Diviacchi Law Office
111 Beach Street, #1A, Boston, MA 02111-2532 Phone: (617) 542-3175, Fax: (617) 542-3110
SELECTED ESSAYS
Laws as Magic by Anonymous; submitted 5/98
Separation of Powers by Attorney Guiseppe Madre; submitted 7/98
For Whom the Bell Tolls by Attorney Est Nulla Justitia; submitted 9/99
The Ivory Tower of Appellate Judges by Attorney Guiseppe Madre; submitted 5/01
Law and Intolerance by Attorney Guiseppe Madre submitted 5/02
The Religious Left: Law as the New State Religion submitted by Anonymous 6/04
Responsibility and The Law by Attorney Joseph Mae 6/06
Sacrificing for Social Order by Anonymous 7/06
Personal Moral Code of Professional Conduct submitted by Attorney Giovanni 2/07
Law Day by Attorney Valeriano Diviacchi 3/08
Laws are to the legal system what incantations are to magicians, they are a camouflage and a facade for the actual causes of an outcome. This is the secret that the powers-that-be in our legal system hide just as magicians hide the secrets of their tricks in order to keep and maintain their power. Unlike magic, however, this secret will and is destroying the integrity of the legal system. This is manifested by the fact that in order to exercise my right of Free Speech to write this essay that I must do so anonymously to avoid retribution from the protectors of Free Speech in the court system in which I practice.
Despite my varied experience in life going from a working class background to graduating from Harvard Law thanks to the G.I. Bill, I left law school with what I now know to be a naive belief that law involved a normative set of principles from which we logically deduce solutions to legal problems. Since graduating, I have worked as a trial attorney. It is here in the trenches of the legal system that allegedly different concepts of justice and interpretations of the law are tested, fought for and against, and victory or defeat suffered all within a framework of procedural rules making the legal battlefield equal for all who come before it and where intelligence, knowledge, and reason are the weapons.
What a bunch of nonsense. The parties in a case rarely care about the law or what is just. A party wants a certain result and that result must be just because they want it. The legal system responds with the sham that the parties' concept of justice is worked out and meshed into social ideals in our adversarial legal structure. This bogus response works for the rich parties and their lawyers. They go about generating huge amounts of paper, leaving no stone unturned, regardless of how relevant or material it is to a case, without worry of sanctions or retribution since there is no such thing as frivolous when you have the money to make anything seem possible and your desires can never be a waste of court resources.
However, for the politically powerless for whom this third branch of government is suppose to be a refuge, the last thing judges want an attorney to do for these clients is to adversarially argue anything. This makes them work and challenges their mystique of power. What really happens is that the judge quickly decides based upon their own bias, prejudices, and ethics how the case must end up and angles everything in that direction with the "law" as the veneer.
With any real world experience at all in representing uncelebrated cases and with any sense of honesty, a novice attorney quickly learns that what a lawyer must do is pretend to be an adversary. You must argue things up to a certain politically acceptable point so that the client thinks you care about the case without really challenging the latest pre-determined disposition, bias, and prejudices of the judge. This is just as true if not more so of so-called "liberal" judges because for them the law is equivalent to a religion and any attack upon it or the latest legal fad must immediately and forcefully require excommunication and suppression. The extremes that judges go to protect and hide this contradiction is inconceivable to the observer not familiar with the court system. Judges outright lie in decisions; appellate courts add further lies in order to affirm and not embarrass such a deceitful judge; judges overturn jury verdicts after weeks of trial simply because they did not like the result; appellate judges none of whom ever tried or could take to trial a case in their politically connected lives ignore such blatant disrespect for a jury by simply affirming without decision the reversal because they could not fabricate any justification for it; attorneys lose meritorious cases simply because they did not want to anger a judge by being adversarial; and judges dismiss meritorious cases simply because they did not like an adversarial attorney.
However, who would listen to such stories? Our entire judicial branch and ninety percent of our executive and legislative branch "lawmakers" are lawyers for whom the secret is the keystone of their power. They have no interest nor incentive to reveal the secret nor to ameliorate its effects. Though in reality, we are as dependent on the legal system as a person in the Middle Ages was dependent upon the Church, we Americans have this illusionary concept of ourselves as being wholly independent individuals who only need to be left alone by the legal system to survive and prosper. This is an illusion that is not shared by the rich and powerful who keep teams of lawyers on retainer to assure they keep their wealth and power.
Though this illusion is quickly erased when unfortunate circumstances result in one being involved in the legal system, it is then too late. My worst fear in court and the one that ferments the biggest contempt for its daily workings is that there is no one more in danger of being treated unjustly then a truly innocent defendant or a truly injured victim. Such clients honestly expect that the system simply by letting it work will protect them, wherein in reality it is they and their attorney who must be the most on guard of all. As with all previous legal systems, ours would willingly and knowingly sacrifice any individual to save its power. The only difference is that instead of destroying the individual physically our system destroys the spirit, which is much worse. How long can a legal system hypocritically claiming to be based on democratic principles survive when it keeps its power purely on hidden authoritarian principles?
