-Caveat Lector- from: http://www.zolatimes.com/V3.32/pageone.html <A HREF="http://www.zolatimes.com/V3.32/pageone.html">Laissez Faire City Times - Volume 3 Issue 32</A> ----- Laissez Faire City Times Aug 16, 1999 - Volume 3, Issue 32 Editor & Chief: Emile Zola ------------------------------------------------------------------------ Systems Thinking & Judicial Failure by James Wright This is the Court of Chancery; which has its decaying houses and its blighted lands in every shire; which has its worn-out lunatic in every madhouse, and its dead in every churchyard; which has its ruined suitor, with his slipshod heels and threadbare dress, borrowing and begging through the round of every man�s acquaintance; which gives to monied might, the means abundantly of wearying out the right; which so exhausts finances, patience, courage, hope; so overthrows the brain and breaks the heart; that there is not an honorable man among its practitioners who would not give - who does not often give - the warning, "Suffer any wrong that can be done you, rather than come here!" �Charles Dickens, Bleak House The founding fathers had no opportunity to read Dickens, who was born in 1812, or they might have reconsidered modeling the United States judicial system after the English. Things haven�t improved since Dickens� time. What appear to be the root causes of failure in the court system? Laissez Faire City Times readers can probably supply more, but I am aware of the following: 1) The perception that money wins over justice or truth, as Dickens protests in the quote above. 2) The perception that the legal system is far removed from any understanding of our lives, our needs or our concerns. 3) The perception that lawyers and judges live lives of privilege, power and influence beyond any reason or necessity. 4) The perception that the courts are overcrowded; it can take years to obtain process in any case. 5) The perception that the laws are made and interpreted without regard for logic, physical reality or common sense. This should be enough to supply grounds for discussion. Every system is perfectly designed, carefully maintained and precisely operated to give you exactly what you get. Where does this lead, in relation to the judiciary? If "money talks" in the judicial system, then a system change will be necessary to reduce its influence. (I am not about to suggest you can remove the influence of money totally from just any capitalist system, but it could make sense here.) How might this be accomplished? How about this: The principals (NOT the lawyers) MUST argue the case before the judge and/or jury. You can hire all the legal talent you can afford, but if you�re doing the suing (or being sued), you must stand up and argue the case. Your lawyers can coach, recommend, type up lists of questions for you to ask and answers to give the other side, but you have to do the speaking. This naturally reduces the role of the lawyer to advisory status, but (as is true currently), they have literally nothing to lose: YOU will pay the fine, do the jail time or hang, so you should be responsible for delivering your case. This will change a lot of courtroom dynamics, and restore the people involved to their logical place in the proceedings. The first objection I get when I propose this in conversation is that there are those who are incapable of defending themselves, whether because of mental, emotional or personality deficiency. My response is this: if you cannot stand up and tell your side of the story before a group of adults and accept the consequences, then you are a minor. You deserve all the protection of the law; but if you ever accept "appointed counsel", then you must give up driving, voting, drinking alcohol and any other "privilege" accorded an adult in American society. The second objection is that the corporations will have an overwhelming advantage over the individual. This denies the dynamic of juries favoring "the little guy" over the "big business", but I have a suggestion for that also. Make the head of the business present his company�s case. If he�s a lawyer, then the highest-ranking non-lawyer presents the case. The corollary for both individuals and corporations is that anyone you select can SETTLE your case for you; only you can ARGUE it. Nightmares and Nuisances What a nightmare! How can this work? Suppose you�re the head of GE, a fairly large company. If someone sues you, you have two choices: settle it out of court (negotiate), or press the case yourself. My guess is that upwards of 75 percent of the cases involving company vs. individual will settle out of court, since the president will not be able to spend an infinite amount of time litigating. "Nuisance cases" will occur from time to time, and the boss will have to choose whether or not to settle or argue these, as a cost of doing business. If he�s a lawyer, then he will have to have a V.P. argue it; this will tie up TWO major corporate officers for a while, however. But remember that unless the plaintiff is a minor, he�s going to have to present in court too, spending time and money on his lawyer to coach him for success; and if the jury gets the notion that the plaintiff is trying to sucker the company, I suspect that punitive damages might be in order against the plaintiff. The third objection is that those who are illiterate or uneducated would be at a disadvantage. This is true; the law is generally written down on paper, which is why one movie was called The Paper Chase. If they are minor, children or recent immigrants, then they can accept "appointed counsel" to plead for them. This should negate the advantage, albeit at the cost of driving, voting and drinking, etc. "What?" I can hear