  The law schools are not inviting people like Fannie Lou Hamer or Martin Luther King to come to speak to the members of the classes about justice.

The lawyers who cared about justice are gone.  The interest in what these lawyers did or tried to do, is gone.  Now the interest is money and success, just that.  There are no lawyers who are looked up to who really care about the real work and purpose of lawyering, justice.

Pro bono work.  Please, . . . Look carefully.  You will only find pro bono work in reality which is the sort of work the successful sort would find acceptible or currently popular.  And, when you do find something which looks like pro bono work, you will be sure to find a group of lawyers who seek to be paid for their contributions.  See the Davis Wright Tremaine claim for fees in a civil rights case involving the Seattle School District.

The world is considerably different than in was in the late 60’s and 70’s.  It is less.  It is not appealing.  It does not claim much goodness from people. 

The only thing which really inspires us today, is money and war.  God help us all.  Sad, it is July 26, 2008 in America.

In an interview with Bill Moyers, Martha Nussbaum, speaking of the tragic sense of life said she thought ethics was founded upon an inner sense or hope that others could be trusted to be ethical, good.   I later read a comment in conjunction with her book The Fragility of Goodness  that

[s]he eventually rejects the Platonic notion that human goodness can fully protect against peril, siding with the tragic playwrights and Aristotle in treating the acknowledgement of vulnerability as a key to realizing the human good.  Wikipedia.

That is to say, it seems, that human goodness is not something which can be achieved in a material world of personal success and safety.  Human good is a matter of the soul.  A matter of the soul maintaining its truth, its unique, silent, forgiving beauty in sacrifice and suffering, as well as. in the humility to which it might attend worldly success and satisfaction. 

Human good is found in suffering.  It may be that suffering is the only soil in which human good can be cultivated and chosen.

Materialism would tie good to success.  But what success?  Of the souls of Nazi Germany, which would we find lasting, honest, worth loving?  Not those who were on the side of those who were predators of their neighbors wittingly or unwittingly.  No, those who disappeared in the ghettos, the camps, the gas chambers, the long marches.  These are the souls for whom one is in sympathy.  These are the souls for whom compassion and selflessness aspire to become one with.  One must ask himself, where does my love reside?  Where indeed?  With butcher or the butchered?

Martha Nussbaum seems to be aware of the truth.

Martha Nussbaum speaking to Bill Moyers about ethics, trust in others and the hope of such trust, and tragedy on YouTube here.  For more about Martha Nussbaum see Taimur Kahn’s website.

The Washington Court of Appeals, Division Three, decided another case dealing with whether the Washington Public Disclosure Act (RCW Ch. 42.56) applies to non-public entities which provide government services at the behest of the government. Leonora Claire Clarke v. Tri-Cities Animal Care & Control Shelter, No. 25222-1 - III (Apr. 24, 2008). In this case, the court held the PDA did apply.

The issue was the same in Spokane Research & Defense Fund v. West Central Community Development Association, 137 P.3d 120, 133 Wash.App. 602, pet. rev. denied (2006). In this case, the court held that the non-public entity providing government services was not subject to the PDA.

So what was the difference? When one looks at the facts of the cases one will find that the facts of each are not fundamentally different. One will also find that the law applied in one is the same law applied in the the other. The similarity of facts is further enhanced by virtue of the legislative dierection that the PDA is to be liberally construed and liberally applied. RCW 42.56.030.

So what was the reason for the difference? There can be no reason based upon the law. There can be no real reason based upon the facts. So why is there a difference? Is it the judges — not really, because two of the judges were two of the three in both cases. The author of the second opinion (D. Stephens, J), the one in which the court reached the right result under the PDA is clearly a better judge than the other two and significantly better than the judge who was not on the panel in the second case. In addition, this judge is clearly a better thinker than the judge who was the author of the first decision ( S. Brown, J).

So what was the difference for the judges who were on both of the cases? Why did they act inconsistently? The only conclusion one can reach is that for these two, irrational processes were at stake. Maybe they liked the plaintiff in one case but not the other, maybe they had a disregard for one or more of the attorneys, maybe the services the agency was performing in one case were more appealing that than the services performed by the other? One could only guess.