As hopefully every American schoolboy and schoolgirl knows by the time they finish the eighth grade, though the writers of the United States Constitution had respect for the value of the individual, they were also fully aware of the individual's capability for evil and tyranny and its weaknesses. Being fully aware both intellectually and from practical experience that power corrupts and absolute power corrupts absolutely, they created a government system embodying a separation of powers in three branches of government: the executive, legislative, and judicial. The emphasis was not on changing human nature or idealizing it into something that it is not, but in establishing procedures and safeguards that would not allow human nature's weaknesses to destroy it while allowing its strengths to work and foster better government. As we go into the 21st Century, this separation of powers is nominal only and a joke. Judges are essentially legislators in which the law is whatever a judge on any particular day with any particular case decides the law is. They are appointed because of their political beliefs to enforce those political beliefs upon society through the "magic" of laws with the only significant difference between them and the legislature and the executive is that they wear black robes to work and need life tenure to do their legislating because they do not have the courage to be accountable for their work. The judicial branch along with the executive and legislature branches of government are merely mouthpieces for whatever lobbying group or bureaucrat to whom they owe the most and are incapable of any independent political or philosophical thought. No one in academia, the wealthy, nor the government has any incentive to change this situation since their power derives from the status quo, and, unfortunately, they are the only ones with the power to change it. The system is at least 100 years behind the times. These are a few suggestions for "procedures and safeguards" that would bring the system up to date.
First, separation of powers should be brought back in modern day form: no one who is or has been a member of one of the branches of government is allowed to become a member of another branch of government. The main goal here is to prevent the ridiculous situation in which 90% of the executive, legislative, and judicial authority is held by lawyers. This situation exists because of a circular chain of causation derived from the modern day situation in which the law has become the arbitrator and mediator of all disputes in our society. People cannot solve problems among themselves without a law, the lawyers create resolutions by laws that they enforce, these cause more problems, creating a need for more laws, the cycle begins anew. Though the adverse effect on society of such a situation is often discussed, the adverse effect this situation has on the legal system is completely ignored. The legal system is supposed to be an independent branch of government with its own principles. Since its powers-that-be, the judges, are just political hacks for the politicians that appointed them, sharing the same desires and goal of maintaining their power, there is no independent branch and especially no independent thought. If in fact the judicial branch had to rely on its own principles and practical reality for survival against what may sometimes be adverse principles by non-lawyers and other independent sources of thought and power in another branch of government that it cannot rely upon to save its sorry butt, it would either have to become and stay up-to-date or be gone. Given the need to maintain power once one is given it, I suggest that it would stay up-to-date or, if not, its elimination and replacement by the competing powers would be more than warranted. At the same time, if the other branches of government had a judicial branch that was really independent of whatever the latest political fad that they needed it to enforce, they also may have to start thinking in terms of political ideals again and not in marketable fads.
Second, the adversarial system of litigation and trial work should be eliminated in all cases except felonies and civil actions against the government. To the extent the adversarial system developed in earlier centuries to resolve such problems as whether farmer A's cows trespassed into farmer B's garden still exists it adds nothing but complexity to an already complex society with its sole purpose being to allow the large firms to make allot of money in discovery. Its advantages exist only for the wealthy who can afford the expense that it entails. For the average party forced into the judicial system, the adversarial system exists in name only. As summarized in the previous essay submitted by another writer to this web page, see Laws as Magic above, it's advantages are not available to the powerless for whom it is suppose to be a refuge. Those attorneys that are really adversaries for the powerless risk their economic, physical, and mental well-being. Most attorneys, even the very affluent who build a reputation as good attorneys by proper marketing techniques and not by legal work, do not have the ability nor training to engage in adversarial techniques in our complex society and those that do are more often than not persecuted by the judges who are themselves completely incapable of courageous advocacy and by the self-marketed lawyers out of jealousy to the point where eventually their skill and ability is negated or turned into sour cynicism. Eliminate it! Make the judicial system be consistent with itself and have it solve problems efficiently and economically. At the same time, such a procedural change should work so that the judicial branch becomes self-sufficient for its operating funds and for enforcement of its judgments. No more excuse that the judicial branch must be cowards because it is dependent on the money and respect of others! In the cases of felonies and actions against the government, the final defense to tyranny, the adversarial system should be fine-tuned so that the best adversaries practice there and do so with pride and respect and not with apprehension as to what their courage would bring upon them.
Third, no branch of government should be allowed to be its own "ethicist." In the 1990's, ethics has become the first refuge of the scoundrel. Every politician or attorney no matter how dishonest or crooked they may be themselves accuses his adversary of unethical conduct whenever it is convenient to do so. Thus turning ethics, a noble philosophical study over two thousand years old dating to Plato's Republic and the very foundation of Western Civilization, to a joke. As anyone who has taken even a freshman introductory course into philosophical ethics knows, it requires skills and formal logical thought that are not easy nor intuitive. Both Congress and the legal profession have "ethics" committees that supposedly judge and govern the ethics of its members. These farce committees all have one thing in common: their members have no training, no education, nor any formal study in ethics. The committees therefore become purely another political tool by which the powers in control attack those not in control. In the case of state bars, the professional ethical committees are completely worthless except for ensuring that the desires of the large firms become the standards for the farcical "rules of professional conduct." Ethics committees should be run by independent, educated philosophers trained in formal ethical thought.
What chance is there for any of the above procedures to become active in the next hundred years: zero to none. The feudal system hung around 500 years after its usefulness had vanished as our own revolutionary war proves. Our present government is a power that will maintain itself at all cost regardless of how antiquated it has become. Regardless of a good attempt by our Founding Fathers, they still did not create a system that would keep pace with the times and not allow power to be the dominating motive for activity. Once the above reforms are initiated, they will probably be antiquated already and only become another source of inefficient power for some undeserving few. Which leads me to my fourth reform, reinstitute the Old Testament "jubilee" year. Every fifty years, all laws, government authority, and legal power is abrogated and made null and void unless reinstituted by the people. It is not worth voting anymore because there is nothing to vote upon that is meaningful: one politician is the same as the rest, policy will be decided by the most influential lobbying group and not by any vote and definitely not by my vote. At least, once every fifty years give me something substantive to vote upon.
