The luxury of principle
Don Quixote on Jul 06 2008 at 6:33 am | Filed under: Uncategorized
One of my clients has a small case, with considerable merit, but (as I keep telling him) it will take far more money to pursue the case than the case could possibly be worth. The client keeps saying “I don’t care what it costs. It’s the principle of the matter.” The client can afford it. He’s rich. It reminds me that principle is much easier to stand by when you’ve got the money to do so.
Al Gore has reaped much acclaim and wealth by bleating about global warming and telling everyone else how they should lead their lives. At the same time, he personally can have an energy hog of a house because, hey, he’s rich and can afford to buy indulgences in the form of energy credits.
The rich, who can afford it, and the poor, who won’t have to pay for it, can advocate universal health care on the backs of the middle class, who already pay for their own health care and can’t afford to pay for everybody else’s.
America can interfere in the affairs of other nations (removing Saddam from power, for example and without even stealing the oil that the anti-war folks falsely claimed we were fighting for), on principle, because we are a rich nation and can afford to. In fact, liberals seem to think we should only intervene in situations where there is no possibility that Americans personally could benefit. We must only act on principle, never out of self-interest.
I was planning on blogging on this anyway, but was encouraged to by Tiresias’s comment that attorneys should turn away paying clients with unmeritorious cases. Now, I’m lucky enough to work for a fellow who has built his clientele over the last 40 years to the point where he has more potential work than he can ever take on. We routinely turn away unmeritorious cases, but we can afford to act on principle.
Tiresias took me to task for suggesting that we might not be so willing to turn away business if we needed the business to put food on our families’ tables. Buy, seriously, what other professions are judged that way? If you are a roofer and your potential customer wants a new roof (and is ready and willing to pay for it) do you refuse to take the business because the customer’s house doesn’t need a new roof? Does the butcher try to talk his steak-buying customer into a salad because vegetables are better for him? Does the DirectTV installer try to convince the customer he really should get off the couch and go play tennis?
People who sacrifice themselves for principle (members of our military positively leap to mind) deserve our everlasting respect. For most of us, though, principle is a luxury we indulge in when we can afford it. I suppose what irks me most about American liberals (and, sometimes, American conservatives as well) is that they are so willing to call on others to sacrifice for their principles. But that’s a subject for another post.
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Actually, DQ, you put your finger on one unfortunate aspect of the law, today, and that is that, thanks to the tort system, American justice is for sale.
Fact is, rich people can get what they want by threatening to sue people into financial oblivion. This happened to me when a company I helped create got sued by a $-billion company /”investor” that wanted its intellectual property. I was openly threatened in a one-to-one conversation, “you can fight us all you want but we know how to extend a lawsuit forever until all you personal resources are gone”. The same could apply to virtually any dispute, no matter what its merits.
Your firm may have the ethical and moral make-up to walk away from such situations, but there are plenty of law firms willing to play the role.
Financial might makes right. Kind of makes a sham of justice, don’t you think?
“Buy(sic), seriously, what other professions are judged that way?”
Legal issues are unique, though. In your roofing example, if I’m a roofer, and a customer has a perfectly good roof but wants a re-roof - maybe because he doesn’t like the color - I re-roof, and we’re done. In the legal field, it’s true that you and the client have a straightforward relationship, but we the people support the framework on which your business is built. Not so the roofer. I grant - in fact, I _implore_ - the framework of the justice system to protect itself from abuse. Judges should throw out cases that have no merit…however I suspect there’s an element of “every man should have his day in court” no matter how trivial. The problem is that the rest of us pay for that day in court. Also, the job of the lawyer is to make as good a case as s/he can - the judge may not be immediately aware that the case has no merit (maybe?) So I think an element of review _does_ belong to the lawyer.
Greetings:
The two aspects that come to my mind are the adversarial nature of legal conflict and what economists refer to as the problem of “externalities.”
Like the days of old when knights were bold and not all created equal, trials of legal combat accept a less violent approach, argumentation, as a greater good. However, there is no guarantor of equal legal capability. Thus, the locus of the moral principle rests with the professionals, the judges and the lawyers to assure good use of society’s scarce resources.
My second aspect is that of “externalities.” As an example, let’s say that I own a house and allow it to fall into disrepair. Obviously, my nonfeasance (legal term alert!!!) effects the value of my property, but it also effects the value of all the other-owned properties nearby. Similarly, the results of legal contests can have results that effect both participants and non-involved third or fourth parties. Certainly, legal precedence would be one of these.
Finally, one of the things that distinguishes “the professions” is this responsibility to the social good. As our beloved CPAs found out not so long ago, more than the absolute moral minimum may be required.
The process of licensure establishes the fact that society and, hence, its individual members, are involved in the evaluative process.
Come on, Don - you must be kidding.
What other professions are judged that way? What other profession has set itself up as the final arbiters of EVERYTHING? What other profession is currently costing every man, woman, and child in this country $700 a year in additions to prices to cover their activities? (And gets away with it because, hey, looka that, what a coincidence: most of the people in congress went to law school. There’s a shock, eh?)