In any case it looks as though at least two judges on the Court of Appeals make decisions based upon irrational factors at least as far as these two cases may be concerned. That is, they decide cases arbitrarily and not according to the law and the facts. More troublesome is that these judges seem to allow the court to be used for purposes of the dispensation of power based upon the arbitrary whims of the judges.

The court affords the protection of the law to some but not to others. Its actions are arbitrary. They are political. They constitute the use of power for some and the denial of the power to others in cases which are essentially the same.

A fallacy of logic is a method of reasoning that does not have a sound basis in reason.

One fallacy we have quick recognition of is ad hominem argument  or  argumentum ad hominem (Latin: “argument to the man”, “argument against the man”).  Using this fallacy, one replies to an argument or factual claim by saying something about the lack of goodness of the person making the argument or claim, instead of responding to the substance of the argument or producing evidence against the claim.  This approach is not uncommon in our courts of law and courts of equity.  Sad to say.

Another fallacy of logic is the inverse of argumentum ad hominem.  It is argumentum ad verecundiam.  (Latin: “argument to respect”).  Using this fallacy, the person making the argument bases the truth value of an assertion on the authority, knowledge or position of the person asserting it.

This approach is more common in our courts of law and equity. 

For example, every day in a court here or there one can witness judicial decision making which leans to the side of a case which is presented by a person who is in a firm which has the respect of the local judiciary.  This is one of the reasons why many lawyers find it essential for them to do their work from the law firm which has a the appearance “good reputation” in the local community.  This is also why clients will seek out the lawyer who is doing his work from a law firm which has the appearance of a good reputation.

Justice Scalia is critical of the New York Times regarding the Riegel v. Medtronics.  He says the paper does not pay attention to the essence of the case and instead reports it as expression of political power. 

An interesting criticism but the issue is really this — is the Court a political body or something else? We like to think it is something else.  But is it? What sort of decisions does it render?  What sort of expression does the Court engage in?  What was Roe v. Wade?  Was that case a decision about the law, or was that an expression of opinion?  What was the Gore Non-Election Decision?  Was it a decision based upon the law or was it political expression?

And, what about the cases the court accepts?  What about the cases the court rejects?  Are these decisions based upon law or something else?

Most people say the courts and judges are deserving of respect.  But when you seek to know more, the “respect” is due to the notion of the judge’s power, the judge’s power to allocate power, to act mostly unrestrained on the bases of his or her own predilections or emotions.  They do not believe judges act on the rule of law.  For most law is a gamble.  The respect they accord the court and its judges is due mostly to the inherent propensity all of us have of fear of that which has power over us, or we perceive as having power over us.  We cannot not countenance that those in power may well be opposed to us or some of us.

Justice Scalia’s comments are interesting.  However, however, the problem is a bit more complicated than he makes out.  Maybe the courts and the judges of the courts have to reach for a higher standard.  That is, maybe the courts and the judges should truly start to fashion all decisions based upon reason and law, including decisions to accept or reject petitions for writs of certioari.

We like to think the Supreme Court is the highest point of the wisdom of our country.  From the minds of nine people dressed in robes and distant from the great swarm of people who employ them, come the great truths upon which we govern ourselves.  We would think The Nine are on top of all of the important issues of our society, our government.  We would like to think The Nine are so much more than all of rest of us and greater than each of the other institutions of government.  In fact, they probably are.  But one should not think they are really on top of it all. 

There are hundreds of thousands of legal disputes which wind their way through the judicial system in a year.  The Nine are petitioned to take cases in about 11,000 instances.  Of this vast array of cases, The Nine take a paltry few.  And, how is it that they cull the cases that come to them.  This is done primarily by law clerks hired by the judges.  These clerks are usually very bright, ambitious, recent graduates of a top law school.  They about 26 years of age and have really done nothing during their 26 years except be students.  They also have overwhelmingly high opinions of themselves.  Another fact which must be acknowledged is that they have a tendency on the whole to be conformists.