It is sad to see how successful insurers and the other powers-that-be have been in brainwashing the American public into worrying about the reputed social costs of excessive and meritless litigation. One would think that even the slightest familiarity with American history starting with the Salem Witch trials going through the Haymarket trials onto the Los Angeles Police Officers trial and everything else in between would prove beyond doubt (not only a reasonable doubt) that the rich and other powers are more than able to take care of themselves and that we should be suspicious about any argument from them that there is some type of "social" threat in a procedure that sometimes hurts them. The nonsense that calls itself legal scholarship is worthless to counter these marketing ploys. Frankly, there is a Catch-22 situation that prevents any opposition because they cannot be countered unless one has had the misfortune of actually being a civil plaintiff or a criminal defendant, but in that case you have lost any credibility since everyone else - because of the propaganda - has no trust in you.
The funniest thing about the popular anti-litigation views is that it only applies to the other guy's litigation or defense and not of course to your own. I am constantly amazed by calls that I receive from conservative, potential clients living in a conservative, Simi Valley-like suburb who all of a sudden find themselves in need of a lawsuit to satisfy some injustice. They one day decide to argue a ticket with a cop and wind up arrested for disorderly conduct; they are completely indignant that their right of freedom of speech has been so violated. They lose their job after years of hard work because the boss is an idiot; they are sure that there is some right out there that has been violated. Their daughter goes to a hospital for a simple examination and almost winds up dead because the doctor is an idiot. They go into an intersection with their SUV that of course has the right-of-way when a Volvo driver busy admiring the safety features in his car runs into them because he or she also has the right of way. All these people expect that not only will they get millions for the injustice that has occurred but also that of course attorneys will be tripping over themselves to take their case on a contingency.
They are very quickly brought down to reality. Not only am I not interested in the case, but probably no one is since in this day and age before a conservative judge in their conservative, neo-nazi little suburban world they are lucky to get out of there without losing money let alone making any. If their case is not the basic personal injury case but involves some type of new idea or principle or even more likely involves an idea or principle to which his Honor the judge is not familiar, does not understand, or does not like, you are now in the world of "frivolous" lawsuit and "Rule 11" sanctions. I would like to see anyone busy complaining about contingent fees or excessive litigation take on a rich insurer for years while financing the case on a contingency and stay out of bankruptcy court.
The reality of the situation is that the reason we have contingent fees and the American system of fees in which each side bears their own costs is because after centuries of experience our early jurists realized that this was the only way to assure the middle class would have some judicial power (forget about the working class, they are without hope). Given that this is an imperfect world, of course this means that some nonsense lawsuits will get by. Still, for every frivolous lawsuit that gets by, there will be thousands of social injustices that have no legal remedy. Though frivolity will sometimes win and the insurer instead of making $100 million in profits may only make $99,990,000, this is a lesser evil than the alternative. Now that we as a society are going the other way and are trying to eliminate frivolity even at the price of losing more legal remedies, the middle class is also disappearing and losing its powers. Americans, please wake up and read history again!
IV. THE IVORY TOWER OF APPELLATE JUDGES
I have just read an appellate decision on a case that I handled in the trial level. As always, it is hard to recognize my case since the facts as stated by the appellate court have very little relation to what occurred. As any trial attorney knows, any correlation between the facts on appeal and the facts tried are only coincidental. Why is this? Why is it so hard for appellate judges, outside the heat of battle of the trial court level, to apply some rationality and honesty to the issues before them? Ninety percent of the cases brought to appeal by an attorney can be reversed or affirmed depending on what judgment calls the appellate judges make by emphasizing some facts and law while ignoring others. What is this judgment that is the decisive factor but a factor never explained or even mentioned in the appellate decision itself?
A large part of this has to do with the natural inability of human nature to see any view or to understand any thought other than their own. Very few people are naturally empathic. For those who are not, it requires extremely hard mental work, education, and mental discipline to become so. Even fewer engage in such a process. Trial attorneys even if they are not concerned with empathy as a virtue but only as a means to success must if they want to survive understand the opposing sides case or view in order to defeat it or to know that they may be defeated by it. The miserable work that negates nature and develops such an understanding requires years to succeed and that success usually occurs after a painful defeat.
The vast majority of appellate judges never had this ability nor to they ever have a need to develop it. A judge, whether appointed or elected, conservative or liberal, is primarily a politician and only secondary, if at all, an attorney. They accept illusion as practically more important than substance. They got their job by understanding who the powers-that-be are and making that power happy. They worked and work within the system and are part of the system. Any mind set that would cause them to see and appreciate a view contrary to their own or outside the system and really disturb it, not just nominally or ephemerally cause a politically correct ripple, but to really have a completely contrary view is beyond their nature or they would not have gotten the judgeship.
Furthermore, this natural inability is worsened by the fact that appellate judges exemplify ivory tower philosophers spitting out ideas that have no control by reality. Their personal ideas are pure and enforceable law. They are never critiqued nor could anyone do so since there is no basis for a critique. What they say is law and is by definition correct. The only way outside of it is by rational principles of reason, logic, and ethics. However, we have rejected all such argument to have the efficiency of allowing only legal arguments. Of course while we do this, we complain about having too many lawyers and litigation and such, but hey what the heck, hypocrisy is not a crime.