If a roofer puts a roof on a house that doesn’t yet need a new roof, that’s between him and the owner - who may just wish for a different color shingle, or tile, or whatever. It doesn’t have the potential to affect seventeen other people. And the job he does is subject to a building inspector, who is over his shoulder and down his throat to make sure he does it right.
The butcher doesn’t talk the customer into vegetables, because vegetables are in fact not necessarily better for everybody - but he does have to use FDA approved meat, and he is subject to half a dozen agencies swooping down to inspect and make sure his premises are just swell.
Tennis - I dunno, I’ve been through so many knee scopes that the stopping and starting and torquing of tennis would put me in the hospital after about three minutes. I’m much better off with DirecTV. But again: that would be between me and the installer, and not involve anybody else.
Lawyers have the proven ability to do so damn much damage to the society as a whole that every time one opens his mouth it should be questioned. They have skewed the whole construct, and we all pay for it.
And maybe that’s why that profession is - and should be viewed the way it is. It should be viewed with a much more gimlet eye than it in fact is. Everybody else in the world has outside oversight: lawyers are overseen by themselves. Uh-huh. If you believe that one, I know where there’s a bridge you can get cheap.
Children bellieve that the bar oversees lawyers to protect people from their mistakes - and outright depradations. The adults in the room know the ethics boards exist mostly to protect lawyers from any consequence.
I wonder if a general might be a better analogy than a roofer.
As above comments have pointed out, if someone wants to waste money on a silly roofing project and you (the roofer) help him to do it, then no one is harmed except him…and, in fact, he isn’t even harmed, as long as you have honestly told him that the old roof is still good and he still wants the new one for whatever emotional (but valid to him) reason.
If a skilled general, on the other hand, uses his professional skills in the service of a bad or outright evil cause, then plenty of people are hurt–mostly people who had no choice in the matter.
The analogy between lawyer and general isn’t perfect, because in the latter case there is an infrastructure of laws and procedures which will (at least in theory) help the right side to win regardless of the skills of their advocates…but we all know that the theory isn’t always true.
Danny,
Your story reminds me of the one time I played the threat game. A hungover jerk fell asleep at the wheel of his van and rammed my car from behind, turning it over. I was unhurt but the car was totaled. The sleazebag insurance man for the other guy didn’t want to give me enough money to replace my car, so I told him I worked in a clinic and that I had enough medical friends to come up with whiplash, back problems and who knows what. I got my money. It felt great.
For the record, the settlement enabled me to buy a used Rambler, which was fair given the age and value of my car. I didn’t want to make money off the accident, but I didn’t want to be intimidated by a sleazebag.
Wow, Tiresias, you’ve built up quite a strawman there. Lawyers, as lawyers, don’t set themselves up as arbiters of much of anything. Most of us lawyers are, in the end, beholden to the legislators and judges who pass the laws and interpret them (yes, most of them are lawyers, but that’s the fault of the voters, not the profession). Interestingly, you are the one demanding that simple attorneys like me set ourselves up as the final arbiters, by deciding what claims are worthwhile and what claims we should reject.
But rather than attack what is obviously a deeply held prejudice against attorneys (based on unfortunate personal experience, perhaps?) let me ask you something. Was it Churchill who said that democracy is the worst system in the world except for all the others ever invented? Our legal system is the same way. It really is nearly as awful as you say it is, but it’s the best system yet devised. What would you replace it with?
Expat, thanks for sharing your story. An awful lot of people whould have wanted to make money off of the accident. You were lucky, though. My aunt was killed sitting at a stoplight when she was hit from behind by a drunk. The impact broke her neck & she died on the spot.
If you only adhere to principles when you can afford to, then I submit that they are not principles. Guidelines? Feel good resolutions? Meaningless blather?
I expect many of us have violated principles at one time or another; and if they were truly such, we never forget that weakness.
We must only act on principle, never out of self-interest.
But isn’t that the principle of self-interest, when it is the Left advocating such things yet they aren’t the ones that will die or get killed by these “interventions”?
I was planning on blogging on this anyway, but was encouraged to by Tiresias’s comment that attorneys should turn away paying clients with unmeritorious cases.
The justice system rightfully gives judges, appeal courts, and legislators this power. Lawyers are only supposed to represent their client and present their side of the argument. They aren’t there to present the other side of the argument, thus making them much like mercenaries that fight for whoever pays them. Which is one reason why the public doesn’t like them.
If a lawyer will go up against you just cause somebody paid them more money than you, does that motivate trust on the part of the general public? Not really.
I suppose what irks me most about American liberals (and, sometimes, American conservatives as well) is that they are so willing to call on others to sacrifice for their principles. But that’s a subject for another post.
Calling on others to pay for your bennies is free. When has an American ever rejected real, free, stuff?
There obviously needs to be tort reform and a crack down on judges and lawyers and appeals courts and politicians that controls such processes.
