A REFLECTION
It took me a while to name this blog. I wanted to make it memorable. At the same time, I wanted it to reflect my life philosophy. I didn't want to sound pretentious; rather, I wanted to alert the reader to the big questions that animate me. And I also wanted to hint that I am at heart a "satirical rogue." That's why I added "free beer" at the end.
I chose "Reason," "Commerce" and "Justice" because those subjects focus my critical energy. Everything I write in some way relates to those three concepts. No matter what style I choose, those concepts unite my work.
Reason interests me because it encapsulates the human capacity for thought. Reason allegedly separates human beings from other animals. I write about reason's limitations, as well as its less-than-reasonable corollaries: Emotions, reflections, memories, impressions. My fixation on language also involves "reasoned" analysis. No matter the specific subject, however, I cast a critical eye on reason. I do not praise it as an inexorable pathway to truth. Indeed, I maintain a healthy skepticism for reason. I am a qualified empiricist: Reason is just one tool to help me understand existence. But I certainly don't put all my money on it. Too much unreasonable stuff happens in life. In that light, putting full trust in reason is not only unadvisable; it's also really disappointing.
Commerce offers me plentiful material for both satire and commentary. I define myself against commerce. Its values repel me. I do not like promoting myself. I do not like circulating resumes or kissing ass in interviews. I don't like wearing little costumes and going to work for private employers. I also don't like unfairness, inequality and hypocrisy. Commerce is rife with all three. Commerce also interests me because it is all about instrumentalism; and that clashes with my steadfast respect for the individual. In commerce, people play roles to make money: Master, servant, employer, employee, officer, director, customer, client…the list goes on. In the process, they lose their humanity. They also tend to exploit one another for crass personal gain. Commerce is the stage upon which to showcase my ruthless cynicism. It allows me to ironically brandish my own colors while criticizing things I fundamentally don't like.
Moreover, commerce is the perfect context in which to explore the tension between flexibility and principle. I often write about principles and honor. Commerce weighs against both. And sadly, my satires take doubled strength from the unfortunate truth that most people live for commerce rather than honor. Just listen to the radio or watch television. You will see and hear a lot more commercial messages than honorable ones.
Finally, justice draws me because it represents something larger than commerce. Justice has obsessed philosophers for millennia. I am just continuing down the road. In my work, justice stands as something hopeful, something better than ourselves, something transcendent, something to achieve. Justice is that great, intuitive feeling that something is right, not wrong. I do not identify a source for it. It just "is." I am no theologian. But in my heart I know when a situation is just. And I know when a situation is unjust. Injustice reeks. It seems to revolt against nature.
Justice is about ideals. It is about striving for something more than mere convenience or comfort. In that light, I use justice to champion my zeal for principle, honor, equality and "better" things. I use it to underline the key distinction between subjectivity and objectivity, because justice is largely subjective and cannot be objectively measured.
I also use justice as a backdrop to criticize the law. My fascination with ethics relates to my suspicion toward law. Justice and ethics go hand in hand. Ethics clashes with law. Therefore, law and justice clash, too. If you've spent any time studying my writing, you will know that I have very little respect for the law. If anything, I relegate law to the "commercial" category. And that it is ultimate insult, because law claims to advance justice. I make a few exceptions in my criticism for law, especially in cases where the law protects individual rights and enforces principles that restrain commerce. But I castigate everything else. In fact, law in most cases does not serve justice at all. To the contrary, in most cases it serves commerce--my perpetual theoretical foe.
In essence, then, my writing boils down to a battle between justice and commerce. I even thought about renaming my blog "Commerce Versus Justice," because that dichotomy really dominates my arguments. Something is either "just" or "just commercial." No matter what subject I address, chances are good that it involves hopeful ideals and crass realities. I lament the crass realities and wish for the hopeful ideals. The hopeful ideals are "justice." The crass realities are "commerce." In the "real world," commerce usually wins. In my eyes, it is usually an "unjust victory." And that "injustice" provides me fuel for criticism, commentary and satire.
But I decided against renaming my blog. Although I consistently allude to the struggle between commerce and justice, I refuse to abandon my commitment to "reason." There is a significant self-exploratory element to my writing. I write about people, their motivations, thoughts, dreams, hopes, happiness, unhappiness and machinations. While these things often involve commerce, they also implicate reason. I need to retain my focus on "reason" in order to continue writing about human beings--myself included. That is why I am going to keep my original three-part title. Well, four-part when you drink the free beer.
I sketch my thoughts about my blog's title in order to provide background for an important story. After all, one of the reasons I opened this blog was to therapeutically resolve difficulties that began to arise in my mind around 2006. In 2006, three critical events occurred in my life: (1) I finished my legal education; (2) My father died; and (3) I rejected law practice on principle. In essence, my life expectations completely changed. For one, I began thinking about death more than I ever had before. Second, after spending three years submerged in legal study, I recognized that I had no place in legal practice. That forced me to reevaluate my life in a very basic way. Beginning in 2006, I started to understand the distinction between commerce and justice. And when my father died, I used my reason to reflect on life. My philosophical fixation on reason, commerce and justice had begun.
I was not a child anymore. I was suddenly an adult. And life was full of trouble. Wrenching, inscrutable trouble.
In 2007, my focus on reason, commerce and justice sharpened even more. As I have written in several other contexts over the years, 2007 was the year in which my life partner, Steve, suffered a life-altering accident. I have not gone into great detail about the event. Neither has Steve. Yet I am painfully aware of it because I lived through its aftermath. And in truth, Steve's story perfectly illustrates the tension between commerce and justice. In this sense, Steve's story cemented my theoretical focus with a real life example.
Late on August 1, 2007, Steve went to work out at an all-night gym in Chicago. Back in those days, we used to go our own ways. We stayed out late alone sometimes and it never mattered. I went to bed about midnight. At about 2:15 AM, I got a phone call from the Illinois Masonic Hospital. "Are you Steve's partner?" someone asked. Half-asleep, I replied: "Yes. What is it?" "Steve has been badly burned. He wants you to visit him." I could not really understand what that meant, but I was stunned. "I'll be right over," I think I said. Then I hung up. I sat on the edge of the bed for a minute or two thinking. Then I got up and pulled on my jeans. I had no idea what was in store.
I got to the emergency room about 3:00 AM. Steve was laying on a cot, incoherent, drenched in sweat. They had wrapped a huge bulky bandage on his right arm. I could see dark-red bloodstains on the upper part. It looked like his skin had peeled right off midshoulder. Steve managed to tell me that he had been burned in the gym's steam room. He said he had just walked in when suddenly a jet of steam burst from the wall and scorched his arm.
I did not really know what to make of his story at the time. He was delirious. He must have been in shock. He talked about our dog and his clothes. I stayed with him in the emergency room for about two hours while the hospital arranged a transfer to a burn center outside town. I dozed for a while on a folding chair. I remember when the emergency room staff wheeled him away and put him in the back of the ambulance. He was smiling. He said he would be fine. He told me to go home and get some sleep. He told me to meet him at the hospital the next day. Then they closed the ambulance doors. The ambulance rolled off into the brightening summer dawn.
I had a meeting with my law school dean later that morning. I think I wanted to talk to him about getting a job with a federal judge. I somehow managed to attend the meeting with a straight face. At the time, I thought Steve would be all right, so I don't think the meeting went badly. The dean told me he would "put a word in" for me with several judges. I was out within an hour. I immediately hopped in the car and went to visit Steve.
Steve was fine when I arrived. They had his arm suspended above him in a sling. The doctors said they were going to perform skin graft surgery on him at 9 AM the next day, August 3. I spent about 8 hours in Steve's hospital room, assuring him that everything would be all right. Steve was cheery that day. He was happy that I was at his side. I went home about 8 PM. At 9:30 PM, he called me and thanked me for being at the hospital during the day. I told him I wouldn't abandon him for the world. I also told him I would be there as soon as he came out of the recovery room after his surgery. He cried when I said that.
I went to bed that night confident that Steve would be fine. I thought they would just do the surgery, then he would be home in a week or so. I was tired, sure, but I did not think life would be much different after that day.
I got up on August 3 waiting for a phone call to let me know I could visit Steve after his surgery. At about 11:00 AM, I got a call from a nurse who told me the surgeon needed to speak with me. I figured the surgeon was just going to tell me that the surgery had gone well and I could visit. So I called the surgeon back. I didn't reach him. After two more tries, I did reach him. He told me to come to the hospital right away. That was all he said.
I was a little nervous at this point. I had never really spent much time around hospitals. I did not know the procedure for getting news about surgeries. I thought maybe the surgeon could only tell me details about the surgery in person, not on the phone. So I headed back over to the hospital. It was about a 40-minute drive. I remember George Benson's "Affirmation" was on the radio during the trip.
I made it to the hospital and parked my car. First I went to the gift shop. I bought Steve a "Get Well Soon" balloon and a teddy bear. Then, holding the balloon in one hand, I went to the main desk. I said I was here I visit Steve. The guard tapped the keyboard and said: "Burn ICU. Seventh floor."
Now I was getting more nervous: Why is he in the ICU? Why isn't he in the recovery room?
I followed the signs to the Burn ICU. I went through a few automatic double doors into a large room with a nurse's station in the middle. Patient rooms lined the walls in a big circle around the station. I asked one nurse: "I'm here to see Steve."
She pointed to a room on my left. It was full of doctors, nurses, interns, even executives in suits. I pushed my way in. Steve was unconscious on a bed, angled up. He was on a respirator. A thick silver tube stretched from the respirator into a hole punched through his throat. There were two tubes lined into his nostrils. More tubes funneled out from his arms. Wires were tacked on to his chest and legs. There must have been about twenty wires and tubes attached to his body. His mouth was wide open and his eyes were as if glued shut. His tongue was protruding from his mouth slightly and it looked completely parched. There was blood caked on the edges of his lips. Bleeping, whirring machines and monitors ringed his bed.
I let go of the balloon and covered my mouth with my hands. I left the room for minute to reflect on what I was seeing. At that moment, the anesthesiologist approached me and explained nervously that something went horribly wrong during the surgery. Apparently, Steve had a strong reaction to a particular anesthesia and it stopped his heart. He told me that he had jumped on top of Steve to perform CPR and that he finally got his pulse back after 53 seconds. After reviving him, they stabilized his blood pressure and rushed him to the ICU. He told me he was in an induced coma. They wanted to keep him motionless until they could place a stent in his heart. Apparently, his body had convulsed uncontrollably after his heart stopped.
I could not believe what I was hearing and seeing. Here was the man I had loved for seven years, reduced before me to a motionless vegetable. Here was the man who just two days before was strong, enterprising and courageous; and now he was on the verge of death. I felt utterly broken. I immediately thought about my father. Was I going to lose Steve, too, just a year later? What was this life? What was the point? Was I doomed to lose everyone I loved?
At that moment, I thought that Steve would die. At the very least, I thought he would never recover his brain function. The doctors were all very grave. They said: "We have no idea what will happen with him. But he did go without oxygen to the brain for over a minute." I just paced around the ICU all day. I made phone calls. Our best friend was flying in from New York that day. I took a break and picked him up at the airport. That was a good distraction; I needed support that day, and he gave it to me. We spent the rest of the day staring hopelessly at Steve on the respirator. We worried every time a machine made a noise. Finally, we left at about 8 PM.
Over the next two days, Steve was in critical condition. He could not open his eyes. I just sat at his side for hours at a time listening to the respirator and the other beeping machines that kept him alive.
On the third day, however, Steve suddenly opened his eyes. The paralytic had worn off. He looked around as if in a panic. Then he turned and saw me. His face glowed for an instant, then it crumpled into tears. He grabbed for my hand as the nurses struggled to keep all the tubes attached to his body. Tears streamed down my face. I clenched his hand and told him everything would be all right. I tried to explain what had happened, but it was obvious he could not comprehend what was wrong. He could not speak. He could mouth words, but the tracheal tube blocked his throat. Still, as pitiful as he appeared that day, I knew he would survive. It was a huge relief.
Ultimately, Steve stayed 33 more days in the hospital. I was there every day from morning to night. He got the stent he needed in his heart. He underwent three more skin graft surgeries to repair the arm. They had to shear skin off his thighs to replant it on his arm. At one point, the graft did not take; so they had to put cadaver skin on his arm as a "bedding." Toward the end of his stay, they took out the tracheal tube and he could speak again. His voice had changed and he lisped, but he could speak. There had been no brain damage. He was handicapped and slower, but he had survived. He went home September 5, 2007. The hospital bill came to something around $2,000,000.
In the months that followed, Steve pursued a legal case against the gym that caused his injuries. We hired a law firm to investigate and prosecute the claim. As a former trial lawyer, the case seemed a winner to me. There was nothing wrong with his arm before he went into the steam room on August 2. When he came out, he was permanently injured. His "special damages" amounted to at least $2,000,000, not to mention the "loss of a normal life," "disfigurement," "pain and suffering" and "mental anguish." There was no quarrel that the gym's facilities caused these injuries and Steve had no control over those facilities. Based on my experience, I estimated Steve's case at around $7,000,000.
Despite these compelling facts, the case went poorly. For its part, the gym denied it had done anything wrong. It actually came forward with some questionable "incident reports" that said that Steve "laid down in front of the steam vent" and "caused his own injury." The gym manager--who was not there on August 2--claimed that Steve must have "passed out in the steam room," then fallen in front of the vent for a long time. Yet the medical records all corroborated Steve's story. And the emergency responders who took him from the gym said nothing about "fainting" or "falling." They did not treat him as they would have treated someone who had just fainted. Steve's surgeon even said there was no evidence of a fall.
Still, our lawyers found the gym's self-serving reports troublesome. For some reason, they thought that if the gym's story were true, then Steve could not win the case. Yet Steve always told the same story about how he was injured: He walked into the steam room and a jet of steam suddenly burst from the wall. The gym did not provide warnings anywhere about steam vents. It was a very big steam room with several blind corners and crannies. I had been in it myself and often found it difficult to determine where steam was coming from. That is why it did not surprise me when Steve said the steam took him by surprise.
