The cartel: law as business

This is the16th extract from Evan Whitton’s Our Corrupt Legal System, available free at netk.net.au/whittonhome.asp. Whitton is a legal historian, a trade almost as rare as the pig-footed bandicoot.

The story so far.

Justice Russell Fox said justice means fairness; fairness and morality require a search for the truth, otherwise the wrong side may win; truth means reality, what actually happened. The common law in England (and later its colonies) has never sought the truth. It began as an extortion racket in 1166, and went downhill from there. Extorting judges and their lawyer-bagmen formed a cartel to increase profits.

Trial lawyers have been called serial liars because they are adept at sophistry, a technique of lying by false arguments, trick questions etc. Judges have never been trained as judges; they are serial liars one day and judges the next.

Lawyer-politicians have been able to block change to a truth-seeking system since they became an oligarchy in Parliament about 1350. (Vote 1: Anyone but a lawyer.)

In the adversary system, trial lawyers control evidence and question witnesses. That enables them to spin the process out and extract more money from clients. Yale law professor Fred Rodell said the system is a racket. The civil version dates from 1460; the criminal version from the 18th century.

Legal academics joined the cartel after a serial liar, Billy Blackstone, began the first law school at Oxford in 1758.

The cartel: law as business

Common lawyers like to think they are members of a learned profession, but the law has effectively been a business since the lawyer-judge cartel was formed to maximise profits (partly by extorting bribes from litigants) more than 800 years ago.

Lawyers may say: “Cartel? What cartel?” Chief Judge Richard Posner’s description was noted in the section on the origin of the common law.

Chief Judge Dennis Jacobs is head of the federal Court of Appeals for the Second Circuit, which is based in New York and covers New York State, Connecticut and Vermont. His lecture, The Secret Life of Judges, delivered at Fordham University on 20 November 2006, was published in the Fordham Law Review in May 2007. Chief Judge Jacobs said judges have:

… a habit of mind that, among so many admirable features of the judicial mentality, amounts to a serious and secret bias … an inner turn of mind that favors, empowers, and enables our profession and our brothers and sisters at the bar … It is an insidious bias because it is hard to make out in the vast maze of judicial work … that are woven together like an elaborate oriental rug in which the underlying image of the dragon emerges only after you stare for a while. I discern in this jumble a bias in favour of the bar lawyers: what they do; how they do it; and how they prosper in goods and influence. This is the figure in the carpet.

Professor Benjamin Barton, of the University of Tennessee College of Law, put the question, Do Judges Systematically Favor the Interests of the Legal Profession? in the Alabama Law Review of December 2007. In what may be termed the Barton Hypothesis, he answered his question thus at page two of his 52-page (14,821 words) paper:

Here is my lawyer-judge hypothesis in a nutshell: many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible legal result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession.

Max Weber (1864-1920), the German polymath who taught law, political economy, economics, and sociology, wrote in 1915.

In England, the reason for the failure of all efforts at a rational codification of law were due to the successful resistance against such rationalisation offered by the great and centrally organised lawyers’ guilds, a monopolistic stratum of notables from whose midst the judges of the High Court are recruited … they successfully fought all moves towards rational law which threatened their material position.

If Larsen E. Pettifogger (The Kingdom of Id) were a little smarter, he would be the quintessential lawyer-businessman.

In Greed on Trial (The Atlantic Monthly, June 2004), Alex Beam quoted Robert Popeo, a plaintiff’s lawyer who was seeking an extra US$1.3 billion for starving tobacco lawyers, as saying: ‘… the law is an industry now, not a learned profession.’ An editorial in The Financial Times of 16 June 2005, stated:

A looming shake-up of legal regulation is prompting British law firms to rethink their business models. A recent survey shows two-thirds of the top 100 firms plan to admit non-lawyers as partners, one in five intends to seek outside investors and one in 10 aims to list on the stock market … As for the supposedly dangerous profit motive, law firms have been ruthlessly pursuing profit for years.

People in business do not have a privilege of secrecy in their dealings with each other. Professor David Luban has noted: “[If a] lawyer is really just another businessman, [lawyers] lose whatever claim they have to the perquisites and immunities of the legal profession, [including] such invaluable goodies as the attorney-client privilege.”

