By David Hoffman
A question I've frequently been asked since I began writing for Pravda.Ru in 2003 is, "Why did you become disillusioned with the practice of law?"
This question is understandable, particularly since, in most people's minds, being an attorney is synonymous with wealth and political power.
I've always been reluctant to answer this question for fear it will discourage conscientious and ethical people from pursuing careers in the legal profession-a profession where conscientious and ethical people are most desperately needed.
But then I realized that if more people are made aware of the legal profession's realities, they might have a better opportunity to change the system and avoid the mistakes that I naively made.
The primary mistake is to assume that America's legal "system" is concerned about truth, justice and fundamental issues of right and wrong. It is concerned about none of those things.
I should have grasped this reality in law school: Professors would emphasize that law and morality are often antithetical, and trial practice courses would stress that successful legal arguments usually minimize or avoid appeals to fairness and common sense. The reason for this, I learned later, is because most judges are little more than pathetic egomaniacs who believe they are tapped into some higher, esoteric "wisdom" that is incomprehensible to the "common" herd.
When I entered the practice of law, I also discovered that even though the system's much touted "adversarial process" is supposed to create a pathway to truth, somewhere in time this pathway was paved over by the fraudulent, politicized chaos that reigns supreme in America today-a chaos that values property rights over human rights, that works harder to rationalize injustice than to do justice, and that consistently bombards the safeguards against oppression enshrined in the Bill of Rights, unless those safeguards protect lawless government officials from answering for their crimes.
Given the extent of nepotism and cronyism in the legal system, it is doubtful these realities are going to end any time soon, which means most idealistic attorneys will soon discover that only two choices await them: Surrender to the corruption and hypocrisy of the system and mine the wealth it can generate, or abandon the practice of law altogether.
The truth is that two sets of laws exist-one for the people whose corruption, amorality and hypocrisy serve the system, and another for those who are targeted by it.
After all, when it is honestly analyzed, what are the tactics the American government is using in its so-called "war on terror," but a tacit expression of its belief that the legal system does not work? Suddenly it has become acceptable to illegally detain people by abusing so-called "material witness" laws; to kidnap people and imprison them in military facilities like Guantanamo Bay or spirit them away to secret prisons concealed in countries often governed by brutal dictatorships; to hold them for years without charge or trial; to deny them even the most rudimentary forms of legal due process; to subject them to brutality and torture masquerading as "enhanced" interrogation techniques; and, in some cases, to even extrajudicially execute them.
This is even happening to American citizens, as evidenced by the cases of Jose Padilla and Anwar al-Awlaki. But, instead of being outraged, Americans are committing the historic sin of dehumanizing the people being subjected to these injustices and abuses, instead of protesting and condemning the egregious "legal" precedents these injustices and abuses are setting.
And, thanks to ludicrous "immunity doctrines" that are little more than invitations to criminality, and hackneyed proclamations about "national security," the courts have routinely allowed the perpetrators of these injustices and abuses to go unpunished. Even when these perpetrators defied court orders (as CIA officials did by destroying videotapes depicting their agents engaged in torture), there were no legal repercussions.
Sadly, even Barack Obama, whose election generated so much hope throughout the world that he was (erroneously it turns out) awarded the Nobel Peace Prize, has joined the parade, pressuring foreign governments into quashing potential torture indictments against Bush era officials, while his Attorney General, Eric Holder, argues that an American president has the right to extrajudicially execute American citizens.
The customary argument to rationalize these atrocities is that waging the so-called "war on terror" requires extraordinary measures. But that song's been sung before. In the mid-1970s, the Church Committee revealed that the FBI, under the auspices of its now infamous COINTELPRO operation, and the CIA, in an unholy alliance with organized crime figures, committed many of the same crimes the American government is still committing today. And even though these "extraordinary measures" initially targeted people reviled by mainstream America (back then it was "communists" instead of "terrorists"), they soon encompassed the civil rights, women's rights, Native-American and anti-war movements.
Although the Church Committee hearings were culminated with vociferous denunciations of government lawlessness and demands for reform, these sentiments did not endure very long. Ronald Reagan pardoned two prominent FBI agents who had been convicted of instigating crimes under COINTELPRO, and federal statutes, like the deceptively named PATRIOT ACT, have legalized many of the abuses and injustices the Church Committee condemned.
In fact, the only difference between the Church Committee era and today's America is that advances in technology, coupled with the legal system's decimation of the Bill of Rights, have provided its government with the tools and unchecked power to commit abuses and injustices on an even larger scale.