And no matter what story people believed, the logic of the case seemed obvious to me: You shouldn't allow access to something on your property that can cause an injury as bad as Steve's. It's almost like letting a wild animal loose in your house during a dinner party.
But our lawyers did not see it that way. They said they could never sell Steve's story to a jury. They said they could not convince people that steam could emanate from the wall when the pictures showed the vents were only at ankle level. They did not acknowledge the fact, however, that they took the pictures almost a year after the event. Who knows what "improvements" the gym had made in the intervening time.
Yet all these rationalizations took a back seat to an even more compelling problem for our lawyers: They discovered that the gym did not have any liability insurance. Liability insurance means that an insurance company pays if someone gets injured on your land. If you don't have liability insurance, an injured person can go directly after your assets. But if you have no assets--or if the assets are insufficient to cover the injury--it makes little sense for an injured person to pursue you. After all, it takes years to win a judgment, let alone collect on one. Insurance companies shorten the time needed to get money from an accident. Without insurance, most injury lawyers don't waste their time on cases, even if they are meritorious. After all, they don't get paid until they win. If they spend 5 years working a case, then discover no pot of gold at the end of the rainbow, they will have wasted 5 years for nothing. That is a terrifying prospect for a lawyer trying to pay his rent.
So our lawyers fired us. They never said that the gym's insurance situation was the reason they turned us away. But it was obvious to me. The gym got away scot-free because it strategically decided not to buy liability insurance. The gym knew that no personal injury lawyer would waste his time pursuing an entity without insurance, so it just did not buy insurance. In essence, it insured itself against lawsuits by refusing to insure. It understood that civil litigation is a time-consuming, expensive business. So it correctly guessed that most lawyers would avoid a case that does not promise a quick insurance payout.
In short, the gym acted in a commercially prudent manner. It minimized its liabilities. It saved money.
But Steve suffered injustice for it. Steve's life changed because of the gym's conduct. It offered its facilities to the public for a fee. Those facilities nearly killed Steve and gutted his entire existence, not to mention mine. And due to the gym's strategic failure to buy liability insurance, Steve will not even receive the psychic satisfaction that the law avenged the hurt he endured. Put simply, Steve did not get justice. The law failed him.
Or did it? Steve's case confirms me that the law does not serve justice. If it did, lawyers would have flocked to represent him. Yet none did. From an intuitive perspective, Steve suffered a gross injustice due to another's negligence. No one should ever have to endure such clear wrongs in life.
But the lawyers did not flock to his aid because justice does not motivate them. Avenging injustice, after all, does not necessarily pay the bills. Paying the bills is a quintessentially commercial function. And lawyers did not take Steve's case because they could not assure themselves that it would be "worth the investment." It did not matter that he suffered injustice. Rather, his case was not "commercially viable" because the gym did not have insurance.
In Steve's case, commerce won out over justice. That's a lesson in law for you.
I have no more illusions about the law. It is a business like any other. If a case doesn’t promise a quick profit, no lawyer will take it, even if a person has suffered obvious injustice.
Showing posts with label Litigation. Show all posts
Showing posts with label Litigation. Show all posts
Tuesday, March 16, 2010
Wednesday, December 16, 2009
ARE LAWYERS ALLOWED TO CARE ABOUT FAIRNESS?
AN ESSAY
I like fairness. I always have. Even when I was a kid, I couldn't stand it when people got preferential treatment when it appeared to me they didn't deserve it. I didn't like it when other kids cheated at games, or when I saw that some kids' parents had more money than mine. "That's not fair," I complained. When I was young, I earnestly believed that everyone should have an equal chance to succeed at things. And I believed that success had something to do with merit. For me, fairness expressed whether a situation was fundamentally right or wrong. It was intuitive. I even thought that our government cared about fairness.
My understanding about fairness changed over time. I learned that fairness had two dimensions, one substantive, the other procedural. "Substantive" fairness referred to the intuitive judgment whether a situation was right or wrong. "Procedural" fairness referred to the technical circumstances that either gave or withheld an equal chance to achieve a particular result. For example, racial realities in America reflect "substantive unfairness" for black people because their economic social situation is largely worse than that for comparable white Americans. On the other hand, court rules and contract terms might reflect "procedural unfairness" because they tilt technical rules to favor one party over another in a dispute. Substantive fairness is basically a "justice" inquiry. Procedural fairness is more technical. But both imply a confrontation between opposing forces with "something at stake."
In law school, I cared about both substantive and procedural fairness. I used to complain about results in particular cases because they were "unfair" to one side or the other. This amused my professors. Slowly, I learned that while the law professes to supply "procedural fairness" to both sides in a legal dispute in an effort to assure "substantive fairness" (AKA "justice"), the reality is that fairness does not really matter. Procedure and form are more important than substance in the law. The side with greater resources and greater procedural tact will win. One motion beats another motion. A dismissal beats a complaint. A judgment beats a plea. Papers must be filed properly or they will be rejected, no matter how cogent their arguments. Sometimes these procedural results lead to "substantive fairness." But it is really irrelevant. Judges simply look to see whether the lawyers' behavior matches the rulebook. Legal officiating, then, is really just a technical exercise; it is not necessary that both sides have equal procedural opportunities. And it certainly is not necessary that the ultimate result be "substantively fair."
And how could it be? After all, fairness only enters the analysis when two sides confront one another. Fairness comes into play not just in the law, but also in fistfights, football games and poker tournaments. When two sides compete for a result under common rules, fairness rears its head. When something is at stake, fairness matters. Children scream "No fair" only after investing themselves in a game that offers some reward; without confrontation, fairness does not really matter. People want fairness when they strive to obtain a result that will favor them and disfavor someone else. They want to know that they had every opportunity to vindicate their desire to win. In legal terms, litigants want to know that they had every chance to advance their interests, or to protect them if they are threatened.
This creates a dilemma. After all, lawyers in our legal system--like rabid children vying for victory in a game--badly want particular results. They are not neutral guardians committed to abstract principles like "procedural fairness." Rather, they are biased advocates determined to win. In fact, they take an oath to "zealously" represent their clients' legal interests, and that means pulling out all the stops to prevail. This is problematic because fairness and bias do not go hand in hand. If fairness means giving the other side exactly the same opportunity to win as you, then fairness reduces your chances to win. As a biased advocate, you must increase your chances to win, not reduce them. In that sense, lawyering and fairness appear antithetical to one another.
Still, lawyers inevitably say that they just want "fairness" for their clients. But here they confuse their terms. Yes, they certainly want "substantive fairness," namely, a biased result that intuitively pleases the client. But they do not want "procedural fairness," namely, giving the other guy an equal chance to win. Additionally, lawyers misuse the word "fairness" all the time. They say they care about fairness, but they really mean "favorable results for me." If they win, they say the process has been "fair." If they lose, though, they say they were treated "unfairly." This has nothing to do with abstract fairness. This is mere bias and disappointment.
We should not be surprised that lawsuits are brutally acrimonious affairs because we follow the adversarial system in the United States. That means we basically allow two diametrically opposed, biased parties to battle it out to determine various property and liberty rights. One side gains; the other loses. It is always a zero-sum game. As such, advocacy is essential. The lawyers must go for the throat or their clients lose everything. Courts praise the adversarial system because they say it leads to greater "truth." After all, according to the apologists, the "truth" will inevitably come out as two sworn enemies struggle to gain an advantage over each other. And when money is at stake, they will stop at nothing to win. Truth, then, is the "collateral fallout" from biased adversary confrontations.
And here again arises the dilemma. How can fairness matter in bitter confrontations like this? Will either side in a lawsuit value fairness to the other when they are sworn to ruin each other? That is like asking NFL teams to ensure that their opponents get all the favorable flag calls they deserve. In other words, it is sheer fantasy. When two sides confront each other and stand to lose all if they do not win, fairness to the other guy is the last thing on their minds.
I mention all this because our legal system professes respect for fairness. Everyone in court says they are either "aggrieved" or "wrongly accused." They say they just want an opportunity to be heard in a fair forum. Yet during that opportunity to be heard, they want to treat the other side as unfairly as possible in order to win the fight. No one really cares about securing "ultimate fairness." Individual litigants--and their lawyers--just want biased results.
Judges should care about fairness. But as merely technical stewards committed to determining whether lawyers meet the standards set out in motion rulebooks, they have little power to reflect on power disparities between the parties--or unfairness in the rules themselves. Court rules and civil procedure protocols present fairness problems in their own right. Judges do not have the authority or discretion to deeply think about larger fairness issues. Their job is technical, not philosophical or ethical. Behavior either falls within the rule or without. Sometimes the result is fair, sometimes it isn't. Sometimes it's "fair" to bar an injured person from filing a lawsuit because he missed the date by one day. Sometimes it isn't. But from the judge's perspective, rules are rules. And that ends the judge's role.
This is why so many legal cases arouse disgust in neutral onlookers. From a detached perspective, it appears that fairness means nothing in the average lawsuit. Rather, it appears that mere compliance with rules and deadlines takes precedence over the question whether each side has a fair shot at a particular result. And lawyers do their best to belittle, degrade and discount everything their opponents say in court. This gives the impression that they would be just as satisfied if they won unfairly as if they won fairly--just so long as they win. Fairness seems the last thing on their minds. Indeed, they only mention "fairness" if they lose a point, in which case they say the result is "unfair."
In truth, we cannot blame lawyers for acting this way: They are biased advocates in an adversary system. They are trained to exploit rules in order to obtain private results, not to ensure that abstract fairness flows from every confrontation under the law. Lawyers are not philosophers or ethicists; they are employees hired to do a job. And employees are biased toward their employers because they receive pay to act only in their interest.
Bias and fairness are mutually exclusive. That is why I think it is extremely difficult--if not impossible--for our legal system to consistently deliver fair results. That is not to say that biased advocacy does not sometimes lead to abstract fairness. But that is a side effect at best, not an intentional result.
I like fairness. I always have. Even when I was a kid, I couldn't stand it when people got preferential treatment when it appeared to me they didn't deserve it. I didn't like it when other kids cheated at games, or when I saw that some kids' parents had more money than mine. "That's not fair," I complained. When I was young, I earnestly believed that everyone should have an equal chance to succeed at things. And I believed that success had something to do with merit. For me, fairness expressed whether a situation was fundamentally right or wrong. It was intuitive. I even thought that our government cared about fairness.
My understanding about fairness changed over time. I learned that fairness had two dimensions, one substantive, the other procedural. "Substantive" fairness referred to the intuitive judgment whether a situation was right or wrong. "Procedural" fairness referred to the technical circumstances that either gave or withheld an equal chance to achieve a particular result. For example, racial realities in America reflect "substantive unfairness" for black people because their economic social situation is largely worse than that for comparable white Americans. On the other hand, court rules and contract terms might reflect "procedural unfairness" because they tilt technical rules to favor one party over another in a dispute. Substantive fairness is basically a "justice" inquiry. Procedural fairness is more technical. But both imply a confrontation between opposing forces with "something at stake."
In law school, I cared about both substantive and procedural fairness. I used to complain about results in particular cases because they were "unfair" to one side or the other. This amused my professors. Slowly, I learned that while the law professes to supply "procedural fairness" to both sides in a legal dispute in an effort to assure "substantive fairness" (AKA "justice"), the reality is that fairness does not really matter. Procedure and form are more important than substance in the law. The side with greater resources and greater procedural tact will win. One motion beats another motion. A dismissal beats a complaint. A judgment beats a plea. Papers must be filed properly or they will be rejected, no matter how cogent their arguments. Sometimes these procedural results lead to "substantive fairness." But it is really irrelevant. Judges simply look to see whether the lawyers' behavior matches the rulebook. Legal officiating, then, is really just a technical exercise; it is not necessary that both sides have equal procedural opportunities. And it certainly is not necessary that the ultimate result be "substantively fair."
And how could it be? After all, fairness only enters the analysis when two sides confront one another. Fairness comes into play not just in the law, but also in fistfights, football games and poker tournaments. When two sides compete for a result under common rules, fairness rears its head. When something is at stake, fairness matters. Children scream "No fair" only after investing themselves in a game that offers some reward; without confrontation, fairness does not really matter. People want fairness when they strive to obtain a result that will favor them and disfavor someone else. They want to know that they had every opportunity to vindicate their desire to win. In legal terms, litigants want to know that they had every chance to advance their interests, or to protect them if they are threatened.
This creates a dilemma. After all, lawyers in our legal system--like rabid children vying for victory in a game--badly want particular results. They are not neutral guardians committed to abstract principles like "procedural fairness." Rather, they are biased advocates determined to win. In fact, they take an oath to "zealously" represent their clients' legal interests, and that means pulling out all the stops to prevail. This is problematic because fairness and bias do not go hand in hand. If fairness means giving the other side exactly the same opportunity to win as you, then fairness reduces your chances to win. As a biased advocate, you must increase your chances to win, not reduce them. In that sense, lawyering and fairness appear antithetical to one another.
Still, lawyers inevitably say that they just want "fairness" for their clients. But here they confuse their terms. Yes, they certainly want "substantive fairness," namely, a biased result that intuitively pleases the client. But they do not want "procedural fairness," namely, giving the other guy an equal chance to win. Additionally, lawyers misuse the word "fairness" all the time. They say they care about fairness, but they really mean "favorable results for me." If they win, they say the process has been "fair." If they lose, though, they say they were treated "unfairly." This has nothing to do with abstract fairness. This is mere bias and disappointment.
We should not be surprised that lawsuits are brutally acrimonious affairs because we follow the adversarial system in the United States. That means we basically allow two diametrically opposed, biased parties to battle it out to determine various property and liberty rights. One side gains; the other loses. It is always a zero-sum game. As such, advocacy is essential. The lawyers must go for the throat or their clients lose everything. Courts praise the adversarial system because they say it leads to greater "truth." After all, according to the apologists, the "truth" will inevitably come out as two sworn enemies struggle to gain an advantage over each other. And when money is at stake, they will stop at nothing to win. Truth, then, is the "collateral fallout" from biased adversary confrontations.
And here again arises the dilemma. How can fairness matter in bitter confrontations like this? Will either side in a lawsuit value fairness to the other when they are sworn to ruin each other? That is like asking NFL teams to ensure that their opponents get all the favorable flag calls they deserve. In other words, it is sheer fantasy. When two sides confront each other and stand to lose all if they do not win, fairness to the other guy is the last thing on their minds.