the screams now. "You mean those who can�t read and write shouldn�t drive, drink, or vote? You elitist!" Yes. But consider: Do you want people who aren�t capable enough to argue a court case driving on the road (coming toward YOU)?, getting drunk in a bar (next to YOU)?, or voting in an election? And can you imagine a greater incentive than this for learning to read and write and to get an education? This will also go a long way toward removing that second perception, that the legal system is a monstrous machine operating on mysterious principles far removed from any relevance to ordinary people�s lives and concerns. Once you�ve spent a few weeks in a courtroom arguing your own case, the legal system will appear much more concerned with your everyday life and times than it did before. Further, if you DO have a legitimate beef, with GM as an example, and the president of GM has to come to Oklahoma City to defend his company against your suit, then that issue of remoteness diminishes considerably. Killing the Lawyers I�ve given up trying to find out what happened in 1965: �The Year They Hanged the Lawyers.� �Robert . A. Heinlein, The Number of the Beast Has anyone else ever noticed that Article III of the Constitution (setting up the judiciary) does not contain the word "lawyer"? Once people have to row their own boats, the perception of the power and privilege of lawyers will diminish. As for judges, elect them all - every one of them below the Supreme Court level. Every five years, they need to stand for election - and win their seat on the bench. This happens in some lower courts, but needs to happen higher up (into the Circuit Courts ) as well. Political cronyism, ABA support and previous tenure will lose efficacy - and the people will regain confidence in the judiciary itself. One more thing - open up the minutes of the disciplinary committees. Are only lawyers qualified to determine whether a lawyer is competent or ethical? If the ABA insists that only it can police itself and remove the "bad apples" from practice, then the public needs to see that it is done - and how. I can�t say the name of a single lawyer who�s ever been debarred besides Richard Nixon - and I can�t believe he�s the only one who ever merited it. (How about Bill and Hillary Clinton?) If you want respect for lawyers, then show that they deserve it - publish the names and punishments of the unworthy. Having the corporate officers arguing their cases along with the individuals should lower the caseload on the courts dramatically, which will remedy overcrowding in the courts. I would expect anything that isn�t extremely expensive to be negotiated into settlement outside the legal process, which will give the existing lawyers a positive outlet for their energies. Cases that go to court should be either very expensive or life/death/jailtime serious; do we really need dog-bites-cat court cases? The final perception is that the laws are made and interpreted without regard for logic, physical reality or common sense. I wrote about making laws in my article "Systems Thinking and Legislative Failures". The current article is about interpreting them. And to me, one part of "interpretation" is: Does this law make sense? Does it fit in with everyday reality like gravity, magnetism and thermodynamics, or is it a fairytale idea of what some committee thought people might appreciate? But firstly, lastly and throughout: Is it Constitutional? You see, somewhere along the line the refrain became: Only the Supreme Court can decide whether a law is Constitutional or not. I can�t find this in Article III; and I can�t see why the lower courts can�t decide a law is unconstitutional as well. Can you imagine the improvement in the lives of ordinary citizens if the laws regarding "victimless crimes" were declared unconstitutional at trial? At the moment, "medical marijuana" is legal in six states, but the Federal authorities insist it is not. If the Supreme Court of the State of California declared the BATF to be illegal and all its agents criminals, how long would it take for the citizenry to show them the border? Systems isolated from feedback cannot function properly. If we are going to regain responsiveness from our courts and the legal system as a whole, then we need to participate in the process. Call your legislator and ask him to sponsor legislation to open up the ABA disciplinary committee meeting minutes in your state. If he demurs, ask him why he�s opposed to shining a little "sunshine" on their proceedings. Move forward to electing all judicial positions, to bring some accountability to the ranks of judges. If they are collecting public money as a salary, we should be able to vote for (or against) them. Campaign for some teeth to the Tenth Amendment, so that we can reclaim some territory back from the Federal behemoth. Finally, but not least, keep trying to (this is my personal crusade): "Improve the System - Vote Libertarian!" ------------------------------------------------------------------------ The "James Wright" system has inputs of money, love and time; it has outputs of a family of four, engineering designs and occasional articles to Laissez Faire City Times, among others. Details can be discussed at [EMAIL PROTECTED] -30- from The Laissez Faire City Times, Vol 3, No 32, August 16, 1999 ------------------------------------------------------------------------ Published by Laissez Faire City Netcasting Group, Inc. Copyright 1998 - Trademark Registered with LFC Public Registrar All Rights Reserved ----- Aloha, He'Ping, Om, Shalom, Salaam. Em Hotep, Peace Be, Omnia Bona Bonis, All My Relations. Adieu, Adios, Aloha. Amen. 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