One does not mean to complain.  But one does wonder whether we have really developed the best system. 

The other day, I listened to one of our Supreme Court justices, Anton Scalia, talk about a book –Making Your Case: The Art of Persuading Judges – he had written with another, a writer employed to write by one of the larger law book publishers, a “household name” in the legal profession. There was not much to listen too.

The judge was using the heights of his position to team up with a name one sees on significant publications of the law book publisher to tell lawyers how to make the lawyer’s case to judges. And, to make your case, how to dress, how to write a brief, how to make oral argument, how to, how to, etc.

Lawyers with some spare change have many such books on their bookshelves (if they really have bookshelves outside of the bookshelves of their law firms). Such books not about the law, the history of law, the purposes of law, the major concerns of law over time. No, such books are books about how to “trick the law.”

What I mean by “trick the law” is how to control the system of law and judges so that it works in one’s favor, so that it is possible for a lawyer to win. Tricking the law is about how a lawyer would go about getting his or her success in the law. Tricking the law books are all about how to conform so one can win – gain material success and favorable public opinion in the profession of the law.

Justice Scalia, a man lionized by many within and without the profession of the law, went on to say lawyers are merely “facilitators”, that they do not contribute anything real or substantial to the process of life. They just help things along. I think I remember that as the essence of what the justice said, but I am also sure he would say I am simplifying it too much though.

I had never really thought about lawyers in this way before — as facilitators. Or, if I had, I denied the truth of the characterization. The lawyer of my imagination has always been a person who, acting with courage and conviction and intelligence as best God gave it to him, would do more than just facilitate, he would lead and he would try to help the law evolve. I have naively assumed that a good lawyer would use his effort to help the filial sense of being evolve into finer thing.

I have had lofty thoughts about the law and lawyers and still do. But the justice’s remarks lead me to think I am out of step with the times.

Maybe a lawyer is just that, a facilitator. That a lawyer should be just that, and should aspire to be only that – a facilitator helping himself and his client trick the law for success and profit.

Does not seem much to aspire to.

Maybe we will be saved from this pecuniary view of the legal profession and the judiciary by a book, after the fashion of Babbitt by Sinclair Lewis. A Babbitt book about a lawyer rather than a realtor (trademark).

In Richard Sobol’s book Bending the Law: The Story of the Dalkon Shield Bankruptcy , a rather momentous example of earwigging of a federal district court judge is described.

In the Preface to the book, Mr. Sobol describes how A. H. Robins Company, the manufacturer of the Dalkon Shield, sought to consolidate the Dalkon Shield Litigation in the federal court in Richmond, Virginia before District Judge Robert R. Merhige, Jr., a local law school graduate of the University of Richmond, and an “enthusiastic booster of both the city and the university.”

The efforts to consolidate had been opposed. Robins “finally achieved the consolidation of the Dalkon Shield litigation in Richmond before Judge Merhige by filing for bankruptcy.” Mr. Sobol reported Judge Merhige “is a neighbor of E. Claiborne Robins, Sr., who is a celebrated figure in Richmond. Three weeks before the bankruptcy filing, Merhige met in his home with Robins, Sr., and E. Claiborne Robins, Jr., the president of A.H. Robins, to discuss the company’s plans with respect to bankruptcy.”

The rest is history. The liabilities of the company and its officers, directors, attorneys and insurer were transferred “to a trust with limited funding, and to allow the Robin’s shareholders to be paid the value of the company in excess of the fund before it could be determined whether the individual entitlements of the women injured by the Dalkon Shield exceeded the amount of the fund, or indeed, the total value of the company.”

Thus, it might be contended there there are differing standards regarding earwigging and its progeny from case to case in federal court.

One would have had a different view, maybe a more enlightened view, of the Scruggs sentencings had Judge Biggers made some mention of the A. H. Robins - Merhige earwigging. I wonder if he would have found a difference between it and the initial earwigging of Judge Lackey by Timothy Balducci to get the Jones case sent to arbitration?