I mention all this because our legal system professes respect for fairness. Everyone in court says they are either "aggrieved" or "wrongly accused." They say they just want an opportunity to be heard in a fair forum. Yet during that opportunity to be heard, they want to treat the other side as unfairly as possible in order to win the fight. No one really cares about securing "ultimate fairness." Individual litigants--and their lawyers--just want biased results.
Judges should care about fairness. But as merely technical stewards committed to determining whether lawyers meet the standards set out in motion rulebooks, they have little power to reflect on power disparities between the parties--or unfairness in the rules themselves. Court rules and civil procedure protocols present fairness problems in their own right. Judges do not have the authority or discretion to deeply think about larger fairness issues. Their job is technical, not philosophical or ethical. Behavior either falls within the rule or without. Sometimes the result is fair, sometimes it isn't. Sometimes it's "fair" to bar an injured person from filing a lawsuit because he missed the date by one day. Sometimes it isn't. But from the judge's perspective, rules are rules. And that ends the judge's role.
This is why so many legal cases arouse disgust in neutral onlookers. From a detached perspective, it appears that fairness means nothing in the average lawsuit. Rather, it appears that mere compliance with rules and deadlines takes precedence over the question whether each side has a fair shot at a particular result. And lawyers do their best to belittle, degrade and discount everything their opponents say in court. This gives the impression that they would be just as satisfied if they won unfairly as if they won fairly--just so long as they win. Fairness seems the last thing on their minds. Indeed, they only mention "fairness" if they lose a point, in which case they say the result is "unfair."
In truth, we cannot blame lawyers for acting this way: They are biased advocates in an adversary system. They are trained to exploit rules in order to obtain private results, not to ensure that abstract fairness flows from every confrontation under the law. Lawyers are not philosophers or ethicists; they are employees hired to do a job. And employees are biased toward their employers because they receive pay to act only in their interest.
Bias and fairness are mutually exclusive. That is why I think it is extremely difficult--if not impossible--for our legal system to consistently deliver fair results. That is not to say that biased advocacy does not sometimes lead to abstract fairness. But that is a side effect at best, not an intentional result.
Wednesday, October 7, 2009
A THERAPEUTIC POST, AND A WORD ABOUT "REASONABLENESS"
A REFLECTION
I'm really in no emotional condition to write. This is not a confession; I just want to say how I feel now so I can remember it later. It helps me when I express what's going on inside my head. During easier times, I can write almost endlessly because I can focus. These days, however, I can barely concentrate. I mentioned last week that I have been going through hard times because my life partner began suffering from a mental illness. It got so bad that he had to go to the hospital to "rest." I have no idea how long he will stay there.
I have never endured a situation like this. We have lived together for nearly ten years; it is jarring to know he is no longer in the house. Worse, I am tormented by the thought that he is not the person I knew. When I speak to him on the phone, it is clear that his illness has overtaken his mind. It breaks my heart and drains my own energy. In addition, I have no idea what the future holds. It is mentally taxing to deal with uncertainty about important things. I am tired all day long. My mind cannot follow anything for more than a few minutes. I am not doing well.
All this trouble started more than two years ago. My partner's mental illness represents the culmination of pressures that began when he suffered a freak burn accident in 2007. I typically do not talk about personal things like this, but now I see no reason to hold back. It helps me sort out my own difficulties when I put them in a chronology. I still cling to logic when it comes to understanding historical events that have an effect on me. I have a good memory and I put it to use.
Let's start with the injury. My partner suffered a devastating burn on his right arm in a health club steam room. No one really knows how it happened; he went into shock almost immediately after it happened. He always tells the same story: He was walking into the steam room when a burst of steam came from his right side, scalding him. He immediately left the steam room, where an employee saw him and remarked: "Oh my God, your arm!" Soon thereafter, he fainted. An ambulance took him to the emergency room. A few hours later, Chicago's best burn trauma unit admitted him for treatment. To make a long story short, he stayed in the hospital for 35 days, endured several skin graft surgeries, suffered two heart attacks and an induced coma.
Upon his release, he was essentially a broken man. His right arm was permanently disfigured. He could still use it for most things, but he did not dare show it in public. To save his arm, doctors had to shear skin off his legs to patch onto the wound. He bears those scars, too. Within a few months, he began slipping into deep depression. He did not get out of bed all day. And he continued to suffer pain in his arm. He took addictive opiate pain-killers to manage it.
All the while, I cared for him. I did the shopping. I did the errands. I took him to appointments and made phone calls. I managed the medications and dealt with the doctors. I provided comfort and sat by the bed when I had to. I tried to work for the first few months after he left the hospital. But he got so lonely and depressed while I was away that I genuinely feared for his life. So I decided to suspend my career to care for him. During that I time, I started writing this blog. Yet during the same time, I have had the much greater responsibility to care for him. In consequence, I, too, have scarcely known rest since 2007.
We tried to sue the health club that caused the injury. But whenever my partner talked about what happened, he fell deeper into depression. Lawyers think it's easy for injured people to relive the worst day in their lives over and over again; it isn't. Worse, we discovered that the health club did not maintain liability insurance on its land, so it would be extremely difficult to recover any money on his behalf without a knock-down, drag-out fight that likely would have driven him over the emotional edge. Our lawyers refused to continue representing us when they found the club had no insurance. Legally and morally, our lawyers held the high ground: No one deserves to enter a business establishment and walk out with a life-threatening burn injury. Numerous legal theories supported our position, from negligence to strict products liability. From a theoretical perspective, we should have won some compensation for him.
But we didn't. No matter how many legal advantages we had, the lawyers got cold feet as soon as they learned there was no insurance involved. Five other lawyers had the same reaction: "Oooh, no insurance! Sorry, I can't help you."
In personal injury cases, liability insurance companies ensure that defendants do not go bankrupt when accidents happen on their land. The insurance company pays for the defense and pays any judgments against the defendants. This protects the defendants' own assets from seizure. Insurance companies also speed things along relatively fast; and that makes everyone happy, including the injured person's lawyers. An insurance company will settle a case against its client quite readily if there are strong facts from which to imply negligence. The defendant just goes along with the program: After all, it is not his money at stake. By contrast, when a defendant does not have insurance, he will fight to the end because it is his money.
That was the situation we faced. And our lawyers bailed out the moment they discovered that they would have to fight for years for potentially no reward. Neither justice nor legal principle spurred them to action. Unless a case could quickly pay out, it was not worth taking. For these lawyers, cases were little more than investments. It did not matter that my partner suffered outrageous injustice due to the health club's negligence: There was not a quick, ready profit to be made on his case, so no lawyer pursued it. Ironically, the health club saved itself by acting irresponsibly: It did not have liability insurance.
Naturally, this result only deepened my resentment toward lawyers and their profession. It reaffirmed that justice does not motivate lawyers. Only potential profits interest them. If a case involves justice and profits, that will get them off their seats. But if it involves justice and no profit, forget it.
But I wonder what would have happened even if the case went forward. How could anyone put a dollar value on my partner's injury? How could money compensate him for the agony he suffered? How could any check restore his scorched arm, or make him whole from the misery and pain he endured in the hospital? I saw his pain up close and personal. I saw him scream at night. I saw him unconscious and hooked up to a ventilator. I saw him cry out in fear as they wheeled him off for yet another surgery. I saw him with a trach tube down his throat and unable to speak. I saw him sweat through his clothes and lie helpless in the bed with his bloody arm in a splint. I had to cut off his shirts with a knife and sponge him dry. I saw him fall into depression and now into mania. What money could make all this "disappear?" What does money have to do with all this?
All these experiences made me question the law. From the law's perspective, money "recompenses" negligently-caused injury. Yet I know from experience that money would have done nothing to recompense my partner's plight, nor would have made his life "all better." Worse, I saw that the law condescends when it comes to monetary awards for injury. Suppose, for instance, that a jury evaluated my partner's pain, suffering and emotional turmoil and concluded that the health club's negligence caused it. Let's say it awarded him $5,000,000. That's all well and good. But under a doctrine called "remittitur," the judge could say: "That's unreasonable. He's only getting $500,000."
Think about how insulting that is. It's one thing to put a dollar amount on physical suffering, disfigurement, permanent injury and even death. It's quite another to claim that one amount is "reasonable" over another. My experience with life-altering injuries convinced me that the law is stupid. After all, what does a judge know about what injured people really suffer? And how can he say with any authority what someone's pain is "worth," let alone whether the amount is "reasonable?"
This example illustrates my deep resentment toward all "objective standards" in the law. Judges always speak in "reasonable" terms: "Reasonable time," "reasonable care," "reasonable regard," "reasonable amount," "reasonable certainty." They think they refer to some magical standard when they use the word "reasonable." In fact, they refer only to their own, value-laden judgments concerning particular conduct in particular circumstances. Judges, after all, come from a distinct social class with distinct ideas about money, punctuality, relationships and "responsibility." They probably never suffered life-altering injuries. If they object to a monetary amount as "excessive" from their perspective, they call it "unreasonable." Yet who are they to quantify another human being's suffering?
Let a judge's wife suffer the same agony that my partner suffered. Then he can tell me what amount would "reasonably" compensate her for it.
I'm really in no emotional condition to write. This is not a confession; I just want to say how I feel now so I can remember it later. It helps me when I express what's going on inside my head. During easier times, I can write almost endlessly because I can focus. These days, however, I can barely concentrate. I mentioned last week that I have been going through hard times because my life partner began suffering from a mental illness. It got so bad that he had to go to the hospital to "rest." I have no idea how long he will stay there.
I have never endured a situation like this. We have lived together for nearly ten years; it is jarring to know he is no longer in the house. Worse, I am tormented by the thought that he is not the person I knew. When I speak to him on the phone, it is clear that his illness has overtaken his mind. It breaks my heart and drains my own energy. In addition, I have no idea what the future holds. It is mentally taxing to deal with uncertainty about important things. I am tired all day long. My mind cannot follow anything for more than a few minutes. I am not doing well.
All this trouble started more than two years ago. My partner's mental illness represents the culmination of pressures that began when he suffered a freak burn accident in 2007. I typically do not talk about personal things like this, but now I see no reason to hold back. It helps me sort out my own difficulties when I put them in a chronology. I still cling to logic when it comes to understanding historical events that have an effect on me. I have a good memory and I put it to use.
Let's start with the injury. My partner suffered a devastating burn on his right arm in a health club steam room. No one really knows how it happened; he went into shock almost immediately after it happened. He always tells the same story: He was walking into the steam room when a burst of steam came from his right side, scalding him. He immediately left the steam room, where an employee saw him and remarked: "Oh my God, your arm!" Soon thereafter, he fainted. An ambulance took him to the emergency room. A few hours later, Chicago's best burn trauma unit admitted him for treatment. To make a long story short, he stayed in the hospital for 35 days, endured several skin graft surgeries, suffered two heart attacks and an induced coma.
Upon his release, he was essentially a broken man. His right arm was permanently disfigured. He could still use it for most things, but he did not dare show it in public. To save his arm, doctors had to shear skin off his legs to patch onto the wound. He bears those scars, too. Within a few months, he began slipping into deep depression. He did not get out of bed all day. And he continued to suffer pain in his arm. He took addictive opiate pain-killers to manage it.
All the while, I cared for him. I did the shopping. I did the errands. I took him to appointments and made phone calls. I managed the medications and dealt with the doctors. I provided comfort and sat by the bed when I had to. I tried to work for the first few months after he left the hospital. But he got so lonely and depressed while I was away that I genuinely feared for his life. So I decided to suspend my career to care for him. During that I time, I started writing this blog. Yet during the same time, I have had the much greater responsibility to care for him. In consequence, I, too, have scarcely known rest since 2007.
We tried to sue the health club that caused the injury. But whenever my partner talked about what happened, he fell deeper into depression. Lawyers think it's easy for injured people to relive the worst day in their lives over and over again; it isn't. Worse, we discovered that the health club did not maintain liability insurance on its land, so it would be extremely difficult to recover any money on his behalf without a knock-down, drag-out fight that likely would have driven him over the emotional edge. Our lawyers refused to continue representing us when they found the club had no insurance. Legally and morally, our lawyers held the high ground: No one deserves to enter a business establishment and walk out with a life-threatening burn injury. Numerous legal theories supported our position, from negligence to strict products liability. From a theoretical perspective, we should have won some compensation for him.
But we didn't. No matter how many legal advantages we had, the lawyers got cold feet as soon as they learned there was no insurance involved. Five other lawyers had the same reaction: "Oooh, no insurance! Sorry, I can't help you."
In personal injury cases, liability insurance companies ensure that defendants do not go bankrupt when accidents happen on their land. The insurance company pays for the defense and pays any judgments against the defendants. This protects the defendants' own assets from seizure. Insurance companies also speed things along relatively fast; and that makes everyone happy, including the injured person's lawyers. An insurance company will settle a case against its client quite readily if there are strong facts from which to imply negligence. The defendant just goes along with the program: After all, it is not his money at stake. By contrast, when a defendant does not have insurance, he will fight to the end because it is his money.
That was the situation we faced. And our lawyers bailed out the moment they discovered that they would have to fight for years for potentially no reward. Neither justice nor legal principle spurred them to action. Unless a case could quickly pay out, it was not worth taking. For these lawyers, cases were little more than investments. It did not matter that my partner suffered outrageous injustice due to the health club's negligence: There was not a quick, ready profit to be made on his case, so no lawyer pursued it. Ironically, the health club saved itself by acting irresponsibly: It did not have liability insurance.
Naturally, this result only deepened my resentment toward lawyers and their profession. It reaffirmed that justice does not motivate lawyers. Only potential profits interest them. If a case involves justice and profits, that will get them off their seats. But if it involves justice and no profit, forget it.