Since history has a habit of repeating itself, American citizens and foreign leaders who criticize the United States government's militarism, criminality and human rights abuses can now expect to be arrested, kidnapped, tortured, held without charge or trial, or obliterated by Predator Drones that have turned mass murder into a video game.
Just as America's government operates under its own set of laws, so too does America's wealthy and powerful, because money wins cases more often than truth.
Recently I watched a legal drama called PUNCTURE, which was based on the true story of two Texas attorneys who, during the 1990s, filed an anti-trust lawsuit against a hospital Group Purchasing Organization (GPO) that refused to purchase safety needles designed to prevent, or at the very least reduce, the number of accidental needle sticks health care workers suffered through the use of plastic syringes. The spread of diseases like AIDS and hepatitis (which the movie argues was exacerbated by plastic syringes) meant that such sticks were potentially fatal.
Although the heroes in PUNCTURE had their flaws, the movie's depiction of the dilemmas that often confront attorneys with small practices was chillingly accurate, and in many cases mirrored my own experiences.
For example, the attorneys took the anti-trust case on a contingency-fee basis, which meant they would not get paid unless the case was settled or resolved in their favor. There are four inherent problems with contingency-fee lawsuits, especially when dealing with "David vs. Goliath" situations, as the attorneys in PUNCTURE were: 1). Contingency-fee clients usually do not have the financial resources to pay the attorney fees or expenses (filing fees, deposition costs, etc.) that a lawsuit normally generates. Therefore the attorneys who represent them are often required to spend their own money funding such cases; 2). Attorneys representing contingency-fee clients are generally working to quickly settle a case, so they can get paid. The attorneys who oppose them, however, customarily bill clients by the hour, so their goal is to delay the resolution of a case as long as possible; 3). These opposing incentives make "David vs. Goliath" contingency-fee cases inordinately time-consuming, and can limit an attorney's ability to take on smaller "bread-and-butter" cases that pay the bills; 4). This time consumption and other delays often force contingency-fee clients to accept unfair settlement offers out of frustration or desperation.
PUNCTURE cogently illustrated how the time and financial demands of this anti-trust lawsuit made it increasingly difficult for the attorneys to meet basic office expenses, like utility and telephone bills. Their client also lost investors, and the few contracts for safety needles he had procured were canceled in retaliation for his involvement in the lawsuit. All the while, the attorney for the GPO would remind them that he was going to get paid regardless of whether he won or lost.
Eventually facing bankruptcy, the client decided to accept a settlement offer requiring him to sell his company, and his patent for the safety needles, to the GPO.
My personal experiences with such tactics were not unlike those depicted in PUNCTURE. I was representing a contingency-fee plaintiff and had requested documents, under the "rules of discovery," from a large, well-financed law firm representing the defendant. Knowing I was a sole practitioner, this firm's attorneys photocopied and mailed me thousands of pages of documents, many, if not most, bearing little relevance to the case, and then billed me twenty-five (.25) cents a page.
In addition to inundation, there was also the tactic of withholding, where attorneys refused to provide requested documents by citing some form of "privilege." To dispute assertions that requested documents were "privileged" normally required the filing of a "Motion to Compel Discovery." The risk this Motion carried is if a judge determined that the withheld documents were indeed "privileged," the losing attorney could be ordered to pay the attorney fees of the winning side. Because of this risk, it was often difficult for me to address potential discovery violations, particularly when dealing with larger firms.
But, as was the case in PUNCTURE, sometimes the client is also targeted. I once represented a man who was gravely ill and whose life depended on a costly medication. Aware of this tragic reality, the defense attorneys deliberately prolonged the case by scheduling and then canceling several deposition dates. When I advised them that these delays were exhausting my client's savings and placing his life at risk, they replied, "That's not our problem."
PUNCTURE also showed that even when attorneys want to fight for a just cause, it is not always in a client's best interest to do so. At the outset, the principal goal of the two attorneys and their client was to promote the use of safety needles in hospitals and other health care facilities. But when the prospect of bankruptcy forced their client to surrender his patent to the GPO as part of a settlement agreement, it became clear that safety needles would never reach the marketplace.
I also encountered a similar situation involving an issue of worker safety. My client's hand had been permanently damaged by a defective machine his employer manufactured. Since the state where I practiced did not recognize the "dual capacity" doctrine, where employers can also be considered manufacturers for liability purposes, my client's remedy was limited to worker's compensation.