Crack em all down, if you ask me, but that’s unlikely to happen all at once.
So, DQ…where do you stand on tort reform? Would you support changes to the system? And, if so, what kind of changes?
Oh, gosh, Danny, I wish I had all the answers. We could start with: (1) a cap on awards, especially for mental or emotional damages; (2) limits on punitive damages; (3) each side bears their own attorneys fees; (4) limits on contingency fees, especially in class actions; (5)much streamlined capital punishment appeals process; (6) in California, a much shorter summary judgment cycle; (7) all complaints must be verified by the client under oath; and (8) experts only allowed to testify at the request of the judge, when the judge thinks they will be helpful. That’s just off the top of my head, but I haven’t given it much thought. What changes would you support?
I really don’t know, DQ. That’s why I was asking. I think that the right to sue for redress needs to be protected. All your ideas sound good to me but I don’t know enough about the legal system to be able to think through all the consequences. Quicker summary judgments sounds like a good idea.
One of the very great frustrations in my own case was that the opposing team was allowed to make allegations without evidence to keep the trail going and they were not required to put any evidence on the table as the trial dragged on and on. In fact, there was no evidence, just allegations (the case was eventually dismissed with prejudice…but had it not been for an angel friend and attorney (smiley face, here) who helped me out pro bono, I would have been destroyed financially by the end of the case).
You might not like this, but I also believe that we should be able to sue opposing counsel or to receive summary damages from same if they knowingly supported spurious tort activity. Would that have avoided a Dow Corning situation? I simply don’t know. I recognize that one problem in this is that you can always get a judgment in your favor, but collecting on that judgment might not happen for centuries as your opponent can drag out the collection process in court as well.
Your thoughts?
DQ,
While I agree that our democratic republican form of government is the best that has ever been devised, this form of government must be predicated on a society that has some semblance of honor, if not in fact, then in principle.
Many in our society laud cheating the system, steal from the system and snicker when they succeed. If the self-aggregating ideology of self and greed has become the predominant ethic in a society, it must necessarily bleed over into our institutions of law and governance.
You see, I think all the corruption that we see in our Congress and in our Judicial Branch are but expressions of “We the People”, and the overwhelming majority of these people in these institutions are lawyers.
But these lawyers in power are just men, like the rest of us.
As to lawyers actually practicing laws, they too get a bad rap because it happens to be the duty of their profession in the case of criminal law to defend the indefensible— and on occasions, they succeed, even though it is incomprehensible that they do.
Take for instance the burglar who sues the victim’s house because the fell through the glass roof and wins. This was a civil case a few years ago in Texas where the judge ruled in favor of the burglar for thousands of dollars.
This was a clear case of judicial insanity. The judge should have thrown the case out of court before it began and thrown the lawyer in jail for contempt of court for bringing the case to him in the first place. Sadly, this wasn’t what happened. (I personally think judges who hand down rulings like these should be impeached and snatched from the bench and put on trial.)
But in cases like these, how else could it be? Lawyers are just people, like us. How many times have I seen people commit the injury and then play the “victim”? How often have I seen people belittle and scream and justify it because they are “victims” of whatever?
It’s perversion in extremis and lawyers are not exempt from it; they are just more visible and spectacular practitioners of a societal malignancy.
Lawyers defend criminals, manipulate and twist the law for money and their clients (who are “WE the People”), are used to stack the deck against the less affluent and destroy them in legal defense fees. The list of abuses are endless, and, yes, those resentments against lawyers are not unfounded.
However, lawyers also defend the innocent. They can guide law-abiding citizens out of potential troubles and avoid ruin.
And when falsely accused, there is no more beautiful sight than a good lawyer speaking on your behalf.
Yes, DQ, like Churchill said, there hasn’t been a better system of government devised. But I would also caution that it was Plato who said that democracies devolve into anarchy and then tyranny.
Only lawyers (who happens to sit on the Supreme Court) are in the position to argue that the Second Amendment “militia” meant only state militia, even though dictionaries from the late 18th century clearly state that “militia” is defined as every able-bodied man. The dictionary is still sitting at William and Mary College.
With the twisting of the law in a subjective free-for-all meaning for those affluent enough to do the twisting, it is a short step to anarchy.
Totalitarian tyranny will not be far behind. And should such at time come, it would not be just the lawyers who would be responsible. It would be all of us, for where do you think lawyers come from except from among our ranks, We the People? Not from a tree or a delivery pelican, I can tell you that.
America would not have failed us then. We would have failed America.
Hi Thomas,
What a terrific comment! I’d add just one thing. You mentioned that “and the overwhelming majority of these people in these institutions [Congress and the judiciary] are lawyers.” It just makes sense that most in the judiciary are lawyers. It’s a little like saying most surgeons are doctors. But the voters choose the members of Congress. If they don’t want lawyers making their laws, they have every right to vote them out. That’s the thing about a democracy. Our government is just as good, and as bad, as we choose it to be.