But I wonder what would have happened even if the case went forward. How could anyone put a dollar value on my partner's injury? How could money compensate him for the agony he suffered? How could any check restore his scorched arm, or make him whole from the misery and pain he endured in the hospital? I saw his pain up close and personal. I saw him scream at night. I saw him unconscious and hooked up to a ventilator. I saw him cry out in fear as they wheeled him off for yet another surgery. I saw him with a trach tube down his throat and unable to speak. I saw him sweat through his clothes and lie helpless in the bed with his bloody arm in a splint. I had to cut off his shirts with a knife and sponge him dry. I saw him fall into depression and now into mania. What money could make all this "disappear?" What does money have to do with all this?
All these experiences made me question the law. From the law's perspective, money "recompenses" negligently-caused injury. Yet I know from experience that money would have done nothing to recompense my partner's plight, nor would have made his life "all better." Worse, I saw that the law condescends when it comes to monetary awards for injury. Suppose, for instance, that a jury evaluated my partner's pain, suffering and emotional turmoil and concluded that the health club's negligence caused it. Let's say it awarded him $5,000,000. That's all well and good. But under a doctrine called "remittitur," the judge could say: "That's unreasonable. He's only getting $500,000."
Think about how insulting that is. It's one thing to put a dollar amount on physical suffering, disfigurement, permanent injury and even death. It's quite another to claim that one amount is "reasonable" over another. My experience with life-altering injuries convinced me that the law is stupid. After all, what does a judge know about what injured people really suffer? And how can he say with any authority what someone's pain is "worth," let alone whether the amount is "reasonable?"
This example illustrates my deep resentment toward all "objective standards" in the law. Judges always speak in "reasonable" terms: "Reasonable time," "reasonable care," "reasonable regard," "reasonable amount," "reasonable certainty." They think they refer to some magical standard when they use the word "reasonable." In fact, they refer only to their own, value-laden judgments concerning particular conduct in particular circumstances. Judges, after all, come from a distinct social class with distinct ideas about money, punctuality, relationships and "responsibility." They probably never suffered life-altering injuries. If they object to a monetary amount as "excessive" from their perspective, they call it "unreasonable." Yet who are they to quantify another human being's suffering?
Let a judge's wife suffer the same agony that my partner suffered. Then he can tell me what amount would "reasonably" compensate her for it.
Monday, October 5, 2009
CONTRACTS ARE CONTRACTS, SUPREME COURT RULES
NEWS FLASH
WASHINGTON, D.C.--Reason, Commerce, Justice & Free Beer has just learned that the United States Supreme Court has ruled that "a contract is a contract" in the much-followed case Gaffaello Mutual Equity Partners LLP v. Marquez, No. 08-9851. Scholars and lawyers alike have reacted with surprise to the Court's decision. "We expected a narrower ruling," said Mr. Thomas J. Knickerbocker, Esq., partner at New York's Knickerbocker, Chance & Willoughby LLC, a prominent Wall Street law firm. "We thought the Court would be more straightforward. But it simply said 'a contract is a contract.' This is a complicated idea. It is hard for both lawyers and the public to understand."
Today's ruling has broad implications for the business community. It also represents a milestone in legal reasoning and rhetoric. The case arises from a dispute between a janitor, Mr. Rodolfo G. Marquez, of Grand Concourse, The Bronx, and Gaffaello Mutual Equity Partners, a large Wall Street investment house handling more than $45,000,000,000 in assets.
According to filings and the Court's decision, Mr. Marquez orally agreed to "use best efforts" to "satisfactorily" clean every toilet located at Gaffello's office building in downtown Manhattan. In return, an unnamed agent acting for the investment house promised to pay Mr. Marquez $40 per day "until told otherwise" and "subject to all reasonable alterations by promisor." The agent allegedly also told Mr. Marquez that he had "to supply his own materials" and he had to "wipe all shit and piss from all affected toilet facilities to the satisfaction of any Gaffaello director to the extent permitted by applicable law." Mr. Marquez allegedly acquiesced to Gaffaello's terms. He further acquiesced to Gaffaello's demand that he "waive all remedies, at law or equity, or at common justice, for any alleged breach of aforesaid agreement, be it oral or in writing."
Mr. Marquez immediately went to work. Both employees and officers found Mr. Marquez' work excellent. According to one Vice President in the Appropriations Department: "I've never seen a cleaner shitter. That muchacho sure knows what the fuck he's doing." Around the same time, an authorized Gaffaello budget deputy presented a written contract to Mr. Marquez. The written contract included all the terms to which he orally agreed, as well as a clause that imposed a duty on Mr. Marquez to "act in good faith in the performance hereof; but such duty shall not extend to promisor, Gaffaello Mutual Equity Partners LLP; and it is further agreed, covenanted and promised that promisee , Mr. Rodolfo G. Marquez, shall have no right of action, cause of action or any other legal, equitable, natural or other remedy, either now or hereafter, today or tomorrow--or forever--for promisor's wanton or negligent failure, refusal, or decision not to use good faith in the execution, performance, observation or fulfillment of the mutual covenants set forth in this, the Master Contract for the Performance of Toilet Cleaning Services, notwithstanding all oral assertions to the contrary hereof, so help him God."
Mr. Marquez signed the contract, even though he did not read English. According to a Gaffaello witness, he said: "I understand it."
For two months, Mr. Marquez dutifully upheld his end of the bargain. He cleaned 4000 toilets, scrubbed 50,000 square feet of tile bathroom flooring every night and purified 4000 toilet stalls. In the process, he overcame horrific sights and odors. He worked at least 12 hours each day. He received $31.02 for his first day's work less taxes, fees and Social Security contributions. Although he was not eligible for Gaffaello's health coverage plan, he nevertheless paid toward it because he could not understand his paycheck statement. Over the next week, Gaffaello began paying Mr. Marquez a dollar less each day. Beginning the second week, it began subtracting two dollars per day from his daily check. After reducing his daily wage to $3.29, Gaffaello stopped paying Mr. Marquez at all. Instead, it sent a junior supply clerk to inform him that "he would be paid later."
Trusting that Gaffaello would honor the contract they signed, Mr. Marquez continued working. Eventually, however, Mr. Marquez gave up. He allegedly told a Gaffaello employee that he "could not continue working without pay" and that he "had a family to feed." In response, the employee said: "You can't leave. You promised to use best efforts and to act in good faith under this contract until told otherwise." Mr. Marquez said "they could sue him." With that, he walked off the job.
Gaffaello did sue him. Within two days, it served papers on Mr. Marquez and haled him into the United States District Court for the Southern District of New York for breach of contract. Although the trial judge wondered why the dispute fell under Federal jurisdiction, Gaffaello's legal team presented evidence to show that Gaffaello was a Delaware limited liability partnership, while Mr. Marquez was a New York resident. It also showed that the contract between Gaffaello and Mr. Marquez "represented a lucrative business relationship implicating more than $75,000 in janitorial services." These facts, according to established Federal law, warranted Federal court jurisdiction. Mr. Marquez, who could barely speak English, let alone understand an argument involving Federal diversity jurisdiction, said nothing in response.
Gaffaello demanded a fast track trial. The trial judge--A. Harry Peters--had no sympathy for a recent immigrant like Mr. Marquez because President George H.W. Bush appointed him to the bench. He quickly surveyed the evidence and found that Mr. Marquez breached the contract. In a detailed opinion, the trial judge wrote: "Mr. Marquez knowingly and voluntarily assumed the obligations set forth in the contract he signed with Gaffaello. It is not for courts to pass upon the providence or fairness of written agreements between mature business actors. Rather, we must merely apply relevant law to resolve any allegation that one party breached the terms upon which they mutually agreed. Under law, we assume all terms to be valid and voluntary. In this case, Mr. Marquez has no answer to contradict the assertion that he walked off a job he contractually agreed to perform. He says he left because Gaffaello did not pay him, but that is not technically true. Gaffaello said it would 'pay him later.' This does not mean it 'did not pay' him. Gaffaello never breached the contract. Only Mr. Marquez did. Furthermore, Mr. Marquez promised to use best efforts and to comply with the contract in good faith. By walking off the job without notice or cause, he violated both obligations. In sum, Mr. Marquez breached the contract. I order him to return to work immediately, or to pay Gaffaello the reasonable value of his lost services, in an amount not less than $75,000.01."
Mr. Marquez appealed the trial court's ruling to the United States Court of Appeals for the Second Circuit. His case attracted notice from the Puerto Rican Legal Defense Fund, and their lawyers hastened to his cause. They argued that the contract was invalid because it was "unconscionable" and because no contract may bind a man to work in the United States. The three-judge panel--including two Clinton appointees--agreed. They said: "We find the contract by and between Gaffaello Mutual Equity Partners LLP and Mr. Rodolfo G. Marquez unconscionable as a matter of law. We find every argument to the contrary unconvincing. No matter what anyone says about our country or its free enterprise spirit, we refuse to entertain appellees' contention that the United States Constitution guarantees the 'unlimited freedom to bargain for employment terms.' This agreement verifiably 'shocks the conscience.' We cannot permit the contract to stand, no matter how 'voluntary' it may have been at signing. Appellees' conduct in this case borders on the sadistic. Judgment reversed."
Judge Ferguson H. Klosterbach, George W. Bush's lone appointee on the appellate panel, dissented. He wrote: "I think the trial judge was right. A contract is a contract. Mr. Marquez breached it. He is also an immigrant."
Dissatisfied with the Second Circuit's reasoning, Gaffaello applied to the United States Supreme Court for certiorari. In its brief, Gaffaello phrased the case as follows: "This is a case about the freedom to contract. It is not about fairness. It is about a willful contract breacher who did not do what he promised to do." In response, Mr. Marquez' lawyers said: "This is not a case about the freedom to contract. This is a case about unfairness and injustice. This is a case about a powerful company forcing one-sided terms upon a powerless immigrant. If this Court has a shred of decency and compassion, it will affirm the judgment of the United States Court of Appeals for the Second Circuit."
Chief Justice John G. Roberts, Jr. delivered the Court's opinion to a packed house. In a calm, steady voice, he began: "Our free market economy values fairness. But it values contracts more. In our view, contracts are contracts. Promises are promises. When commercial actors make promises, we do not excuse them lightly for failing to adhere to their commitments. This case involves promises and contracts. No matter how 'unfair' or 'unjust' those promises may seem in hindsight, we refuse to second-guess reasonable commercial actors who voluntarily make commitments. Contrary to Respondents' contention, this Court has no power to rule on 'elementary justice.' This Court applies the law. And the law in this case has a simple answer: Contracts are contracts.
"Our common law values contracts. Commerce prospers when commercial men feel assured that others will fulfill their commitments. That is why courts in our system rarely allow litigants to escape voluntary contractual obligations. True, contractual obligations only arise to the extent that parties make them freely. But there is no evidence in this case that Mr. Marquez faced 'coercion' to bargain with Gaffaello. He agreed to act in good faith, to waive his remedies and to use 'best efforts' while cleaning every toilet at Gaffaello's downtown facility 'until told otherwise.' At the same time, Gaffaello freely and voluntarily agreed to pay Mr. Marquez $40 per day 'subject to all reasonable alterations.' Mr. Marquez says that Gaffaello did not pay him. But the record clearly shows that it did. The fact that Gaffaello slowly decreased Mr. Marquez' daily wage did not change the contract. In fact, Gaffaello had every right to make 'reasonable alterations' to Mr. Marquez' pay. Mr. Marquez acquiesced to this term when he signed the contract. And--unlike Mr. Marquez--Gaffaello had no obligation to perform the contract in good faith. If Gaffaello somehow acted in bad faith, that was a risk Mr. Marquez knowingly and voluntarily assumed when he signed the contract. It is not for us to question these private contractual relations.
"We hold as a matter of constitutional law that contracts are contracts. Neither the Judiciary nor the Legislature has power to retroactively invalidate private contractual terms concerning legal subject matter. We are neither philosophers nor moralists. We are legal technicians. We do not interfere with private bargains, nor do we save private individuals from their improvident business decisions. No matter how 'shocking' the terms may have been in Mr. Marquez' case, we are not fairness referees. We simply look to the contract and the circumstances to determine whether both parties freely and voluntarily assumed their duties. If we determine that they did, our inquiry ends. If we scrutinized every private bargain for terms we considered 'unfair' or 'oppressive,' we would undermine the spirit of private enterprise that drives our free market system. We are not paternalistic. We trust the market. We do not second-guess it.
"This is not new law. Our courts have held that 'contracts are contracts' for centuries. Even our English forebears so held. In the case Coxwell v. Bainbridge (King's Bench 1612), Lord Chief Justice Coke stated the basic principle that we continue to follow today: "Hath the yeoman signed the Pact of Free Wille as aforesaid? Say he the Parchmente be void for offending that Certaine Spiritte or Ghoste of Justice that doth dwell at the Hearte of all the dealings of Menne? What of it? This Courte judgeth not for Justice nor Rightte, but for Lawe. Promise a Manne he shall builde a Bridge o'er the Thames for a threepence in Two Days' Tyme, so he must, so long he have said so of Free Minde. I be of mind that pacta sunt servanda. It be of no Moment what the bound Manne saith. The Lawe doth presume a Manne do a Thinge with Free Minde. Comes now no Evidence or Witnesse thereagainst, it being a Cleare Thinge, et.c., what be left for a Court to say? Let Menne bargainne as they please. What they say be no Matter for the Lawe, but that the Lawe allow it.'
"We could not agree more. We find that Mr. Marquez knowingly and voluntarily assumed the obligations set forth in his contract with Gaffaello. We express no judgment on the 'fairness' or 'equity' of that contract. We refuse to entertain the Respondents' invitation to sit as a permanent referee for contractual fairness. Such a role would contravene our duty to apply the law and to defend private autonomy in a free market system. Judgment REVERSED. This case is REMANDED to the United States Court of Appeals for the Second Circuit with an order to issue judgment against Respondent consistent with this opinion.
"It is so ordered."
Justices Scalia, Kennedy, Thomas and Alito joined the Chief Justice's opinion. Justice John Paul Stevens wrote a dissent. In it, he blamed the majority for "enshrining unfairness" and "exulting the powerful over the powerless." He concluded as follows: "The Constitution imposes limits upon the freedom to contract when contract terms offend our most basic sense of justice."
