The story so far
Justice Russell Fox said: Justice means fairness, and that fairness and morality require a search for the truth, otherwise the wrong side may win.
The common law in England (and later its colonies) has never tried to find the truth. The English system grew out of practices of self-interest. It began as an extortion racket in 1166. Extorting judges and their lawyer-bagmen formed a cartel to increase profits. Judges formally rejected the European truth-seeking system in 1219.
Lawyer-politicians in have been able to block change to a justice system since they became the “dominant interest” in Parliament about 1350. (Vote 1: Anyone but a lawyer.)
The civil version of the adversary system dates from 1460; the criminal version from 1695. In that system, trial lawyers – described as serial liars because they are adept at sophistry – gather and present evidence, question witnesses, and can spin the process out.
Judges have never been trained as judges; they are lawyers one day and judges the next. A US lawyer, Alan Dershowitz, said: ‘… lying, distortion, and other forms of intellectual dishonesty are endemic among judges.’
In the past two centuries, judges have created a number of truth-defeating devices which make it relatively easy for lawyers to get rich criminals off. The devices were also applied to the civil system, and made litigation even more of a lottery.
Legal academics joined the cartel after a serial liar, Billy Blackstone, began the first law school at Oxford in 1758.
From 1800, Napoleon reformed the European system to make it a rational system for dealing with disputes effectively and efficiently.
In Australia, tax evasion organised by judicial criminals such as Sir Garfield Barwick has stolen billions from pay-as-you-earn taxpayers.
Class actions
The Duke of Newcastle, bagman for the corrupt Whig oligarchy, had to find ‘pasture enough for the beasts that they must feed’. Likewise the law. There were 213,000 lawyers in the US in 1960; in 1991 there were 772,000. More pasture had to be found.
Jurist Walter K. Olson says (The Rule of Lawyers St Martin’ s Press, 2003) that in the mid-1970s proposals ‘that judges create some new right to sue’ were ‘all but ubiquitous’. He saw Ralph Nader (b. 1934, Harvard Law School graduate 1958) as being useful in that cause. Olson wrote:
The trial bar’s most valuable asset of all in public debate, of course, has long been its ally Ralph Nader, one of the few public figures who can obtain news coverage just by showing up somewhere, and who, since his emergence in public life nearly forty years ago, has reliably been on hand to hold press conferences and tape commercials for whatever the trial lawyer cause of the moment may happen to be.
Nader and Mark Green edited Verdicts on Lawyers (Crowell 1976). Beverley C. Moore, a lawyer who worked for Nader for five years, and Fred Harris, a Democratic Senator, wrote a chapter called Class Actions: Let the People In. Olson wrote:
Moore and Harris argued that courts should act to make it much easier for lawyers to file class-action suits against American business. [They had] a long list of the injuries, ailments, frustrations, and indignities of everyday life over which, in their opinion, the courts should permit class-action lawsuits. The list enumerated some 24 varieties of harm, paired in each case with the various businesses that could be sued over them. ‘Tooth decay … Sugar industry (food manufacturers)’ was no. 15, “Air, water, noise, other environmental pollution … Business enterprises generally” was no. 23. The ill effects of smoking and liquor consumption, of course, could be laid at the door of the tobacco industry and the producers of alcoholic beverages … Food manufacturers would [also] face law suits over … a wide range of other maladies, including heart disease, concerns linked to fat intake, and adult-onset diabetes. As befits an essay in a book co-edited by Ralph Nader, automakers would come in for a particularly rough time of it …
Olson concluded:
By even a conservative reckoning, the items on the list would have led to the redistribution of well over $1 trillion a year back in 1976, at a time when the gross national product (GNP) of the United States stood at $1.8 trillion … More than half the nation’s GNP, in other words, would be routed through lawyers’ offices. A lot of it would stay there: Moore and Harris enthusiastically endorsed the arrangements by which courts let class-action lawyers collect fees for their efforts, amounting to a share of the class’s claimed recovery – sometimes as high as a third.
