Wednesday, October 3, 2012


October 3, 2012

The law, to grab a line from the mouth of Charles Dickens’ fat and flinty Mr Bumble character, is an ass. 
A swaggering, snickering, braying ass, pompously bedecked in official robes or pontificating from bench and bar, feeding exclusively on a steady diet of dollar bills. Some from taxes, some from businesses and individuals, but all from us the people.
That’s the legal system in this country. This ass is a business, a self-serving industry that generates well-paid employment for its members at the expense of the general public. Jobs for the boys. It’s the American way.
The more lawsuits and the longer they can be stretched out the more work for  lawyers and judges. It’s a machine that feeds itself and it’s all legal because it’s been set up and maintained by the very individuals who benefit from it. Doesn’t matter who wins or loses, plaintiff or defendant: the legal folks always do.
As justice goes, this is truly unjust.
Some judges should never be on the bench. We’ll deal with civil law here. There are justices who can’t understand the testimony, who roll their eyes like those TV actor-judges, yawn conspicuously, become impatient with what they’re hearing but not really hearing, and then rule anyway. Others who always split the difference instead of making a decision.          
I’ve encountered one of those here in Walton County and I’m still bemused by the experience. The judge refused to listen to authorities from the University of Georgia. He then embraced the “expert testimony” of a small-time landscaper over that of Georgia’s second-to-top arborist, an eminently qualified forestry consultant with letters to his name... And whose expert evidence seemingly went over the judge’s head.
And then His Horror just picked a figure somewhere between the two and ruled accordingly. The phrase he used was that one party needed to “step out of his Cadillac and the other get out of his Ford.” Whoa! Wasn’t that Chuck Berry’s song about Maybelline? And anyway we drove Chevvies.
Here’s what I say to that gentleman: You’re a judge. Your job is to judge so do your job, Your Honor... judge! Any fool can find middle ground. Any ass.
That case cost far more in legal fees alone than the compensatory pittance he awarded, and that’s another crazy element in our justice system. You lose when you win.
You prove your case and you’re made whole? Not at all – instead you end up owing. What kind of process can call this a “victory”, as my attorney did.
There’s more that’s seriously wrong with our courts. Civil cases are often won by the party with the bigger war chest . How democratic is that? How just?      
Also, you pay for your own witnesses’ time to, from and in court. If you won’t or can’t, then tough. You lose.
Our legal system is based on English Common Law. But it’s been severely – shall we say – “fine-tuned” from the original. In a civil case adhering to its true protocol the loser must cover his costs plus the court fees and is ordered to pay the legal costs of the winning party as well.
The reasoning behind this is that a prevailing party proven to be in the right should never have been forced into the expense of reaffirming that fact. Simple. Shrewd. Sagacious.
Another beauty of such a system is that a giant corporation with an unworthy case cannot win merely by outspending some poor guy. Just running someone out of money won’t do the trick because the longer the case goes on the more expensive it becomes for the loser. And a plaintiff who drops his suit any time before a final ruling is still liable for everyone’s costs to that point.
It also prevents frivolous lawsuits. Two such were filed by a herd of Texas cattlemen against Oprah Winfrey for saying she wouldn’t eat another hamburger. Freedom of speech won out, of course, and the beefies lost out both times; yet it still cost Oprah big time to defend. The lawyers made the millions. 
English Common Law prevents Hail Mary attempts at milking a wealthier opponent, as practiced by law firms who take cases on contingency, anticipating a fat share in the spoils if they succeed. And by those specializing in class action suits who reap the bulk of the award if they win.
While it didn’t help Oprah, George W. Bush, still a governor in 1995, enacted state measures that curtailed shopping around for a favorable judge and jury, and gave justices greater power to punish unreasonable litigants. A good start. But why only in Texas? And why finesse an English legal system that already worked so well in the first place?
What, did they mix in boneheaded bits of Bonaparte’s Napoleonic Law from Louisiana, maybe some – God forbid! – Sharia from the Muslim world?  An eye for an arm, a tooth for a fairy? No. They simply saw dollars.
One contorted argument in support of the US system is that everyone has access to legal muscle. Sure – everyone with money, but you walk in the lawyer’s office and ca-ching! immediately the cash register begins clanking. No jingle? No justice. The legal industry is bent on keeping it that way, so no wonder the USA is a litigious society.
The original Common Law makes so much sense. Except to an ass.


© 2012 Fred Wehner is a journalist formerly with the Daily Mail in London, who then founded and ran the New York News Agency before settling in Monroe 21 years ago.