In a separate concurrence, Justice Scalia responded to Justice Stevens' dissent: "Justice Stevens once again proves his unrivaled ability to put his head up his dumb wrinkled ass. L0s3r, pwned!!!!"
Reason, Commerce, Justice & Free Beer is pleased to see that both collegiality and prudence are alive and well at the Supreme Court as it begins its new session.
Friday, August 7, 2009
THE DISAGREEABLE ASSHOLES' LEAGUE FOR TOTAL STRESS, PROFESSIONAL SUCCESS AND, BY THE WAY, FUCK YOU, TOO
By : Ms. D. Samantha Crabtree-Farkingbeech, Esq., Partner, Cunting, Snidewell, Screech & Dourpott, LLP, a Fortune 250 Law Firm Specializing in Client Service to the Software Industry; J.D., Harvard Law School summa cum laude (1990); Author, “Work is the First Word in Work-Life Balance,” (an American Bar Association Publication)(2008); Voted Best Litigator, Atlanta, Georgia Bar Association; Married; Mother of two.
God fucking damn it. What the hell do you want? Can’t you see I’m in a hurry? I’ve got a meeting in five minutes. Do you think I have time to sit down and talk to you about this? Maybe you didn’t notice, but it is a weekday; I’ve got deadlines. If I don’t call Dick Henry back in five minutes we could lose four fucking million in fees. And I’ll be damned if I let that happen. Not on my watch. Shit, now my phone is ringing again. Who the fuck is it?
I didn’t make partner in this law firm being nice. If you want to succeed here, “being nice” is not an option. I didn’t bill 4100 hours last year and set a revenue record kissing ass or being polite to people. Sure, maybe a smile here and there for a judge or a client is OK. But once you start working cases, you’d better hang up your nice hat and start acting like a winner. Winners don’t ask; they tell. When opposing counsel asks for a delay because their witness is running late, you tell them: “Fuck no. We had an agreement. You signed it.” Then you make phone calls and yell at people for costing you time. Basically, you’ve got to put some gravel in your voice, break out your BlackBerry® and start telling some junior associate that they have their head up their ass because time is ticking.
Yeah, I’m stressed. Yeah, I take Tums. It’s stressful trying to win cases for software companies, especially when they have all kinds of dirty laundry to hide. Do you know how difficult it is to sift through 40 million pages looking for some damning admission some low-level programmer made in 1993? Do you know how difficult it is explaining to a judge how you’re going to catalogue 700,000 boxes of documents on some custom-made computer program? You spend more time defending your dumb-ass IT staff than talking about the case. At least you don’t have to talk about the law. The law doesn’t win cases. Management does. And management is stressful. Do you know what it’s like to take 230 phone calls every 16 hours? Do you know what it’s like trying to keep everyone’s name straight? Have you ever been so busy that you can’t even squeeze in time to take a shit? Welcome to my life.
But I don’t regret anything. I came a long way to get where I am now. I’m proud of myself. Not everyone can be a partner at this law firm. You need to take hits for the team in order to make it here. You need to handle stress every day. You need to juggle 14 different tasks at once, yet somehow still bring in new clients, win existing cases and cover up negative information about old clients. That takes serious talent. It’s not easy to remember every single fax and email you sent in May 2007. They all sort of blend together after a while. But that’s what separates the women from the girls: Women remember every piece of paper that ever crossed their desks; girls forget phone conversations two minutes after they end. You can’t pull anything over my eyes. If I see something once, I remember it. If I hear you say something, don’t try to lie to me later, because I remember everything. I can even remember if you used the word “of” in 2004. That’s what makes me a killer lawyer: I remember what people say. Yeah, it’s stressful. But it sure pays off.
I started the Disagreeable Assholes’ League for Total Stress, Professional Success and, By the Way, Fuck You Too in 2005. I started the party because successful people like me need a real political voice. We don’t have time to sit around and debate political topics. We have copies to make, depositions to take and phone calls to return. We don’t even have time to screw our husbands on Sunday afternoons, let alone talk about health care, environmental protection or voting rights. Yet we deserve to be heard because we are successful Americans. Just because we spend every day working our asses off at high-end law firms doesn’t mean we don’t exist.
We exist, all right. And we’re damn important, too. We believe it’s time for people to know just how important Disagreeable Assholes are in this country. We believe all Americans should know what it takes to achieve professional success. We believe all Americans should understand what it means to be a winning professional. We are determined to dispel the myth of slacker success. No one gets anywhere in this country being nice. No one sets billing records or revenue standards with smiles and apologies. In this law firm—and in every other respectable business enterprise—only winners survive. Winners are not just assholes—they are disagreeable assholes. Anyone can be an asshole. But not everyone can be sufficiently disagreeable to achieve professional success. Assholes complain, whine and make things difficult on everyone around them. Disagreeable assholes do all that plus cite legal rules, refuse to show mercy, reject appeals and never experience joy. Most importantly, disagreeable assholes enjoy arguing, fighting, resisting and contesting anyone who stands in their way.
For us, being “disagreeable” is a way of life. We do not feel good about anything. We fight everybody and everything, all the time. We don’t stop until we’ve been paid. We are always anxious, stressed, angry, pissy, vengeful, uncompromising, unforgiving, devious, nefarious and mean. We do not agree on anything; that’s what makes us disagreeable. We disagree on where to go to lunch, what to do on Thanksgiving and how best to copy 40,000 documents. We disagree on how much to leave as a tip, how best to get to the airport and how to greet colleagues. And we especially disagree with any suggestions made by our opponents. If our opponents suggest holding a meeting in the Sheraton because it is close to our offices, we will disagree and insist that we hold the meeting somewhere further away. If our opponents suggest that we split phone costs on a case, we will disagree and threaten to obtain a court order imposing full liability on them. We disagree for disagreement’s sake. In this business, being an asshole is not enough; one must also be disagreeable.
People say that “disagreeable” is a negative word. They even say that “assholes” are not pleasant. We disagree with both assessments. In our view, our critics fail to understand that professional success depends on assholes; more particularly, it depends on disagreeable assholes. No one achieves fantastic financial success in the United States without bitterly fighting over everything. Professional success means merciless combat every day until either financial victory or heart failure. In professional life, competition abounds. Everyone is out to take your money. Everyone plots ways to steal your business. Everyone is conspiring, eavesdropping and conniving—even supposed friends. Cowards and nice folks don’t stand a chance. Cowards and nice folks let opponents walk all over them. But disagreeable assholes sniff out treachery at every turn. They suspect everybody and everything. They scream, yell and threaten until the problem subsides. We are problem solvers.
We say to our critics: How is that negative? Wouldn’t you protect your business with all your strength? Our critics can complain all they want that we are “hard to get along with” because we are “disagreeable assholes.” But frankly we don’t give a shit. We’re the top revenue producers. We’re the partners. We won. They didn’t. They can go ahead and be nice. Who’s living in the villa, and who’s renting the crappy studio in Queens? Let our critics complain. In our book, being labeled a disagreeable asshole is a compliment, not a pejorative.
Our critics also say that stress is bad. They say that professional success is important, but not when it imposes excessive stress. We disagree. Disagreeable assholes like us know that stress is a badge of honor. We work for a living. We don’t screw around or wait for 5 o’clock. No, we stay in the office all night and beyond. We sacrifice everything to win, even our health. We don’t worry about the husband and kids. They can take care of themselves. When it comes to professional success, winning is more important than family and health. True, winning is difficult. Competing for victory raises emotions and causes anxiety. But so what? To be a winner you need to compete like a winner. That means relishing stress, not complaining about it. We have high blood pressure. We get ulcers. We sigh all the time. We shout. We snap at people. We throw things. We castigate and insult. We stamp our feet and tremble. We break out in sweats and guzzle coffee at midnight. We lose our hair at 30. We get hemorrhoids. We eat fast food. We worry constantly whether we’ll make deadlines. And we are fabulously successful.
This is just how we roll. It pays off, too. Winners don’t relax; they stress out. Stressing out wins cases and makes money. What is so bad about that? When all is said and done, people remember the disagreeable asshole who screamed and threw binders around at 4 AM before the big filing, not the chilled-out copy boy who went home at 4:45 PM the day before. Put simply, relaxation and tranquility do not yield professional success. In that light, we are proud to be stressed. I might have ulcers and hemorrhoids. You don’t; but who’s the partner with the $1,400,000 annual salary? I’d rather be a disagreeable, stressed-out asshole with a seven-figure salary than some relaxed nice guy who struggles to pay cell phone bills and travels by bus.
We are the Disagreeable Assholes’ League for Total Stress and Professional Success—and by the way, fuck you, too. We include that final phrase because we really don’t care what anyone says about us. We are in charge. We are more successful and richer than our critics. Our critics do not want to adopt our lifestyle, so they just resent us. We have a word for them: If you cared about your career, you would act like us. We didn’t tell you to be polite and friendly. You made a choice to be agreeable. We made a choice to be disagreeable. Our choice brought us stress and success. Your choice brought you relaxation and poverty. We employ you; you work for us. So you can criticize our lifestyle all you want. It won’t change who’s in charge. Disagreeable assholes rule this world. Nice guys like you just follow along and try not to get run over.
But you don’t have to stay polite and poor. If you really want to make a difference in this world, you can stop being nice and start acting like a disagreeable asshole. You can be a winner, too. Stop insisting on “work-life balance.” Start competing. Start mistrusting and exploiting. Start swearing and sighing. Get your calendar straight through 2011. Start yelling at people. Stop tolerating incompetence and tardiness. Make people afraid when you walk into a room. Get some stress in your life. You can do it. You need to stop thinking that stress is bad. Stress makes fortunes, and fortunes yield success. The choice is yours.
Monday, June 15, 2009
BUY GLASSES THAT WILL NEVER BREAK!
A PAID ADVERTISEMENT
Do you wear eyeglasses? If you do, you know how difficult it can be to keep them in good shape. We know what you go through. How often do you break them, scratch them or sit on them? It seems no matter how much you try to protect them, you wind up losing them or dropping them on the floor. This is no laughing matter—glasses are expensive. It hurts to break or lose them. Plus you can’t see clearly in the meantime as you struggle to find replacements.
But you can defend yourself with GlassShield® glasses! At GlassShield®, we not only employ a full-service staff of professional optometrists* to find your prescription strength, but we also maintain our own production facility* to match your prescription to one of our beautiful, custom-made* frames. That’s right. You didn’t imagine it; you heard it right here. We both find your prescription AND manufacture the frames—all under one roof*. With GlassShield®, you can “one-stop-shop” for your glasses. No waiting or additional consultations here*. We value your time. We care about your glasses.
BUT THAT’S NOT ALL! We understand that your glasses are an investment. That’s why we offer our patented NoBreak™ insurance coverage for FREE* on every frame we sell at our stores. When you buy GlassShield® glasses with NoBreak™ coverage, you can sleep soundly at night, because no matter what happens to your glasses, we will replace or repair them—ABSOLUTELY FREE!* No, you are not dreaming. You heard it: ABSOLUTELY FREE!* If you sit on your glasses, no problem; we’ll fix them. If your son flushes them down the toilet, no problem; we’ll replace them. It’s time to take some stress out of your life. We can’t solve all your problems. But with NoBreak™ coverage, at least you’ll take away your worries when it comes to your glasses.
Come down to any one of our hundreds of U.S. locations for a consultation TODAY. Or call our TOLL-FREE number to place an order NOW at 1-800-420-SEEE. That’s 1-800-420-SEEE. Start living again. Stop worrying about your glasses. Buy them once and start reading the newspaper again. Stop worrying about scratching them on the kitchen counter. You won’t have to pay for repairs EVER AGAIN!* So what are you waiting for? CALL NOW! Our knowledgeable, professionally-trained staff* is standing by.
* See below:
MANDATORY DISCLOSURE UNDER STATE LAW: Offer not valid in all States. See individual store for details. GlassShield® contracts with optometrists at individual store locations and does not vouch for their professional qualifications or skill. GlassShield® expressly disclaims any liability for malpractice or tortious conduct committed by any optometrist with whom it maintains a contractual relationship. GlassShield® rents space in which it employs glass frame manufacturing craftsmen on an individual basis. It does not own a factory or centralized manufacturing facility. GlassShield® does not manufacture frames to individual taste. It offers prefabricated frames on a selective basis pursuant to State and local retail regulations. GlassShield ® does not perform optometry services in the same facility as it manufactures frames. The words “all under one roof” are mere sales puffery and are not intended to reflect actual facts. Rather, GlassShield® employs contractors and rents space at several locations throughout the Nation in order to perform the services indicated in the above advertisement. Customers may wait or require additional consultations depending on demand, office circumstances, supply, and other factors. This advertisement creates no right, entitlement or privilege concerning wait time or service quality. GlassShield® reserves the right to alter service quality at will without notice. NoBreak™ insurance coverage is underwritten by the Fourth State Bank of Oklahoma, N.A., and is not free. Rather, the cost of the program is factored into the price of all GlassShield® optometry and frame sales and services. NoBreak™ insurance coverage excludes all accidental damage, loss, scratching or breakage. NoBreak™ insurance coverage excludes all intentional damage, loss, scratching or breakage. NoBreak™ insurance coverage excludes all damage, loss, scratching or breakage whatsoever, of any kind or nature, absolutely and for all time, any law or court order notwithstanding. Replacement and repair costs are borne exclusively by customer. GlassShield®’s call center sales staff are “professional” to the extent that such sales staff: (1) Speak English as a second language; (2) Can use a telephone with call waiting and hold technology; and (3) Received at least a 50% score on a 20-question quiz following a 1-hour GlassShield® informational seminar. GlassShield®’s call center sales staff are not employees of GlassShield® and in no way have authority to bargain for, bind or otherwise obligate GlassShield® to any contractual liability whatsoever.