The most dominant factor in their judgment as to what facts or law to ignore and what to emphasize is the idea that the underlying decision on appeal must be affirmed as long as it does not contradict what they believe to be right or just. As part of their professional courtesy to fellow judges and as part of the desire to exhibit the system to be true and accurate regardless of how false and erroneous it really is, it is vitally important that judges be shown to make few mistakes. After this factor, there are probably an infinite number and variety of factors that affect this judgment: political and ideological views, the nationality or race of the parties or attorneys, the demeanor or style of the attorney or party, what the judge had for breakfast that day, what the judges law clerk had for breakfast that day, and so forth to name any possible view, prejudice, opinion, or bias that a human being may have.
What would be so wrong or hard in admitting this reality so that we can compensate for it? Would it not than be possible to bring the appellate system into the twentieth century (we would work on the 21st later) by such minor changes as actually having mandated basic educational requirements and qualifications for judges, competency tests, and even an independent examination board to review their performance? How about a real change such as admitting that what they are really doing is making ethical judgmental decisions and then force them to write their ethical views of the issues and parties in their decisions and to start studying, knowing, and applying ethical logic and reasoning!
We are inundated with laws intended to force tolerance and respect for diversity in our society, however, in terms of forcing such respect for actual, substantive diversity in new ideas for social or political change, they have not only completely failed but have had the opposite effect. Never in my life have I seen such desire by our American society and citizens to punish either economically or criminally any type of simply negligent or even just disagreeable behavior, as defined by what is acceptable behavior by the ruling economic class.
Our faith and belief in secular law as a provider of justice and a protector of the individual is not unique to American culture. We have inherited it and developed it from two lines of historical development: one starting from the Old Testament and another from the Roman Empire who absorbed it from Greek civilization. What is unique about our American faith in secular law are the particular procedural processes such as separation of powers, bills of rights, and constitutional government but not the actual substantive belief in secular law as a system of justice. Even a casual reading of ancient Greek and Roman writings show deep and moral concerns that the state through a system of laws and legal officials such as magistrates, senators, consuls, and others must create and enforce social justice. Though many of us see these ancient civilizations as hypocritical, unjust societies, they saw themselves as beacons of justice in a dark and unjust world and in many ways they were right.
However, there is a major difference between our modern faith in law and these ancient beliefs in law: the New Testaments Christian influence. By this influence, we see the individual, who is supposedly created in the image of God, as unique and significant independent of his significance or existence in a social construct. This influence establishes that secular law will always be an imperfect reflection of divine law and thus no matter how well intentioned or how many good consequences it may have at one point, it will eventually become just another source of power and corruption by which one individual or group of individuals unjustly controls another individual or group of individuals.
During the last 40 years there have been massive historical changes in social causes of injustice. The most obvious example of such is the elimination of legally enforced discrimination that occurred against women, racial, and ethnic minorities during most of our 200 years of history. This overall social concern for justice has permeated throughout our society and has been reflected in even such unpublicized changes as creating humane conditions for animals in slaughterhouses. As Thomas Aquinas said almost a thousand years ago, the humane treatment of animals in any point of society is necessary to establish a tolerant and peaceful society among humans because if humans get in the habit of mistreating animals it is much easier for them to mistreat each other. How much of these changes are due to the effects of laws and how much is due to economic changes that have given racial and ethnic minorities more economic power and have created economic surplus allowing for such concerns as animal rights is something that has gotten very little attention from academia. All of these past discriminatory laws that are now almost universally marked as evils were themselves seen as acts of social justice when they were first created.
However, from the practical standpoint, as one who deals on a daily basis with the enforcement, compliance, and effects of the laws that were enacted during the past few decades to ensure social justice, I have no doubt that these laws are already starting to be and will eventually be as great a source of social injustice as the laws they replaced. We are now in the situation where the wealthy and powerful at least in principle search to create diversity in their organizations. This occurs from a combination of factors: legally they are forced to do so to avoid discrimination claims; it is the current fad that diversity is good. As the philosopher Willard Van Orman Quine has pointed out, the world is a social fabric with each thread interlinked with every other thread such that a change to one weakens, strengthens, or somehow changes another. The law enforces the social fads and the social fads reinforce the law.
In practice, what this desire for diversity means is that we will accept anyone regardless of their color, ethnic background, sex, national origin, or, in Massachusetts at least, the fad is even at the point of putting "sexual orientation" in this list (the morality of such a life choice of course cannot be discussed or you are branded a moron and bigot without further discussion), as long as the person thinks and acts the way they're supposed to think and act. Instead of large, powerful law firms only hiring white Anglo Saxon Protestants as they did in the past in order to maintain a safe and secure social environment with set ideas avoiding conflict, they are willing to accept anyone as long as they all think and act the same in whatever the current acceptable manner is. Since this is the method of operation of the rich and powerful, of course this method of operation is going to flow down to everyone else in society to even the smallest and weakest organization as long as they consider themselves part of the social norm. This has some very interesting results. Unlike 50 years ago, you can walk into a large, powerful and wealthy big law firm and see more than just white Anglo Saxon males in the reins of power: there will be Jews, Blacks, women, and all sorts of national origins. Many of these will be doing acceptable pro bono activity. However, I submit based on my experience, that there will be no more diversity of opinions or belief in this environment than there was 50 years ago. In many ways, there is even less. One good thing that could be said about the old establishment is that they were secure enough in their positions to take risks; many of the social reformers that made the changes of the past 50 years possible were members or children of the governing elite who were educated enough to see that changes were necessary to keep society going and then used their influence and power to work for these changes. The members of this new "diverse" governing elite do not have such security. They are so uncertain in their social status and power that security and safety are the dominant thoughts of their method of governing and of their very existence.