It seems to me that executives who have guilty knowledge of harmful practice and/or products should be dealt with in the criminal courts, and that the Manuel Test [a fair go all round] should apply to others involved: victims, shareholders, lawyers.
Cheaper class actions
In Justice in the 21st Century, Justice Russell Fox showed how class actions relating to asbestos, tobacco, intra-uterine devices, breast implants, and the like can be dealt with at minimum cost. He wrote:
… the vital evidence usually consists of what information the defendant had at any relevant time and what it should have done as a result … there should, absent an admission, be a single inquiry, preferably a judicial inquiry, into the information reaching the manufacturer or producer and as to the causal connection. The inquirer(s) will be assisted by counsel, but not a host of counsel. It would probably be as well to have two laymen, with a judge, or even two judges and three laymen, because the results will be available as evidence in any action. The vital matter will be to search effectively the files of the manufacturer, and ascertain the knowledge of its directors and employees, with no legal excuse allowed to stand in the way. The other matter, of causation, will inevitably be the subject of scientific evidence.
The great Tobacco-Medicaid wheeze of the 1990s should dispel any doubt that the adversary system is a business. The venture offended a rule which ‘bars a lawyer from charging or collecting a clearly excessive fee’, and some cases involved ‘pay to play’, i.e. a lawyer donates to a law officer’s election campaign and in return gets public legal work. The American Bar Association deplores the practice.
The Surgeon-General warned that smoking is a risk in 1964. Most tobacco suits thereafter failed on the ground that the complainant failed to exercise personal responsibility. In 1993, a Mississippi lawyer, Mike Lewis, gave Mike Moore, the Mississippi (Democrat) Attorney-General, the idea of shifting the goalposts from individuals to taxpayers who paid the Medicaid funds which cared for sufferers.
Moore invited Dickie Scruggs – surely a Dickens invention – to research and develop a Medicaid case. Scruggs (b. 1946), a Democrat, had contributed to Mike Moore’s election campaign, and had earlier worked with an Alabama lawyer, William Roberts Wilson Jnr on asbestos cases. Wilson later claimed that Scruggs cheated him out of millions from the asbestos litigation and used the money to fund tobacco claims. Wilson’s case against Scruggs was still on foot in 2009.
In May 1994, Moore sought from tobacco companies $940 million said to have been spent by Mississippi on people with tobacco-related illnesses. To persuade other state attorneys-general to join the action, Moore and Scruggs, known as Mo and Scro, traversed the country in Scruggs’s Lear Jet.
Pay to play
Walter Olson said most Attorneys-General who joined the action gave the business to private lawyers ‘who were often among their most important campaign donors … a pay-to-play scandal [was] waiting to happen’.
Catherine Crier, a former Texas judge who became host of Catherine Crier Live on Court TV, says in The Case Against Lawyers (Broadway, 2002) that in 1998 it was alleged that Texas Attorney-General Dan Morales (Democrat) ‘had solicited large sums’ from five law firms he hired to do the tobacco work, and that lawyer Joe Jamail was quoted in The Houston Chronicle as saying: ‘Morales solicited $1 million from each of several lawyers he considered hiring.’
With 46 Attorneys-General on board, the tobacco companies folded. In November 1998, they put their names to a Master Settlement Agreement (MSA) of US$246 billion over several decades. Cigarette prices shortly rose by 45 cents a pack.
In view of the millions they stood to gain, lawyers decently waived their usual contingency fee of 40% of the payout. Walter Olson said the fees ranged from 3% to 25%. Scruggs’ firm was reported to have been rewarded with as much as $848 million.
Dickie Scruggs imprisoned for bribery
Lawyer Robert A. Levy, author of Shakedown: How Corporations, Government and Trial Lawyers Abuse the Judicial Process (Cato Institute, 2004), said in 1999: ‘In Florida, judge Harold J. Cohen … denounced the state’s 25 percent contingency contract, observing that the fee, $233 million per lawyer, ‘shocks the conscience of the Court.’ The average contingency fee worked out at about 8.8%. Levy told me in May 2005:
Attorneys for the 46 states that were part of the Master Settlement Agreement received $750 million in the first year and $500 million each year thereafter. If you figure 25 years out, that’s a total of $13.3 billion (without adjustment for present value). Four states were not part of the MSA. Their attorneys received the following amounts (in billions of dollars): Minnesota 0.5, Florida 3.4, Texas 3.3, Mississippi 1.4. Total for 50 states: $21.9 billion.