SUPPLEMENTAL DISCLOSURE UNDER STATE LAW: By entering into a sales relationship with GlassShield®, all customers waive their right to a jury trial in case of any dispute concerning GlassShield®’s products or services. In case of any such dispute, GlassShield® shall appoint an arbitrator to resolve the issue from its Tulsa, Oklahoma sales office; and such arbitration shall take place in Tulsa, Oklahoma. All costs associated therewith shall be borne exclusively by the Customer. Any decision in favor of the Customer shall be appealable to GlassShield®’s Board of Directors. Any decision in favor of GlassShield® shall be final, binding and unappealable. By entering into a sales relationship with GlassShield®, Customer waives any right to claim that any GlassShield® contract is, was or shall be unconscionable or unenforceable. By entering into a sales relationship with GlassShield®, Customer has no procedural or substantive rights whatsoever, except the right to own, possess and take title to any goods purchased in-hand paid, liability wherefor (including liability for gross negligence, malice or defectiveness leading to catastrophic personal injury or death) is hereby expressly disclaimed.
Do you wear eyeglasses? If you do, you know how difficult it can be to keep them in good shape. We know what you go through. How often do you break them, scratch them or sit on them? It seems no matter how much you try to protect them, you wind up losing them or dropping them on the floor. This is no laughing matter—glasses are expensive. It hurts to break or lose them. Plus you can’t see clearly in the meantime as you struggle to find replacements.
But you can defend yourself with GlassShield® glasses! At GlassShield®, we not only employ a full-service staff of professional optometrists* to find your prescription strength, but we also maintain our own production facility* to match your prescription to one of our beautiful, custom-made* frames. That’s right. You didn’t imagine it; you heard it right here. We both find your prescription AND manufacture the frames—all under one roof*. With GlassShield®, you can “one-stop-shop” for your glasses. No waiting or additional consultations here*. We value your time. We care about your glasses.
BUT THAT’S NOT ALL! We understand that your glasses are an investment. That’s why we offer our patented NoBreak™ insurance coverage for FREE* on every frame we sell at our stores. When you buy GlassShield® glasses with NoBreak™ coverage, you can sleep soundly at night, because no matter what happens to your glasses, we will replace or repair them—ABSOLUTELY FREE!* No, you are not dreaming. You heard it: ABSOLUTELY FREE!* If you sit on your glasses, no problem; we’ll fix them. If your son flushes them down the toilet, no problem; we’ll replace them. It’s time to take some stress out of your life. We can’t solve all your problems. But with NoBreak™ coverage, at least you’ll take away your worries when it comes to your glasses.
Come down to any one of our hundreds of U.S. locations for a consultation TODAY. Or call our TOLL-FREE number to place an order NOW at 1-800-420-SEEE. That’s 1-800-420-SEEE. Start living again. Stop worrying about your glasses. Buy them once and start reading the newspaper again. Stop worrying about scratching them on the kitchen counter. You won’t have to pay for repairs EVER AGAIN!* So what are you waiting for? CALL NOW! Our knowledgeable, professionally-trained staff* is standing by.
* See below:
MANDATORY DISCLOSURE UNDER STATE LAW: Offer not valid in all States. See individual store for details. GlassShield® contracts with optometrists at individual store locations and does not vouch for their professional qualifications or skill. GlassShield® expressly disclaims any liability for malpractice or tortious conduct committed by any optometrist with whom it maintains a contractual relationship. GlassShield® rents space in which it employs glass frame manufacturing craftsmen on an individual basis. It does not own a factory or centralized manufacturing facility. GlassShield® does not manufacture frames to individual taste. It offers prefabricated frames on a selective basis pursuant to State and local retail regulations. GlassShield ® does not perform optometry services in the same facility as it manufactures frames. The words “all under one roof” are mere sales puffery and are not intended to reflect actual facts. Rather, GlassShield® employs contractors and rents space at several locations throughout the Nation in order to perform the services indicated in the above advertisement. Customers may wait or require additional consultations depending on demand, office circumstances, supply, and other factors. This advertisement creates no right, entitlement or privilege concerning wait time or service quality. GlassShield® reserves the right to alter service quality at will without notice. NoBreak™ insurance coverage is underwritten by the Fourth State Bank of Oklahoma, N.A., and is not free. Rather, the cost of the program is factored into the price of all GlassShield® optometry and frame sales and services. NoBreak™ insurance coverage excludes all accidental damage, loss, scratching or breakage. NoBreak™ insurance coverage excludes all intentional damage, loss, scratching or breakage. NoBreak™ insurance coverage excludes all damage, loss, scratching or breakage whatsoever, of any kind or nature, absolutely and for all time, any law or court order notwithstanding. Replacement and repair costs are borne exclusively by customer. GlassShield®’s call center sales staff are “professional” to the extent that such sales staff: (1) Speak English as a second language; (2) Can use a telephone with call waiting and hold technology; and (3) Received at least a 50% score on a 20-question quiz following a 1-hour GlassShield® informational seminar. GlassShield®’s call center sales staff are not employees of GlassShield® and in no way have authority to bargain for, bind or otherwise obligate GlassShield® to any contractual liability whatsoever.
SUPPLEMENTAL DISCLOSURE UNDER STATE LAW: By entering into a sales relationship with GlassShield®, all customers waive their right to a jury trial in case of any dispute concerning GlassShield®’s products or services. In case of any such dispute, GlassShield® shall appoint an arbitrator to resolve the issue from its Tulsa, Oklahoma sales office; and such arbitration shall take place in Tulsa, Oklahoma. All costs associated therewith shall be borne exclusively by the Customer. Any decision in favor of the Customer shall be appealable to GlassShield®’s Board of Directors. Any decision in favor of GlassShield® shall be final, binding and unappealable. By entering into a sales relationship with GlassShield®, Customer waives any right to claim that any GlassShield® contract is, was or shall be unconscionable or unenforceable. By entering into a sales relationship with GlassShield®, Customer has no procedural or substantive rights whatsoever, except the right to own, possess and take title to any goods purchased in-hand paid, liability wherefor (including liability for gross negligence, malice or defectiveness leading to catastrophic personal injury or death) is hereby expressly disclaimed.
Thursday, May 14, 2009
A PRIMER ON COLLECTION LAW, AND A WORD ON CIVIL PROCEDURE
Today I wrote a little self-help guide for a friend who faces a debt quandary. I post it below.
I often write about debt and the unfair relationship it represents. I wanted to share this overview to reinforce my thoughts about creditors, debtors, debt and the legal processes that operate in this area. In short, debt collection in America reveals the essential conflict between JUSTICE and LAW in our legal system. By examining the legal processes and power disparities that operate in these small debt cases, we see clearly that our system cares far more about vested contract rights than it cares about fair procedure. Civil litigation itself favors the powerful. Even in cases in which the weaker party has legal merit, litigation imposes such expense, confusion, technical intimidation and inconvenience that the weaker party rarely gets a chance to assert his arguments in a fair forum. Even if he does, he may not know the "proper form" in which to submit his arguments. And that can lose him the case on "formal" grounds, no matter how substantial his arguments.
We can bicker over who's to blame for the credit mess in this country. We can blame consumers for being improvident. We can blame creditors for putting too much faith in financially weak borrowers. We can blame mass media for implanting insidious impulses to buy things in weak minds, leading to mass economic stupidity. We can even blame the health care system and crushing education costs for creating a nation of perennial, powerless debtors. Depending on your political views, you will either blame the strong party or the weak party. No matter where you stand, however, these issues are real and pervasive. Debt is a fact of life in America. In my view, it is not a good fact. But we must live with it and consider its social impact on powerless people.
Our Framers said that debt was the cousin of slavery. The more I live with debt and witness its emasculating effects on people, the more I see the truth in that dictum.
Thanks for reading.
Oesterhoudt.
I would be glad to give you a few options, but since I do not know all the facts, please use your discretion in applying them. You said first that you "might owe this debt." That is extremely significant. If there is no valid debt, your original creditor cannot transfer it to a third-party (ie, a collection house). You said that the collection house sent you a letter and you didn't recognize the person who says you owe money. That is very common; debt is a "business." It is rare that original creditors ever bother to pursue older debts. Instead, they sell the RIGHT TO SEEK YOUR DEBT to a third-party collection house for, say, half the debt value. Then the collection house "steps into the creditor's shoes" and tries to throttle you for the full debt amount. In this way, the creditor wins because he gets "something" from what appeared to him an "uncollectible" debt, while the collection house stands a chance to make a profit by paying $400 for something from which he might get $1000. It's very nasty. And you're the "target" for the collection house's potential profit. If they don't wring you for more than they paid for your debt, you are a "loss" for them. Corporations don't like "losses."
Having said this, collection houses masquerade as law firms. In fact, they are little more than sweatshops where nonlawyers line up in cubicles, get on phones and harass people for money. You will never talk to a lawyer if you call a collection house. Instead, you will get an unreasonable clerk who will browbeat you into making admissions. Don't do it. The law can do nothing against you until the collection house PROVES you owe a valid, legal debt. They can only do this with genuine evidence. Obviously they have filed a lawsuit. They must have some evidence to substantiate their claims. DO NOT make their job easier by suggesting you "might owe" the debt or by answering other questions, such as "how much you make" "where you work," "whether you have any savings," etc. They are just trying to make you seal your own coffin, no matter how nice they might try to make it sound. In short, do not give them ANY information. If you ever do call them, get information FROM THEM, not the other way around. I would advise against an "informational" or "explanatory" letter. I think it's great that you care about honor and decency. Sadly, the law cares not for these things, nor do collection houses. In most cases, collection houses USE people's sense of honor against them by making them confess they owe far more than they do, or they owe it to someone (like the collection house) who does not have a right to it. This may seem hard to grasp, but being a "good person" will never help you in a legal matter. You will get trampled. That's why I don't practice anymore!
Still, the collection house has the burden here. They have to show that you: (1) owe a VALID debt; and (2) they properly obtained your debt from your original creditor. Additionally, you are right to be scared of defaults. Defaults represent a collection house's most significant legal weapon. This is perverse, because defaults mean that the opposing side in a legal dispute simply did not answer, allowing the claimant to win even if he is wrong. In our system, we think that fairness should prevail. Fairness in a legal case implies that BOTH SIDES have a full opportunity to explain themselves without regard to wealth, status or situation. Collection houses do not want to give you such a "fair opportunity." After all, fairness reduces their chances for a quick win, and time is money. They just file the lawsuit in some distant court, hope to scare you with legal-looking papers, then rely on your ignorance. They trust--and expect--that you will not answer the complaint. If you default, you LOSE your fair opportunity to contest their evidence. That totally undermines our justice system. But again, our system has less to do with justice than power, and collection houses are more powerful than working individuals like you.
Even against this unfair background, you have options. But you must understand that a lawsuit has been filed. Informal answers will not suffice to protect your rights. To legally answer a complaint, you must APPEAR IN THE COURT WHERE THE COMPLAINT WAS FILED. That is the only way to stop the default clock. In routine collection actions like this, debtors almost never appear. Nonetheless, look to see WHERE they filed the lawsuit. Before you are liable for any debt, a State court must have JURISDICTION over your person. If the collection house filed against you in Maryland, but you live in Massachusetts, a default judgment in Maryland will not affect you at all. And under the Constitution, Massachusetts courts would not be bound to enforce it by garnishment. Of course, if you had some contact with Maryland (ie, you did business there or something) you might be liable. But in most cases--especially collection cases--collection houses file lawsuits in the most obscure places, often in States that have no jurisdiction over the debtor. They simply trust the debtor's ignorance to win by default or "fright." They also minimize the chance that the debtor will appear in court against them because it is well-nigh impossible for a wage-earner in California to appear in a Maine court. This increases their chances for a default win.
So my first option is: Check the court in which the suit has been filed. If it is in Hawaii or something, you can be assured that you will never be garnished in Massachusetts. They can get all the defaults they want against you in Hawaii, but you can block them by showing up in a Massachusetts court and saying: "I have no contact to Hawaii." In this sense, the law favors you.
If the court is local, you must either: (1) Appear in court to answer the complaint; or (2) Settle out of court by private contract with the collection house. Now, I doubt you have the time or energy to litigate this case. But if you truly believe that the amount is wrong or that you do not owe the money at all, it might be worth submitting an answer with all the legal formalities. If you do, the collection house might just give up. They do not like wasting time on individual cases because that would hurt their margins. Before you do this, however, I encourage you to call the collection house to ask for some very basic information. Ask them FROM WHOM they bought the debt. Also ask them for any documents they have that provide evidence that you owe a debt. With that information, you can intelligently answer them in court with facts relevant to the legal standard.
If all this fails, and it appears that you do owe money, you can only avoid default and garnishment by bargaining with the collection house. This is unappetizing, but remember that the collection house has THOUSANDS of files like yours. They are trying to squeeze SOMETHING out of each, even if not the full amount they have a right to demand. If the face value of all their files is $15,000,000, but they only paid $5,000,000 for them, they still win if they squeeze just $6,000,000 from everyone. They want to resolve cases fast, and if it looks like you don't have the resources to pay the amount, they will settle for far less than the amount to which they are entitled. This is not "kindness" or "generosity." It is merely an acknowledgment that you do not have the financial capacity to give them all they want. That said, do not volunteer any specific information about your bank accounts, your identification numbers, your savings, any sources of income or your employer. Do not even mention your wife or any other person who lives with you. Just say you are broke and there is simply no way you could pay the full amount. Offer them something. If they take it, the original debt EVAPORATES (it's called "Discharge" in legal jingo). Just make sure you get it IN WRITING that your new payment arrangement discharges the old debt and fully resolves the matter.
This is probably the most practical option if you actually DO owe money. It keeps you out of court, and it saves you paying the full amount. You might even convince them to take pennies on each dollar owed. Plus it gets rid of the case for good. Again, you must insist on a WRITING that says your compromise payment "discharges" the old debt, and that the collection house promises to dismiss the lawsuit. If they don't provide these things, you could pay the compromise AND STILL face full liability for the debt! You definitely don't want that.
Well, sorry to have gone on for so long, but I wanted to give you a full overview. This whole area of law bothers me on a fundamental level. I have dealt with creditors myself over the years, and I can't tell you how weak and insignificant it made me feel. Debt really represents a form of tyranny in this country. Creditors enjoy so many advantages over debtors that it really mocks the "fairness principle" that people naively ascribe to the law. Yet that is the central irony I discovered in all this. If the law FAVORS the creditor, what does that say about the law? It really doesn't care about "little people" at all.