I do not know whether such change and the present conditions should be applauded or condemned. Unlike many, I do not have a knee-jerk reaction that any forced social acclimation is bad nor a reflexive delusion that cultural diversity is always and by definition good. Most of the social injustices and evils of this world are caused by a diversity of beliefs and ideas. Japanese culture has for centuries been very homogeneous resulting in a very peaceful environment at least among themselves if not in their contact with others. I do not believe that it should be automatically condemned that a homogeneous world in which cultural, religious, and personal beliefs are similar with little diversity is an automatic evil. It may be true that such a world would stagnate and eventually, as many such societies before have done, die before it can go out and conquer the Universe, but it is still an option since even a vibrant, diverse society will eventually, though much later, have the same end.
However, what I believe to be important is that we make the choice of a diverse or a homogeneous society based upon the reality: that whenever any type of social ideal, fad, or concept of justice or political correctness is reflected in law or legal norms, regardless of how well intentioned they are at the beginning, they will eventually become just another source of tyranny.
VI. THE RELIGIOUS LEFT: LAW AS THE NEW STATE RELIGION
In reading the Goodridge decision legalizing same-sex marriages, I finally realized of what this decision and so many other politically correct decisions going all the way back to Roe v. Wade remind me - that of a preacher's sermon in a church. There is no doubt that the law is becoming, if it has not become already, the new state religion. In the same way that the previous dominant Western religions destroyed Roman Law, now, the descendent of Roman Law through permutation by Christian ideals is getting its revenge by destroying religion.
Starting in childhood and going into my early adult years, I studied different religions and the dogma and institutions they fostered, listened to their sermons, and read their beliefs. There is one element clear in all religions, that is, the essential meaninglessness of words. Any word pretty much can mean whatever the preacher, prophet, or whatever wants it to mean to a receptive audience. This includes also the very basic, simple words such as "brother", "sister", "father" or whatever. Words are used to achieve a certain goal without any attempt nor need to learn the history, initial meaning, or intentions of the use of the words and without any attempt to study or understand the ideas and background that led to the creation of the words; they are essentially used for whatever purpose the religious leader using them has in mind. The same words can be used alternatively to support peace or war, social order or disorder, logic or illogic, or whatever. Much of this was due to the fact that the basic purpose of religion is in fact an irrational goal - giving meaning to an irrational world - and to the fact that the front-line preachers of any religion are usually not educated enough nor competent enough to deal with the study of the history, logic, ethics, and rationale behind a given word=s use.
Supposedly, the law is to be different. The "common law" or even the "civil law" tradition is supposed to be based on some type of logical or rational relationship to the past or at least the awareness of such a restriction and then an honest attempt to adhere to it.
If that were ever true, it is clearly not true any longer. As religion for many reasons is losing its meaning to individuals and failing in providing a structured social goal, to many the law is now providing their meaning in life: it is giving them hope, it is giving them remedies for perceived injustices, and it is providing a means for an acceptable social order in which every one has certain "rights." In the same way that the initial development of Western religion was seen as an alternative to the despairing power of the Roman government and empire, it is now that a direct descendant of Roman Law, Western Common Law, is being seen as a alternative and remedy for the apparent despairing and failing power of Western religion to provide hope and social order to the modern world.
Part of the process of doing this is to take words such as "due process", "equal protection", and "right" and through the use of preachers known as judges to turn them into meaningful tools for the politically powerful to create a society in their own image. As with the sermons, this is usually done by individuals who have no training, competence, or caring about the cultural, social, or historical development and the intent of these words. The four judges who joined in legalizing same sex marriages in the Goodridge case - Marshall, Cowin, Greaney, and Ireland - are probably the least competent judges at the appellate level and probably make the top ten list of incompetent judges for the whole court system. All of them were incompetent attorneys whose only success was to become well enough politically connected hacks to be appointed to the ultimate hack job, that of being a judge. None of them has had an original thought in their entire politically correct careers and yet have reached the point of taking their own personal ethics, without ever devoting a minute of their life to a study of the concept of ethics, and making it dogma for an entire society. They have done this in the same way that the hierarchy of churches or religions issued proclamations based on "infallible" revelations.
Actually they have done it in a more dishonest and incompetent way. Organized Churches actually make dogmatic changes only after centuries of study and argument by learned people that is available and open to the public - many times the thoughts behind these changes are truly difficult, subtle, and thoughtful. Case law is make by hacks with no qualifications other than they pleased some politician somewhere enough to get a hack job with the real reason behind the decision hidden in their chambers or by their worshipping law clerks to avoid the disrespect for the decision that would come with honesty.
What is someone like me who works in the trenches of the legal system to do? (- a system that supposedly protects free speech but which I must criticize anonymously in order to protect my clients from being forever barred from ever again winning a case?) Should I keep the faith and pretend that there really is such a thing as "law" distinct from religion. That is what so many dissenters to these politically correct cases seem to do - stating I "respectfully dissent" to the decision no matter how dishonest it is. What a bunch of cowards. No more. I am no longer keeping up the faith or the facade. The law is what a judge on any particular day in any particular mood says the law is. From now on, I am passing this empirical truth on to my clients and the system is on its own in trying to survive, it will get no help from me.
VII. RESPONSIBILITY AND THE LAW
There is occurring both a proselytizing about the legal system being a means of holding people responsible for their actions while also complaining that there is too much “litigation.” As any honest, experienced trial attorney knows, both expressions are inaccurate. Normally, the only people held responsible for their actions are those too poor or too outcast to get out of being held responsible for their actions. The law is primarily a means for maintaining social order and stability in the economic conflict between the rich and the poor. One means by which it achieves this goal is by the social opiate of occasionally allowing income redistribution from the rich to the poor through lawsuits that are able to beat the system. Social hypocrites should realize this and stop complaining about a system that surreptitiously works to maintain their power and a class based social order.