Texas Attorney-General Dan Morales was charged by Federal investigators with falsifying documents to try to get US$520 million from the tobacco settlement for a lawyer friend, Marc Murr, who had done little or no work on the tobacco action. In 2003, Morales plea-bargained his sentence down to four years.
In March 2007, Dickie Scruggs and others offered a Mississippi judge, Henry Lackey, a bribe in return for a favourable ruling in a squabble over money with another law firm. Informed by Judge Lackey, FBI agents wired him and set up a sting. In October 2007, Scruggs was involved in payments totalling $50,000 made by others to Judge Lackey.
A federal grand jury indicted Scruggs and four others in November 2007 on charges of conspiracy to bribe a judge. If convicted, he would face up to 75 years in prison. A December party at his mansion to raise funds for Mrs Hillary Clinton’s presidential campaign was hurriedly cancelled.
Scruggs plea-bargained his sentence down to seven years. In March 2008, he pleaded guilty to conspiracy to bribe and went to prison. It was reported in September 2009 that lawyers Lee Young and Charles Mikhail had filed a federal lawsuit claiming Scruggs still owed each of them $194,000 from the 1998 tobacco agreement.
Australia has a quasi-contingent system; lawyers can get more than normal costs for speculative litigation, but not 40%. It was reported in 2003 that lawyers Maurice Blackburn Cashman got $15 million (13.4%) of a $112 million payout to 23,099 shareholders in an insurance company, GIO.
No win, no fee sounds good, but what if you lose? A judge ordered a tobacco company to pay a Melbourne cancer victim, Rolah McCabe, $700,000 in 2002, but the Victorian appeal court reversed the decision; the children of the now-dead Mrs McCabe became liable for fees said to be at least A$4 million.
And what if you win? A Queensland law firm, Baker and Johnson, whose logo is a charging two-horned rhinoceros, got $5000 compensation for a woman’s back injury. They kept the $5000 and asked her for another $7000.
Defence of the civil adversary system<
Defenders of the civil adversary system say its virtues include client control and neutral and passive judges.
Professor Stephan Landsman, now of DePaul University, Chicago, wrote in a section called Defense of the Adversarial Process in his Readings on Adversarial Justice: The American Approach to Adjudication (West, 1988, sponsored by the American Bar Association): ‘The adversary process provides litigants with the means to control their lawsuits. The parties are pre-eminent in choosing the forum, designating the proofs, and running the process.’
However, Professor David Luban stated in a paper, Twenty Theses on Adversarial Ethics, for a 1997 Brisbane conference, Beyond the Adversarial System:
As for the idea that advocates offer clients vicarious participation in their own cases, it simply fails the test of reality … In an American trial, the client is little more than a marionette being moved by a lawyer/puppet-master.
Professor Landsman also wrote:
When litigants direct the proceedings, there is little opportunity for the judge to pursue her own agenda or to act on her biases … One of the most significant implications of the American adoption of the principles of neutrality and passivity is that it tends to commit the adversary system to the objective of resolving disputes rather than searching for material truth.
If resolving disputes – not making money for lawyers – is really the objective, America would be better off using the lawyer-free method invented by Confucius (551-479 BC) at about the same time the Sophists were teaching Athenian lawyers how to lie.
In the Confucian system, mediators decide cases on the circumstances rather than by reference to an abstract system. Despite Mao Zedong, China’s system is still vaguely based on Confucian benevolence and reciprocity.
Among 1200 million, there are said to be 800 qualified lawyers and 10 million mediators, not all, one trusts, members of the secret police. Pro-rata, the US would have 180 lawyers, England 40, and Australia 12. London would have five lawyers, Washington two-fifths of a lawyer, and Canberra one-fifth of a lawyer. That sounds about right.