I wish it were not naive to think that the law stands for justice, honor and good. But the longer you live, the more you find that it is naive to believe it does.
I often write about debt and the unfair relationship it represents. I wanted to share this overview to reinforce my thoughts about creditors, debtors, debt and the legal processes that operate in this area. In short, debt collection in America reveals the essential conflict between JUSTICE and LAW in our legal system. By examining the legal processes and power disparities that operate in these small debt cases, we see clearly that our system cares far more about vested contract rights than it cares about fair procedure. Civil litigation itself favors the powerful. Even in cases in which the weaker party has legal merit, litigation imposes such expense, confusion, technical intimidation and inconvenience that the weaker party rarely gets a chance to assert his arguments in a fair forum. Even if he does, he may not know the "proper form" in which to submit his arguments. And that can lose him the case on "formal" grounds, no matter how substantial his arguments.
We can bicker over who's to blame for the credit mess in this country. We can blame consumers for being improvident. We can blame creditors for putting too much faith in financially weak borrowers. We can blame mass media for implanting insidious impulses to buy things in weak minds, leading to mass economic stupidity. We can even blame the health care system and crushing education costs for creating a nation of perennial, powerless debtors. Depending on your political views, you will either blame the strong party or the weak party. No matter where you stand, however, these issues are real and pervasive. Debt is a fact of life in America. In my view, it is not a good fact. But we must live with it and consider its social impact on powerless people.
Our Framers said that debt was the cousin of slavery. The more I live with debt and witness its emasculating effects on people, the more I see the truth in that dictum.
Thanks for reading.
Oesterhoudt.
I would be glad to give you a few options, but since I do not know all the facts, please use your discretion in applying them. You said first that you "might owe this debt." That is extremely significant. If there is no valid debt, your original creditor cannot transfer it to a third-party (ie, a collection house). You said that the collection house sent you a letter and you didn't recognize the person who says you owe money. That is very common; debt is a "business." It is rare that original creditors ever bother to pursue older debts. Instead, they sell the RIGHT TO SEEK YOUR DEBT to a third-party collection house for, say, half the debt value. Then the collection house "steps into the creditor's shoes" and tries to throttle you for the full debt amount. In this way, the creditor wins because he gets "something" from what appeared to him an "uncollectible" debt, while the collection house stands a chance to make a profit by paying $400 for something from which he might get $1000. It's very nasty. And you're the "target" for the collection house's potential profit. If they don't wring you for more than they paid for your debt, you are a "loss" for them. Corporations don't like "losses."
Having said this, collection houses masquerade as law firms. In fact, they are little more than sweatshops where nonlawyers line up in cubicles, get on phones and harass people for money. You will never talk to a lawyer if you call a collection house. Instead, you will get an unreasonable clerk who will browbeat you into making admissions. Don't do it. The law can do nothing against you until the collection house PROVES you owe a valid, legal debt. They can only do this with genuine evidence. Obviously they have filed a lawsuit. They must have some evidence to substantiate their claims. DO NOT make their job easier by suggesting you "might owe" the debt or by answering other questions, such as "how much you make" "where you work," "whether you have any savings," etc. They are just trying to make you seal your own coffin, no matter how nice they might try to make it sound. In short, do not give them ANY information. If you ever do call them, get information FROM THEM, not the other way around. I would advise against an "informational" or "explanatory" letter. I think it's great that you care about honor and decency. Sadly, the law cares not for these things, nor do collection houses. In most cases, collection houses USE people's sense of honor against them by making them confess they owe far more than they do, or they owe it to someone (like the collection house) who does not have a right to it. This may seem hard to grasp, but being a "good person" will never help you in a legal matter. You will get trampled. That's why I don't practice anymore!
Still, the collection house has the burden here. They have to show that you: (1) owe a VALID debt; and (2) they properly obtained your debt from your original creditor. Additionally, you are right to be scared of defaults. Defaults represent a collection house's most significant legal weapon. This is perverse, because defaults mean that the opposing side in a legal dispute simply did not answer, allowing the claimant to win even if he is wrong. In our system, we think that fairness should prevail. Fairness in a legal case implies that BOTH SIDES have a full opportunity to explain themselves without regard to wealth, status or situation. Collection houses do not want to give you such a "fair opportunity." After all, fairness reduces their chances for a quick win, and time is money. They just file the lawsuit in some distant court, hope to scare you with legal-looking papers, then rely on your ignorance. They trust--and expect--that you will not answer the complaint. If you default, you LOSE your fair opportunity to contest their evidence. That totally undermines our justice system. But again, our system has less to do with justice than power, and collection houses are more powerful than working individuals like you.
Even against this unfair background, you have options. But you must understand that a lawsuit has been filed. Informal answers will not suffice to protect your rights. To legally answer a complaint, you must APPEAR IN THE COURT WHERE THE COMPLAINT WAS FILED. That is the only way to stop the default clock. In routine collection actions like this, debtors almost never appear. Nonetheless, look to see WHERE they filed the lawsuit. Before you are liable for any debt, a State court must have JURISDICTION over your person. If the collection house filed against you in Maryland, but you live in Massachusetts, a default judgment in Maryland will not affect you at all. And under the Constitution, Massachusetts courts would not be bound to enforce it by garnishment. Of course, if you had some contact with Maryland (ie, you did business there or something) you might be liable. But in most cases--especially collection cases--collection houses file lawsuits in the most obscure places, often in States that have no jurisdiction over the debtor. They simply trust the debtor's ignorance to win by default or "fright." They also minimize the chance that the debtor will appear in court against them because it is well-nigh impossible for a wage-earner in California to appear in a Maine court. This increases their chances for a default win.
So my first option is: Check the court in which the suit has been filed. If it is in Hawaii or something, you can be assured that you will never be garnished in Massachusetts. They can get all the defaults they want against you in Hawaii, but you can block them by showing up in a Massachusetts court and saying: "I have no contact to Hawaii." In this sense, the law favors you.
If the court is local, you must either: (1) Appear in court to answer the complaint; or (2) Settle out of court by private contract with the collection house. Now, I doubt you have the time or energy to litigate this case. But if you truly believe that the amount is wrong or that you do not owe the money at all, it might be worth submitting an answer with all the legal formalities. If you do, the collection house might just give up. They do not like wasting time on individual cases because that would hurt their margins. Before you do this, however, I encourage you to call the collection house to ask for some very basic information. Ask them FROM WHOM they bought the debt. Also ask them for any documents they have that provide evidence that you owe a debt. With that information, you can intelligently answer them in court with facts relevant to the legal standard.
If all this fails, and it appears that you do owe money, you can only avoid default and garnishment by bargaining with the collection house. This is unappetizing, but remember that the collection house has THOUSANDS of files like yours. They are trying to squeeze SOMETHING out of each, even if not the full amount they have a right to demand. If the face value of all their files is $15,000,000, but they only paid $5,000,000 for them, they still win if they squeeze just $6,000,000 from everyone. They want to resolve cases fast, and if it looks like you don't have the resources to pay the amount, they will settle for far less than the amount to which they are entitled. This is not "kindness" or "generosity." It is merely an acknowledgment that you do not have the financial capacity to give them all they want. That said, do not volunteer any specific information about your bank accounts, your identification numbers, your savings, any sources of income or your employer. Do not even mention your wife or any other person who lives with you. Just say you are broke and there is simply no way you could pay the full amount. Offer them something. If they take it, the original debt EVAPORATES (it's called "Discharge" in legal jingo). Just make sure you get it IN WRITING that your new payment arrangement discharges the old debt and fully resolves the matter.
This is probably the most practical option if you actually DO owe money. It keeps you out of court, and it saves you paying the full amount. You might even convince them to take pennies on each dollar owed. Plus it gets rid of the case for good. Again, you must insist on a WRITING that says your compromise payment "discharges" the old debt, and that the collection house promises to dismiss the lawsuit. If they don't provide these things, you could pay the compromise AND STILL face full liability for the debt! You definitely don't want that.
Well, sorry to have gone on for so long, but I wanted to give you a full overview. This whole area of law bothers me on a fundamental level. I have dealt with creditors myself over the years, and I can't tell you how weak and insignificant it made me feel. Debt really represents a form of tyranny in this country. Creditors enjoy so many advantages over debtors that it really mocks the "fairness principle" that people naively ascribe to the law. Yet that is the central irony I discovered in all this. If the law FAVORS the creditor, what does that say about the law? It really doesn't care about "little people" at all.
I wish it were not naive to think that the law stands for justice, honor and good. But the longer you live, the more you find that it is naive to believe it does.
Friday, March 20, 2009
STATEMENT ON CHARACTER & FITNESS FROM THE BOARD OF BAR EXAMINERS
By : E. Pearson Firmingham, Esq., Chairman, Committee on Character & Fitness, New York State Board of Bar Examiners
Practicing law requires impeccable moral fitness. Although legal doctrine may require intellectual exertion and reasoning skill, legal practice requires an even temperament, good character, decency, propriety and appropriate living. Many applicants to the Bar believe that their academic achievements in law school demonstrate their fitness to practice law in our State. They are wrong. Our State does not condition law practice on intelligence alone; rather, it also conditions law practice on being a respectable person. This requirement perplexes many young applicants. For that reason, today we present a primer to guide hopeful applicants as they navigate their way through the bar application requirements.
In New York, lawyers must be both smart and decent. Anyone can pass law school tests and write essays. Being smart is the easy part. But not everyone can be decent. As Bar Examiners, we have a duty to the People of the State of New York to ensure that only the brightest and most moral men and women represent them in legal matters. We do not want our citizens to fall victim to intelligent—but morally bankrupt—attorneys. If we had to choose between a smart lawyer and a decent lawyer, we would choose the decent one every time.
Still, we recognize that New York lawyers must possess some basic intellectual skill. To that end, our Bar Examination tests an applicant’s rudimentary legal knowledge. Our examinations determine whether an applicant knows the elements of a contract, whether res judicata applies to a subsequently-filed lawsuit and whether the parol evidence rule bars contemporaneous oral statements during a contract dispute. Additionally, our examinations test an applicant’s ability to spot key words in page-long multiple-choice questions that enable him or her to correctly—and instinctively—mark the answer in 1.8 minutes or less. Our examinations demonstrate an applicant’s legal intelligence. Applicants should study hard to show their intelligence. We are confident that successful applicants possess the intelligence to skillfully represent their clients in any legal matter.
But intelligence and legal knowledge mean nothing without good character. An applicant may answer every question correctly on the Bar Examination, but if he is a bad person, he will not receive admission to the Bar. To avoid unnecessary exertion, we do not allow applicants to demonstrate their intelligence to us until they have demonstrated their character. Because character is more important than intelligence, we must certify an applicant’s character before allowing him or her to sit for the Bar Examination.
One cannot study how to be a good person. One either lives correctly or one does not. Our Bar Examiners determine whether an applicant has decent character. They know whether an applicant is fit to practice law in our State. Yet many applicants do not know how to demonstrate their good character. They know how to study evidence exceptions and civil procedure rules, but they do not know how to prove that they are decent people. In New York, we want our lawyers to be moral, decent, upstanding, forthright, honest and loyal. We believe our young applicants should know how to demonstrate these qualities to us. Below, we enumerate qualities that demonstrate the “character and fitness” necessary to practice law. We also discuss why these qualities matter in legal practice.
Good lawyers are honest. Our Bar Examiners will look to see that an applicant has lived his or her life with proper regard for truth in his written and oral representations. To that extent, we want to see lawyers who have lied on their resumes, lied to their employers and deceived their creditors. We want to see lawyers who have committed criminal fraud and stolen from their friends. In short, we want to see applicants who know how to bend the truth in every situation. A good lawyer respects the truth. That means the ability to convincingly lie, misrepresent, mislead, distort and deceive.
On the other hand, we do not look with favor upon applicants who “never tell lies” or who maintain a principled devotion to the truth in every situation. In our State, lawyers must be flexible in client service. No one wins when everyone tells the truth. In fact, people do not expect lawyers to tell the truth. Employers, too, do not want the truth every time. They want to hear about successes, and great success is rarely possible through truth alone. Additionally, no one even makes it into law school without having lied a few times along life’s way. To that extent, our Examiners carefully screen out applicants who demonstrate an unhealthy devotion to absolute honesty.
Good lawyers are responsible. Our Bar Examiners scrutinize an applicant’s personal and financial history to determine whether the applicant respects his or her obligations. We also look to see whether the applicant lives a decent, conventional lifestyle that inspires trust. Good applicants respect those to whom they owe obligations. We especially prize applicants who have lived at more than 35 addresses over the past 10 years. We also prize applicants with poor credit scores and numerous outstanding debts. Reproductive activity also indicates responsibility. We positively regard Applicants who do not practice birth control. We especially prize unwed fathers who neglect their child support obligations. We favorably review applicants who quit jobs without notice, leaving their employers to scramble for replacements. We also appreciate individuals who rack up substantial credit card debt with several accounts in collection houses. We accord respect to applicants who receive invoices and never pay them. These applicants demonstrate proper regard for responsible living. By accumulating obligations and skillfully living their lives to avoid them, they show their dedication to responsibility as a lifestyle. By certifying our applicants as “responsible people,” we ensure that our future lawyers will do the right thing when representing clients.
Good lawyers do not break the law. Lawyers have a public duty to enforce the law by example. They also must recognize that the law holds them to a higher standard than laymen. To whom much is given, much is expected. In order to support these ideals, applicants to the Bar in this State must demonstrate proper regard for legal authority and the moral rules that sustain our society. In that light, we favorably regard applicants with substantial prison history for violent crimes and sexual predation. Lawyers with firsthand experience in the criminal justice system will better represent clients in similar positions. Additionally, we look to see whether applicants get into brawls, fights or beat their spouses. Violent, abrasive, contentious and strident personalities befit the legal profession. In the law, clients seek favorable results through adversary justice. Applicants with a history of violence, discord and pugnacity will best serve clients. Our committee accords great respect to applicants with lengthy criminal records. Although applicants with convictions for violent crime tend to be more successful than applicants convicted for nonviolent crime, any crime is better than none. Additionally, conviction for nonviolent crimes such as fraud, theft, burglary, money laundering or fortune telling serve as probative evidence that the applicant is fit in other character areas, such as honesty and responsibility. A convicted securities fraudster, for instance, shows that he is both honest and responsible.