One noticeable difference between the 9/11 attack on the United States and the Pearl Harbor attack is that despite the fact that the American casualties were about the same that absolutely no government agent or employee was held accountable in any way for the 9/11 surprise attack. After Pearl Harbor numerous government entities and employees were demoted or lost their jobs, including high-ranking officers in the Armed Forces. However, several years after the 9/11 attack, no one in any government agency has in any way suffered any reprimand or loss as a result of what was clearly a failure by government authorities to protect their citizenship. The same is true for the aftermath of the debacle in New Orleans. (I do not consider voluntarily resigning your government salaried job to then make tenfold profits writing a book or working in the private sector while keeping the pension benefits as being held “accountable”.)
Such lack of accountability exists throughout the state and federal government system. One would be hard-pressed to find an instance of any government employee of any rank who has lost their job because of incompetence in the last 40 years. Here in Boston the Big Dig Highway Project has gone from an estimated cost of $2 to $4 billion to over $14 to $16 billion with the result consisting of what are supposed to be waterproof tunnels leaking and corroding within weeks not decades of their opening. Yet, not only has no one lost their job or been reprimanded, but the Massachusetts Turnpike Authority and its officials have been awarded with more power and more money to correct the problem. The government principals who made the errors in the first place simply left their jobs with large severance packages.
This lack of accountability is occurring and becoming standard procedure despite the supposed fact that we are an “overly litigious” society that excessively tries to hold everyone accountable through “the law.” Worthless legal academics and non-trial attorneys are either complaining about too much litigation or saying “meritorious” litigation makes people accountable for their actions. Trial attorneys know both to be nonsense. Why is this occurring?
Anytime trial results begin to affect the power of the powers-that-be, there is an immediate correction that negates that effect. For example, the area of police misconduct civil rights law is worthless for anything except headlines every four or five years to give liberals and conservatives something about which to argue (the same is true for most civil rights law). In reality, incompetent police work, false arrests, excessive force, and outright batteries by police on civilians is a daily occurrence in even small cities and liberal states such as Massachusetts for which it is impossible to hold police accountable. There are usually only two kinds of witnesses to these events: the police and the civilian. The police stick together admitting nothing and lie with professional skill. Before a judge or jury, credibility will always go to the professional perjurer and no trial attorney would handle such a case since it is unwinnable.
If there is some type of hook that would allow for trial, there are then the very difficult legal defenses to overcome: good faith immunity and supervisory/municipal liability. Unlike every other person who has violated the civil or criminal law, the Supreme Court in its wisdom has given police the defense of “good faith immunity.” This means that even if you can prove factually that the police have violated constitutional law, if they in “good faith” believed they are doing the right thing, then they are not liable. This is equivalent to a defendant accused of statutory rape being able to legally defend the charge by saying that he honestly and in good faith believed that the minor was an adult. Furthermore, unlike every other employer in the United States who must face vicarious liability for the wrongful acts of its employees committed in the course of their employment — meaning that if your employee violates the law during the course of carrying out the duties of their employment, the employer as the principal is liable for this agent’s actions — the Supreme Court in its wisdom has decided that government employers do not have to face this liability faced by all other employers in the world. If an individual police officer violates constitutional law, its employer government is only liable if the plaintiff can somehow also prove that there was a policy or procedure established by the government to allow such unconstitutional acts, something that is further defined so strictly that it is almost impossible to establish or so expensive to establish that only the richest plaintiffs can even attempt to do so.
These factual and legal obstacles mean that the daily incompetent action of police officers in which they spend an enormous amount of taxpayer money and their time acting as bullies and punishing civilians for not treating them with “respect” instead of rationally investigating and dealing with crime and criminals goes completely unpunished without any type of accountability. Eventually every five years or so, the police get so confident in their daily abuse of power, that they wind up shooting someone for no reason or star in a videotape beating of a civilian resulting in headlines and multimillion dollar verdicts. Of course these verdicts are not paid by the individual police officers, usually no supervisor nor anyone in authority loses their job or loses a penny because of these cases, but the taxpayers wind up paying money to resolve the case and make it a go away so that the police can go back to their usual daily routine.
Personal injury cases are also another area in which there is no responsibility or accountability involved. Despite personal injury attorneys’ constant marketing that they are concerned about victims, they really are only concerned for victims who have a case against someone with insurance or with a deep pocket. Even in such cases, the defendant who actually committed the wrong is not being held responsible in any way but simply his insurance company pays money; it suffers no loss since it always recovers whatever money that it pays from its insurance premiums and thus its enormous profits continue. The beautiful deception of personal injury law is that it does its job of maintaining social order by occasionally transferring money from the rich and powerful such as insurance companies to the claimants of lower income classes. Thus, it also serves as an opiate for the masses keeping them from revolting against the large economic disparity that exists.
For every big, MacDonald’s type verdict there are a 1000 meritorious cases that have no remedy and this fact goes unnoticed by the powers-that-be that cluelessly keep complaining about excessive litigation. The best control on frivolous litigation is the contingency fee agreement. No attorney in his right mind is going to take on a so-called “frivolous case” against a large and rich government or corporate entity or insurance company on a contingent fee requiring that he finance the case for years and incur enough costs to go bankrupt. The only cases that are taken on a contingency fee are cases that have merit, and even these meritorious cases, more often than not, run up against institutional barriers and prejudice that result in their being lost or in achieving far less than what should have occurred. For every even remotely frivolous case that makes it to through the court system, there are a hundred meritorious cases that cannot be accepted and litigated because they are politically incorrect or attorneys cannot risk the financial burden required to litigate the case when it is compared to the possible financial result.
