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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.