Nonetheless, I advised him that we should report the incident to the federal and state agencies responsible for worker safety so that nobody else would be injured by that machine. He replied, "I'd like to, but I'm an at-will employee, so the company doesn't even need a reason to get rid of me. If safety inspectors come to the factory, my bosses will know it's because of me, and soon I'll be out of a job."
Tragically, this inability to fight for just causes typically means that many critical issues are never litigated until hundreds, or perhaps thousands, of people have suffered harm or injustice.
But America, one might argue, is a democracy, and what the courts will not do, elected officials can. Unfortunately, that is also more myth than reality.
The two attorneys in PUNCTURE eventually won an audience with a United States Senator who had expressed "concerns" about the safety of health care workers. Although she initially exhibited a willingness to conduct hearings into the benefits of safety needles, the incentive to hold these hearings evaporated after the GPO made a significant "contribution" to her reelection campaign.
As I increasingly identified with the two attorneys in PUNCTURE, it seemed like their adversary, the GPO's attorney, was also speaking to me when he said the following words: "[E]veryone goes to law school to become the good guy, fight the good fight: to do justice. . . . I bet you spent your whole life believing that you were born to do something great, make a difference, do something special-important. [But] that's the most ordinary thought anybody's ever had."
He then recited the example of how all the Congressional hearings, lawsuits and fines levied against the tobacco industry changed nothing: tobacco products are still on the market; the industry is still profitable and heavily promoted, particularly in third-world countries; and new smokers take up the habit everyday.
Decades ago, I was working what is traditionally known as a "dead-end job." As I would walk to the door when my shift was over, I'd glance at the clock and wonder, "When I reach retirement age, will I take one last look at that clock, and realize this is all I did with my life."
So I made the decision to return to college and obtain my undergraduate degree. But before I ran out of use for the dead-end job, it ran out of use for me. My department was closed down, and I was laid off. I used my savings to complete my undergraduate studies, and then, dreaming of becoming an amalgamation of Perry Mason, Clarence Darrow and Thurgood Marshall, I went to law school.
I will admit that my law school experiences did not exactly mirror the GPO attorney's words: Idealists were few, and those with dollar signs in their eyes were many. I dubbed them "people without souls."
Unfortunately, many of these "people without souls" were studying to become the prosecutors, judges and politicians of tomorrow.
So what happened in PUNCTURE? Well, like many movies, it had a semi-happy ending. When one of the attorneys died a premature death (the official cause was a drug overdose), his surviving partner and their client decided to fight on. They convinced a prominent, more experienced attorney to take over the anti-trust case, and, in 2004, the GPO agreed to pay over 150 million dollars in damages. More importantly, safety needles made it to the marketplace, although, as the movie points out, some hospitals still do not use them.
But the aftermath of the case was not so promising: two United States attorneys investigating the practices of GPOs-Shannon Ross, aged forty-four, and Thelma Colber, aged fifty-five-mysteriously died within a week of each other, and the attorneys assigned to replace them were fired by Texas native Alberto Gonzales, who was then serving as United States Attorney General under George W. Bush, a former governor of Texas.
This Texas theme is important, because even though corruption in America's legal system exists in all fifty states and the federal judiciary (most notably in the United States Supreme Court), it flourishes unabashedly in Texas.
In 2004, the same year the PUNCTURE case was settled, Texas governor Rick Perry, a sadistic, amoral reprobate and hypocrite who incessantly trumpets his so-called "Christianity" for political gain, refused to stay the execution of Cameron Todd Willingham, even though questions had been raised about the arson "science" local investigators used to conclude that Willingham had deliberately set the fire that killed his three small children.
After Willingham's execution, the Texas Forensic Science Commission began investigating the reliability of this so-called "science." But, shortly before an expert was scheduled to dispute the official finding of arson in testimony before the commission, Perry replaced the commission's chairman and two other members with political cronies.
John Bradley, the new appointee to the chairmanship, immediately signaled his intention to terminate the Willingham investigation, using bogus concerns about the commission's "authority." These actions, plus his statements about the certainty of Willingham's guilt, caused the Texas Senate to reject his appointment as chairman. Undeterred, Perry and Bradley simply turned to another political crony: Texas Attorney General Greg Abbott.
In 2011, in a statement conveniently timed to coincide with Perry's entry into the presidential race, Abbott decreed that the forensic science commission could no longer investigate the Willingham execution, nor issue any conclusions about the science or methods used by the initial investigators in the case.
People without souls indeed!!
David R. Hoffman
Legal Editor of Pravda.Ru
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