Even though there is numerically less litigation now than there was even in the depression era pre-W.W.II period, most of this litigation that never makes it to trial and is only a small percentage increase or decrease when compared to the increase in the complexity of our society. Most of any increase in certain types of litigation occurred as a result of the 1960s in which social unrest required that the legal system give more than illusionary rights to the powerless in order to maintain social order. However, as these rights are given to the powerless to act as an opiate to maintain social order, at the same time the possible permanent effect of these rights on the powers of the powers-that-be decreases. In the small amount of cases in which someone does get a large award against a power-that-be, essentially all that happens is that some income is taken from the wealthy and redistributed down to the poor to further act as an opiate to keep the economically powerless quiet and content.
The legal system establishes no responsibility for anyone and makes such lack of responsibility a standard social norm. This may be a good thing in this world that may be too complex and convoluted to hold anyone meaningfully responsible for anything anyway — if such were admitted to be the case and discussed. However, this reality is not admitted but instead it is hidden behind a false facade of responsibility and the gap between theory and practice continues to undermine the viability of the legal system.
VIII. SACRIFICING FOR SOCIAL ORDER
A previous writer commented on the fact that the law and in particular civil rights law is worthless for making government officials responsible for their incompetence. However, I submit that such may not be a bad thing but may in fact be necessary to control government power through the only way that this world allows for such control: by sacrificing some of the powerless to this thirst for power.
As any experienced trial attorney knows, there is very little difference between most police officers and the criminals that they arrest. They are essentially the same type of person: however, at some point in their life, the person who becomes a police officer decided that it was easier and safer to be in the service of the government with a guaranteed pension at the end of 20 years of bullying people. The best way by which the modern concept of uniformed and military- type police departments solves crime is by taking potential criminals and giving them a salaried government job and a pension to look forward to if they restrict their criminal activity to the type approved by the government — in short by making potential criminals police officers, crime is significantly reduced.
The unfortunate reality is that the most efficient and idealistic type of police force is the type that patrolled Germany and Italy in the mid-Twentieth Century making it possible for Germany to take on the world for several years of war and for Italy for a short amount of time to actually run in an organized and efficient manner. Is the price for maintaining civilian control of a militaristic-type police force the sacrificing of some poor and other outcasts to be the victims of police inefficiency and abuse? Is it possible that unsolved murders of the poor and powerless and high crime areas are the price that we pay so that the vast majority of people can live with little or no crime while also free of concern that the police will be turning their community into a police state? I submit that it may be so.
There are over 200 unsolved murders in the poor areas of Boston in the last few years. If this were true of an area such as Weston or Newton, we would be already a police state with military checkpoints and uniformed police routinely knocking down doors to solve these crimes — constitutional safeguards would mean nothing to the politically correct who live in such places if their physical safety were required to be put at risk to protect those safeguards. Such sacrifice for the “Constitution” is not required of them, but of those too poor, too ignorant, or whatever to live in Newton, Weston, or the like.. In such cases, constitutional safeguards must be maintained at the price of physical safety. If the police are so well-trained and efficient that they start solving crime in poor areas, they will have nothing to do and will then look to expand their efficient police powers to other areas — freedom would then be in danger of being lost by everyone.
Maybe academics in law school should start to statistically and rationally discuss and study these issues — Not! They are too busy doing their mental masturbation of writing mindless, ivory tower law review articles.
IX. PERSONAL MORAL CODE OF PROFESSIONAL CONDUCT
As all honest attorneys know, the professional codes of conduct enforced by state bars have nothing to do with moral concerns but only serve two purposes: a) to provide a basis for disbarment or other sanctions against any attorney challenging the accepted or politically correct paradigm for the judicial system; b) to assure that the wealthy or politically powerful attorneys', in particular the large wealthy law firms', method of practice designed to maximize billable hours and paperwork is the accepted paradigm for the practice of law. Thus, an honest attorney concerned with maintaining a sense of justice, fairness, and equity as a person and as an attorney needs to develop his own moral code, unless of course he's really a she, in which case he's got bigger problems to worry about. (Obviously, political correctness is not one of the facets of my personal moral code.)
You see this premise in the celebrity world, with Tom Cruise becoming a Scientologist (not to be confused with Anthropologists who are people who develop similar cosmological theories only theirs is based upon the firm rational basis of a petite fragment of skull bone of unknown origin) and Madonna adopting the kabala, lala, kabola, bona, kabbalah, whatever, moral code (among other things).You look at this and think to yourself, those Scientology guys got quite a racket going, don't they? Then you think to yourself what makes them so much better than me that they can adopt a new moral code and I cannot? Heck, I can make things up just as good or better than they can, can't I?
Then you look at your watch and notice that its time for lunch. But when you're done with lunch, you decide to start looking for a new moral code, but where in the heck are you going to find yourself a new moral code at this time of day? So of course, since you are at work, you look on Ebay but give up after spending all your money buying vintage ABBA records; then after work you drop by Walmart where, surprisingly, or not surprisingly, you find that they have no moral code.
Well, look no further, because I can, free of charge, provide you with the steps of creating your own moral code. Feel free to use it, its yours, forget about me, I'll be OK, I like standing outside in the cold, no more food for me since I am not charging for my legal work.