A feeding frenzy of lawyers

The Wikipedia states: “Several economic studies and legal decisions of antitrust authorities have found that the median price increase achieved by cartels in the last 200 years is around 25%.”

That may be the norm, but trial lawyers have never been satisfied with 25%, e.g. Jennens v Jennens. That raises a question: are they the most avaricious of all businessmen? Some pointers:

As noted, law professor John Banzhaf, of George Washington University, Washington, DC, said in 2002: “Like sharks smell blood, lawyers smell money.”

In Anatomy of a Murder (1958), Judge John Voelker (1903-91) has lawyer Paul Biegler echo the Mafia motto, “Get the money, and trust no-one.”

Lawyer Arthur Train wrote in The Confessions of Artemus Quibble 77 (1924): “There are three golden rules in the profession … the first … thoroughly terrify your client. Second, find out how much money he has and where it is. Third, get it.”

Johnnie Cochran knew that O.J. Simpson was guilty of murder but took US$500,000 to pervert justice on his behalf. At Cochran’s funeral in April 2005, Simpson said: “I thought he represented … the best in what our adversarial legal system was about.”

Robert Blake, a US actor found not guilty of murdering his wife, said in March 2005: “You’re innocent until proven broke.” He said he had spent US$10 million on his defence.

Alec Baldwin, a US actor, said in 2008 that his divorce had cost him $20 million, and that judges were “like pit bosses, keeping the money flowing”.

Lawyers Weekly reported in May 2002 that a survey for the American Bar Association’s Litigation Section found that fewer “than 20% of Americans have confidence in the legal profession”, and that the reason boiled down to “a single word: character”. The organ continued:

The American public says lawyers are greedy, manipulative, corrupt and do a poor job of policing themselves … Specifically, respondents said that lawyers: are more interested in winning than seeing that justice is served (74%); spend too much time finding technicalities to get criminals off (73%); are more interested in making money than serving clients (69%)…. A respondent said: ‘Lawyers] get into a courtroom and they are like sharks. They want that money.’

It should be said that common lawyers do not have a monopoly of avarice. In April 2005, Reinder Eekhof, a Dutch law school graduate, accidentally sent an e-mail saying he had “finally finished this stupid education” and was “now looking for someone crazy enough to dump a suitcase full of money in my lap every month”.

The law as game

Geoffrey Robertson QC, author of The Justice Game (Random House, 1998), was asked in 1998: “Should justice be a game?”

He replied: “Should it? No. Is it? Yes. We can’t avoid the fact that the adversary system … does make justice a game.”

US jurist John Henry Wigmore (1863-1943) referred to “the game of litigation”.

Judge Learned Hand (1872-1961) recalled that he once said to Justice Oliver Wendell Holmes Jnr: “Well, sir, goodbye. Do justice!”

“That is not my job,” Holmes replied. “My job is to play the game according to the rules.”

In We, the Jury (Basic Books 1994), Jeffrey Abramson, a lawyer and Professor of Politics at Brandeis University, Massachusetts, quoted Stephen Adler, of The Wall Street Journal, as reporting that jury consultants openly admit that:

… if a client needs prejudiced jurors, the firm will help find them … they defend the ethics of their profession by pointing out that they obey the same imperatives lawyers do in our adversary system: they seek their clients’ advantage within the rules of the game … Media accounts strongly reinforce the notion that jury selection is the only game in town and the game is crooked.

Justice Geoffrey Davies, of the Queensland appeal court, and J.S. Leiboff wrote in Reforming the Civil Litigation System: Streamlining the Adversarial Framework (Queensland Law Society Journal, 1995): “… the adversarial imperative encourages, each party to … even deny specifically facts known to be true … By such tactics the parties [lawyers] are playing a very expensive game.’

Norman Mailer (1923-2007) told me in 2000: “I’ve always looked upon our legal system as a high-stakes game played at the top by very skilful men, and once in a while even justice is served.”

The adversary system may be a game, but the playing field is not level. Later sections note how the game is rigged to get money for lawyers.

Next. Zealous prosecutors; the judge as Humpty Dumpty