Article of the month

What’s Wrong with the Legal System that Some Commentators Describe as the Best in the Civilized World?

When one Colorado attorney suggested that the “United States has the very worst . . . justice system in the civilized world” (click here), Mark Fogg (Kennedy, Childs & Fogg) and Charles Garcia (Denver Office of the Colorado State Public Defender) retorted that “Nothing could be more wrong” (click here).

If I was given the chance to summarize what it is that bothers me most about our legal system, it's that someone like Suzanne Shell can't go about her daily life, which may include operating a Web site or engaging in the “dangerous” activity of expressing [purportedly First-Amendment-protected] unpopular opinions, without fear of being sued, because of her unique knowledge that all the statutes and case law that apply to such activities might have no application or meaning to her if she's pro se or penniless when and if she gets sued.

I find it disquieting that I spend so much time learning the law in order to guide my own actions (and, one day, as a lawyer, to guide the actions of my clients), only to know that this information may have been learned in vain, because I may or may not be permitted to rely on it (or, rather, it may or may not be permitted to apply to me or my client[s]) at some future time. The reason this is so is not because of judges who make the law ("judicial activism") but, rather, who believe that they are a surrogate for the law and thusly decide a case according to his or her whims, guided by motives that are unknown to us.

Lawless judicial conduct -- the administration, in disregard of the law, of a personal brand of justice in which the judge becomes a law unto himself -- is as threatening to the concept of government under law as is the loss of judicial independence.

In re Ross, 428 A.2d 858, 861 (Me. 1981).

As a recent example that comes to mind, my erstwhile attorney, Karen Renne, Ph.D., explained that she was getting out of the business because she had become so disgusted with judges in domestic relations cases, who —very early in the proceedings— made up their mind about who would prevail and who would not. It mattered not what facts or evidence was thereafter presented or what the law prescribed for those facts. All that mattered was what the judge, in his or her caprice, wanted the outcome to be. Similarly, Denver lawyer Andy Oh-Willeke laments that, “Any time you walk into a court room the outcome is always in doubt, no matter how strong your case.” (See http://washparkprophet.blogspot.com/2007/06/twelve-years-in-law.html).

As noted above, it's very difficult to illustrate or expose this misconduct either at a granular (case-by-case) or generalized/anecdotal scale: I find it analogous to a Black Hole. We can't see, measure, touch or weigh the Black Hole; yet, we know it is there because of the effect that it has on its surroundings.

I can only conjecture that this culture exists because no one, including the appeals courts, admonishes or disciplines judges for deliberately misstating the facts or from deviating from the rule of law. This, in turn, is attributable —only in part— to the difficulty of perceiving and/or establishing that such mischief was at work (as opposed to a sincere (albeit erroneous) interpretation of the law or the norm for a common-law or equitable outcome). After all, as the Colorado Supreme Court reminded us, "'Prejudice' is not easily defined. Since it is a mental condition or status ---a certain 'bent of mind'--- it cannot be demonstrated, ordinarily, by direct proof." 629 P.2d 1055, 1057 (Colo. 1981).

In a legal context, the Black Hole analogy translates into a judge preventing you from speaking or presenting evidence; preventing you from having prior notice of the grounds upon which your case will be decided against you; deliberately misstating the facts of your case to achieve a particular outcome; fabricating certain facts of your case (not alleged in the pleadings or elsewhere in the record) to achieve a particular outcome; advocating for your opponents by contriving grounds that were their responsibility to contrive (that they didn't); misapplying the law (usually case precedents) to the facts of your case to achieve a particular outcome; bending the rules to favor your opponents to achieve a particular outcome, while holding you to a hyper-technical standard; charging you with attorney fees for the filing of any claim or defense; mocking, defaming and denigrating litigants, who of course are helpless to respond to defamatory published opinions or court orders, and who will experience those remarks used against them for the rest of their lives; etc.

Incident to the illusory and unpredictable outcome of any dealing with our courts is the farce that is our legal ethics system. This primarily includes our regulatory agencies, such as the Office of Attorney Regulation Counsel, the Commission on Judicial Discipline and the Board of Psychologists Examiners, to name a few, as well as the self-governing federal judicial misconduct policy and procedure. These systems exist to provide the illusion of protecting the public from ethics violations when, in reality, they exist to protect the profession they are chartered to regulate. (Click on any of the above links to discover the wealth of information supporting this conclusory assertion).

The results, both predictable and intended, are twofold: the right of meaningful access to court is deprived of most individuals and, with it, the opportunity for legal redress of injury and for entrée to a prime mechanism by which to effect alteration in the law itself. Second, the experience exacts a toll, financially and in personal reputation, and therefore emotionally, so that the litigant’s life is permanently and profoundly altered.

This is the injustice that I want to expose and change.