All you need to do is follow these 10 easy steps. There were 25 of them, but then I said to myself (a habit I need to break), "If you're going to have 25, why not keep going and include all the steps of Division I? Or better yet, why not institute a playoff system and be done with it? Having 25 sort of diminishes the accomplishments of the Top Ten, doesn't it? I mean, Boise State was undefeated this year. If they could beat Oklahoma, who's to say they couldn't have won it all? Ohio State turned out to be not that great, didn't they?"
OK, back to the steps:
- Be creative. If you love penguins, then worship penguins. Send them a card, write them a poem, put them on a pedestal... heck, it might be the first time they get to look over your head. Nothing's sacred (at least not until it becomes a part of your moral code, in which case it does become sacred).
- Don't be afraid to ask for money. Churches don't build themselves after all.
- Exercise. Because it's good for you.
- Attend as many Happy Hours as you can, because that's the best way to pick up... followers. It's the beer goggle syndrome, any moral code looks good with a few quarter (quarter, who am I kidding, they are dollar beers these days! "Yeah, I'll buy you a bucket of Buds, if you let me keep the bucket!") beers in you.
- Bet on sports, because it keeps things in perspective. Just don't bet on moral codes, or you'll never make it into the Moral Code Hall of Fame.
- Exercise, because it's good for you.
- Don't "put up or shut up". I say "put up" and "shut up", just to be different. And because you'll be shutting up, no one will know that you are putting up, so it will be our own dirty little "secret".
- Stop putting stuff in "quotations", it gets annoying after awhile.
- Make Valentino Rossi one of your saints. Just because you can.
- And finally, forget about holy water, incense, and fasting, they aren't healthy. Be easy on yourself. Make smoothies a required drink, allow Icons consisting only of NFL cheerleaders, perfume is allowed at services only if it is still on the woman, or better yet, require perfume to be allowed at services only if still on Jennifer Anniston. She'd make a better god than a penguin would.
I always thought it was funny that Law Day in the United States is celebrated on May 1, the same day that the rest of the world celebrates International Workers Day - an international remembrance directly caused by the workings of the American Legal System. I do not know if this is a sarcastic joke by someone in the Eisenhower Administration, is a result of ignorance, or was intentional. However, as the esteemed members of the Bar gather on May 1 to congratulate themselves on the majesty of the law and their profession, in these times in which even parochial celebrations are suppose to be cross-cultural, diverse, and whatever, the esteemed members of the Bar should give some thought to the rest of the world's celebration on this our Law Day - especially its humorous aspects in order to lighten up a little.
May 1st for a large portion of the world is a commemoration of the workers who were arrested and subsequently executed as a result of the Haymarket Riot of 1886 in my great hometown of Chicago, Illinois. Though the riot occurred on May 4, it was a continuation of labor rallies and strikes that had begun on May 1. During those four days, workers were demonstrating and striking for the absurd, politically incorrect demand of a mandatory eight hour workday. Having enough of this threat to Western Civilization, on 3 May the legal system sent in armed police to re-establish law and order resulting in the death of four workers. When armed police went to break-up another rally on May 4, someone in the crowd had the audacity to fight back and threw a bomb at the police line resulting in the death of Police Officer Mathias J. Degan. Seven men were arrested and tried for conspiracy in his murder. (Though four workers and six other policemen were killed in the riot, these deaths were caused by police "friendly fire" shooting in the dark at anything moving - an embarrassing fact not warranting public inquiry).
Since the prosecution could not offer evidence as to who threw the bomb nor connecting any defendant with the bomber, the theory of prosecution was that the defendants had published anarchist views advocating the start of the strikes and rallies that created the opportunity for the unknown bomber's acts and thus they were equally liable for the murder as co-conspirators. The trial judge using his Common Law powers used this theory of prosecution as a guide for his evidentiary rulings. My favorite part is Defense Counsel William Foster's closing argument. Having abandoned all hope as he entered the Inferno of closing argument (a feeling with which I am too familiar), he said to the jury:
If these men are to be tried . . . for advocating doctrines opposed to ideas of propriety, there is no use for me to argue the case. Let the sheriff go and erect a scaffold; let him bring eight ropes with dangling nooses at the end; let him pass them around the necks of these eight men; and let us stop this farce now.
That is what happened. All were convicted. Four of the men were hung, one committed suicide in prison, two had their sentences commuted to life. All this occurred after of course the Court of Appeals did its job of ignoring substantive error to bend over backwards to distort the law and the facts to find a way to affirm the judgment.
Unfortunately for the legal system of the 19th Century, the death penalty has one unfortunate consequence that executive tyrants have long ago learned to try to avoid, it creates martyrs. And thus we have the worldwide celebration of May Day.
As the esteemed members of the Bar gather on 1 May to congratulate themselves on a job well done, I ask that we give some thought to what the rest of the world is celebrating and ask if the modern American legal system is really any different from what it was 150 years ago and of other systems of the past 2000 years or have just the nature of the injustices it protects changed? Thanks to the protections of the law, in 2008 just as in 1886: 1% of this country's population still owns 30% to 40% of its wealth and power; 20% owns 80% to 90% thus leaving the remaining 80% to share the remaining 10% of wealth and power. Unfortunately, there are no obvious martyrs to such injustice. As the Bar celebrates its diversity of people of color, national origin, sex, sexual orientation, and whatever, do you really have any diversity of ideas or is it still governed by "ideas of propriety" instead of ideas of substance? Now as then, would it be just as willing to kill in cold blood four workers for daring to challenge its authority? My answer is "yes" to the latter; and, "propriety" rules, Dudes! - And Dudettes of course!
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