On the other hand, applicants without criminal records face a difficult road. Our committee seeks applicants who respect the law. If an applicant does not break the law, he tells us that he fears the law rather than respects it. Lawyers in our State must be willing to take chances in life. Those who do not break the law mark themselves as cowards who do not live properly. Our reviewers do not look favorably upon individuals who have not served time in prison. Without a felony criminal record, applicants must show their good character in other ways, such as substantial outstanding debt, crude disrespect for parents or teachers, gross irresponsibility, failure to pay child support, residence at over 50 addresses in 5 years, brazen contempt for the police or numerous misdemeanor violations, such as public urination, drunk driving, indecent exposure, disturbing the peace or lewdness. In short, applicants must show their respect for the law by demonstrating that they know how to break it.
Good lawyers must be sober, thoughtful and temperate. To ensure that our State admits only good people to the Bar, our committee carefully examines every possible source to determine that applicants regularly drink alcohol and use prohibited drugs. Citations for underage drinking are especially helpful in this regard, since they indicate that the applicant has imbibed regularly since before age 21. Evidence tending to show that applicants shoot heroin, smoke crack or marijuana, snort cocaine, pop prescription painkillers or ingest mind-altering chemicals strongly weighs in an applicant’s favor. Applicants can provide this evidence by securing sworn affidavits from acquaintances testifying that they saw the applicant using drugs at a particular time and place. Hearsay statements or rumors will not suffice to prove that the applicant properly abuses drugs or alcohol, although an applicant’s own sworn statement that he drinks at least two (2) six-packs of beer (not light beer) per weeknight will satisfy our examiners. In short, good attorneys maintain their composure with drugs and alcohol. Our citizens deserve legal representation through attorneys who know how to drink. Our committee ensures that only the drunkest advocates represent their legal interests before the courts of the State of New York.
Tea-totaling applicants face a difficult application challenge. Our committee does not look favorably upon attorneys who do not drink or use drugs. Practicing law is stressful. Drugs and alcohol ease stress, allowing attorneys to better serve their clients. Additionally, drugs and alcohol ease social inhibitions. Our committee certifies that future attorneys are jovial, outgoing, gregarious and charming. Alcohol enables lawyers to project the proper energy on their clients’ behalf. On the other hand, nondrinkers are generally stodgy, ill-humored, cold, distant, tongue-tied and uninteresting. Good lawyers must retain the ability to speak fluently and charmingly. Alcohol and drugs ensure their fluency and charm. When we say “character and fitness,” we mean that our applicants must be “fun, entertaining, fast-talking” characters. In our State, we do not want “Stick-in-the-Mud” characters; we want dynamic, outgoing and rambunctious characters.
Good lawyers must be respectful, polite and courteous. Our committee examines evidence tending to show that our applicants curse, scream, jump up and down, whine, bicker, spit, backbite, slander, gossip and raise their voices unnecessarily. Good lawyers must possess the character necessary to browbeat and verbally intimidate their opponents to win their cases. Evidence tending to show an applicant to be an ornery, irascible, argumentative, discordant and unpleasant person carries special weight in our application process. Our citizens want determined legal representation. We certify that lawyers in our State will be angry, combative people likely to kick and scream, as well as to present cogent points based in logic and law.
By contrast, we look with disfavor upon tranquil applicants who politely treat others with unequivocal respect. In this profession, winning matters. In our adversary system, there is no room for quiet respect. To that extent, we frown upon applicants with a proven record of collegiality, warmth, compassion and grace. These qualities reflect a character unfit to practice law.
We hope that these explanations provide suitable guidance for prospective applicants to our Bar. We recognize that the Character & Fitness portion of the New York State Bar Examination may seem daunting. But we encourage you to stay the course. Please ensure that you carefully assemble all the tangible evidence necessary to show your honesty, integrity, loyalty, decency, normalcy, sobriety and good morals. An organized applicant will always receive certification more readily than applicant who cuts corners when submitting necessary evidence. In that light, we encourage you to secure your relevant criminal records, leases from past addresses, employer complaints, negative credit reports, subzero bank statements, forged checks, affidavits disclosing drug use, Personal Statement of Sufficient Alcohol Consumption (PSAC), domestic disturbance citations, child support default judgments and other written materials substantiating your good character.
We wish you luck as you make your way through the application process.
Practicing law requires impeccable moral fitness. Although legal doctrine may require intellectual exertion and reasoning skill, legal practice requires an even temperament, good character, decency, propriety and appropriate living. Many applicants to the Bar believe that their academic achievements in law school demonstrate their fitness to practice law in our State. They are wrong. Our State does not condition law practice on intelligence alone; rather, it also conditions law practice on being a respectable person. This requirement perplexes many young applicants. For that reason, today we present a primer to guide hopeful applicants as they navigate their way through the bar application requirements.
In New York, lawyers must be both smart and decent. Anyone can pass law school tests and write essays. Being smart is the easy part. But not everyone can be decent. As Bar Examiners, we have a duty to the People of the State of New York to ensure that only the brightest and most moral men and women represent them in legal matters. We do not want our citizens to fall victim to intelligent—but morally bankrupt—attorneys. If we had to choose between a smart lawyer and a decent lawyer, we would choose the decent one every time.
Still, we recognize that New York lawyers must possess some basic intellectual skill. To that end, our Bar Examination tests an applicant’s rudimentary legal knowledge. Our examinations determine whether an applicant knows the elements of a contract, whether res judicata applies to a subsequently-filed lawsuit and whether the parol evidence rule bars contemporaneous oral statements during a contract dispute. Additionally, our examinations test an applicant’s ability to spot key words in page-long multiple-choice questions that enable him or her to correctly—and instinctively—mark the answer in 1.8 minutes or less. Our examinations demonstrate an applicant’s legal intelligence. Applicants should study hard to show their intelligence. We are confident that successful applicants possess the intelligence to skillfully represent their clients in any legal matter.
But intelligence and legal knowledge mean nothing without good character. An applicant may answer every question correctly on the Bar Examination, but if he is a bad person, he will not receive admission to the Bar. To avoid unnecessary exertion, we do not allow applicants to demonstrate their intelligence to us until they have demonstrated their character. Because character is more important than intelligence, we must certify an applicant’s character before allowing him or her to sit for the Bar Examination.
One cannot study how to be a good person. One either lives correctly or one does not. Our Bar Examiners determine whether an applicant has decent character. They know whether an applicant is fit to practice law in our State. Yet many applicants do not know how to demonstrate their good character. They know how to study evidence exceptions and civil procedure rules, but they do not know how to prove that they are decent people. In New York, we want our lawyers to be moral, decent, upstanding, forthright, honest and loyal. We believe our young applicants should know how to demonstrate these qualities to us. Below, we enumerate qualities that demonstrate the “character and fitness” necessary to practice law. We also discuss why these qualities matter in legal practice.
Good lawyers are honest. Our Bar Examiners will look to see that an applicant has lived his or her life with proper regard for truth in his written and oral representations. To that extent, we want to see lawyers who have lied on their resumes, lied to their employers and deceived their creditors. We want to see lawyers who have committed criminal fraud and stolen from their friends. In short, we want to see applicants who know how to bend the truth in every situation. A good lawyer respects the truth. That means the ability to convincingly lie, misrepresent, mislead, distort and deceive.
On the other hand, we do not look with favor upon applicants who “never tell lies” or who maintain a principled devotion to the truth in every situation. In our State, lawyers must be flexible in client service. No one wins when everyone tells the truth. In fact, people do not expect lawyers to tell the truth. Employers, too, do not want the truth every time. They want to hear about successes, and great success is rarely possible through truth alone. Additionally, no one even makes it into law school without having lied a few times along life’s way. To that extent, our Examiners carefully screen out applicants who demonstrate an unhealthy devotion to absolute honesty.
Good lawyers are responsible. Our Bar Examiners scrutinize an applicant’s personal and financial history to determine whether the applicant respects his or her obligations. We also look to see whether the applicant lives a decent, conventional lifestyle that inspires trust. Good applicants respect those to whom they owe obligations. We especially prize applicants who have lived at more than 35 addresses over the past 10 years. We also prize applicants with poor credit scores and numerous outstanding debts. Reproductive activity also indicates responsibility. We positively regard Applicants who do not practice birth control. We especially prize unwed fathers who neglect their child support obligations. We favorably review applicants who quit jobs without notice, leaving their employers to scramble for replacements. We also appreciate individuals who rack up substantial credit card debt with several accounts in collection houses. We accord respect to applicants who receive invoices and never pay them. These applicants demonstrate proper regard for responsible living. By accumulating obligations and skillfully living their lives to avoid them, they show their dedication to responsibility as a lifestyle. By certifying our applicants as “responsible people,” we ensure that our future lawyers will do the right thing when representing clients.
Good lawyers do not break the law. Lawyers have a public duty to enforce the law by example. They also must recognize that the law holds them to a higher standard than laymen. To whom much is given, much is expected. In order to support these ideals, applicants to the Bar in this State must demonstrate proper regard for legal authority and the moral rules that sustain our society. In that light, we favorably regard applicants with substantial prison history for violent crimes and sexual predation. Lawyers with firsthand experience in the criminal justice system will better represent clients in similar positions. Additionally, we look to see whether applicants get into brawls, fights or beat their spouses. Violent, abrasive, contentious and strident personalities befit the legal profession. In the law, clients seek favorable results through adversary justice. Applicants with a history of violence, discord and pugnacity will best serve clients. Our committee accords great respect to applicants with lengthy criminal records. Although applicants with convictions for violent crime tend to be more successful than applicants convicted for nonviolent crime, any crime is better than none. Additionally, conviction for nonviolent crimes such as fraud, theft, burglary, money laundering or fortune telling serve as probative evidence that the applicant is fit in other character areas, such as honesty and responsibility. A convicted securities fraudster, for instance, shows that he is both honest and responsible.
On the other hand, applicants without criminal records face a difficult road. Our committee seeks applicants who respect the law. If an applicant does not break the law, he tells us that he fears the law rather than respects it. Lawyers in our State must be willing to take chances in life. Those who do not break the law mark themselves as cowards who do not live properly. Our reviewers do not look favorably upon individuals who have not served time in prison. Without a felony criminal record, applicants must show their good character in other ways, such as substantial outstanding debt, crude disrespect for parents or teachers, gross irresponsibility, failure to pay child support, residence at over 50 addresses in 5 years, brazen contempt for the police or numerous misdemeanor violations, such as public urination, drunk driving, indecent exposure, disturbing the peace or lewdness. In short, applicants must show their respect for the law by demonstrating that they know how to break it.
Good lawyers must be sober, thoughtful and temperate. To ensure that our State admits only good people to the Bar, our committee carefully examines every possible source to determine that applicants regularly drink alcohol and use prohibited drugs. Citations for underage drinking are especially helpful in this regard, since they indicate that the applicant has imbibed regularly since before age 21. Evidence tending to show that applicants shoot heroin, smoke crack or marijuana, snort cocaine, pop prescription painkillers or ingest mind-altering chemicals strongly weighs in an applicant’s favor. Applicants can provide this evidence by securing sworn affidavits from acquaintances testifying that they saw the applicant using drugs at a particular time and place. Hearsay statements or rumors will not suffice to prove that the applicant properly abuses drugs or alcohol, although an applicant’s own sworn statement that he drinks at least two (2) six-packs of beer (not light beer) per weeknight will satisfy our examiners. In short, good attorneys maintain their composure with drugs and alcohol. Our citizens deserve legal representation through attorneys who know how to drink. Our committee ensures that only the drunkest advocates represent their legal interests before the courts of the State of New York.
Tea-totaling applicants face a difficult application challenge. Our committee does not look favorably upon attorneys who do not drink or use drugs. Practicing law is stressful. Drugs and alcohol ease stress, allowing attorneys to better serve their clients. Additionally, drugs and alcohol ease social inhibitions. Our committee certifies that future attorneys are jovial, outgoing, gregarious and charming. Alcohol enables lawyers to project the proper energy on their clients’ behalf. On the other hand, nondrinkers are generally stodgy, ill-humored, cold, distant, tongue-tied and uninteresting. Good lawyers must retain the ability to speak fluently and charmingly. Alcohol and drugs ensure their fluency and charm. When we say “character and fitness,” we mean that our applicants must be “fun, entertaining, fast-talking” characters. In our State, we do not want “Stick-in-the-Mud” characters; we want dynamic, outgoing and rambunctious characters.
Good lawyers must be respectful, polite and courteous. Our committee examines evidence tending to show that our applicants curse, scream, jump up and down, whine, bicker, spit, backbite, slander, gossip and raise their voices unnecessarily. Good lawyers must possess the character necessary to browbeat and verbally intimidate their opponents to win their cases. Evidence tending to show an applicant to be an ornery, irascible, argumentative, discordant and unpleasant person carries special weight in our application process. Our citizens want determined legal representation. We certify that lawyers in our State will be angry, combative people likely to kick and scream, as well as to present cogent points based in logic and law.
By contrast, we look with disfavor upon tranquil applicants who politely treat others with unequivocal respect. In this profession, winning matters. In our adversary system, there is no room for quiet respect. To that extent, we frown upon applicants with a proven record of collegiality, warmth, compassion and grace. These qualities reflect a character unfit to practice law.
We hope that these explanations provide suitable guidance for prospective applicants to our Bar. We recognize that the Character & Fitness portion of the New York State Bar Examination may seem daunting. But we encourage you to stay the course. Please ensure that you carefully assemble all the tangible evidence necessary to show your honesty, integrity, loyalty, decency, normalcy, sobriety and good morals. An organized applicant will always receive certification more readily than applicant who cuts corners when submitting necessary evidence. In that light, we encourage you to secure your relevant criminal records, leases from past addresses, employer complaints, negative credit reports, subzero bank statements, forged checks, affidavits disclosing drug use, Personal Statement of Sufficient Alcohol Consumption (PSAC), domestic disturbance citations, child support default judgments and other written materials substantiating your good character.
We wish you luck as you make your way through the application process.
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