The Best Defense

“Justice…is that which exists when all the laws are enforced”
— Isaac Asimov

Actually, Asimov put those words into the mouth of a robot, just to show how risible a definition it was.  Laws are rigid, codified and insensitive Rules.  Justice, on the other hand, embodies a culture’s idea of what is fair.  We believe that justice is larger than mere laws, although we think it should encompass those laws.  Should it happen that the letter of the law requires something unfair, we are quite prepared to overrule it in our search for justice.

Still, our presumption is that the  goal of our elaborate and expensive legal system is justice.  We do not want a mere sterile application of laws, but laws sensibly enforced with fairness as the guiding principle.

Sadly, many, if not most of us, have come to feel that our legal system is a broken tool, unable to deliver the justice we ask of it.

On the one hand, we feel that it has somehow become a sort of medievalist’s playground, where modern day Scholastics happily vie with one another in arid arguments as removed from the real world as those famous angels sitting on pinheads.  On the other, we see it as a battlefield, formed like a maze, where hired champions contend, the victor being not the one with the best case, but the one who can most skillfully manipulate the Byzantine rules to his advantage.

What happened?  How could the practice have come so far from its avowed goals?  When did it start to go wrong?  And, most importantly, if we were going to try to fix the mess, where would we target our efforts?

A few years ago I was invited to a ceremony where a friend took the Bar oath as an attorney.  Listening to the oath, I was reminded of a fact that is easy to forget:  Attorneys are not merely hired agents of their clients.  They are, in fact, officers of the court, co-responsible to achieve the justice that is supposed to be the goal of the system.

The adversary system, which forms the operative heart of our legal practice, has long been recognized as having this inherent flaw, this built-in contradiction.  Lawyers are, by definition the servants of two masters.  They are agents of their clients, sworn to work for the clients’ best interests.  They are also officers of the court, sworn to work for fair enforcement of the laws and, ultimately, for justice.

Now it is pretty obvious that those two are not always pulling in the same direction.  Question is, when they conflict, which one wins?  It should not surprise any of us to find out that law and precedent has meticulously examined the problem and come up with answers for almost all possible dilemmas.

But if you were to look at those answers, you might get quite a surprise.  In America (but only in America) the answers are completely biased to one side.  In virtually all cases the system requires that the client’s interest must always win out.  This, I would submit, is the crux of where and how our legal system has broken down.

As I see it, our adversary system has become corrupted.  Through years of misguided decisions and precedents what I regard as a very peculiar idea has taken up residence at the center of the structure and become its governing principle:  Every client is entitled to the best possible defense of his case.

“What is wrong with that principle,” you may ask?  “If I were in court I would certainly want an attorney who would present the best possible defence of my position.”

Maybe so and possibly you would.  But let me point out that the problem with this idea is not what it says but in what it does not say.

It does not say you are entitled to the best presentation of your case.  It does not even say that you are entitled to the best presentation of your defence of the case.  It simply says the best defence.  Period.

To illustrate the problem, let’s take a criminal case:  A girl was raped.  Someone is charged.  His attorney knows that, whatever the laws say, if he can attack the victim’s reputation, his client is less likely to be convicted.  So he feels obliged (whatever his personal feelings and whatever his knowledge of the true facts) to impugn the character of the victim, even when he knows there is no shred of real evidence for what he wants the jury to believe.

This is exactly what is taught in law schools (I should note that the techniques are taught while lip service is given to more ethical behavior).  I have had attorneys defend that course of action (and its myriad siblings) to me as being actually required by their oath as attorneys and by the Canons of legal ethics.

I am sure they believe that.  But let me quote from the State Bar Act, under Duties Of Attorney:  “To employ….such means only as are consistent with truth, and never seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.”

Surprised?  Does this part of the code seem to contradict what we know to be the actual practice and mind set of most attorneys?  I would suggest that it is precisely their real mind set and those practices that are responsible for travesties like the O.J. Simpson trial…and the von Bulow trial…and the Menendez trial…and…

I would also submit that this attitude and practice is an absolute perversion of the adversary system.  The result is that they feel obliged not to present the case you do have, but to present the case that you don’t have but which would be most effective if you did.

Let me suggest that I, as a client, am entitled to no such conduct on my behalf.  What I am entitled to and what I should be able to expect from my representative, is the best presentation of my case as possible.

Yes, our system is a gladiatorial one.  And yes, we do have the right to go out and hire the best gladiator we can afford.  We have every right to have our real case presented in the best and most skillful light possible.

What I don’t believe is that any of us has an inherent right to run out and purchase the best case that some ethically challenged individual can fabricate, no matter how far removed from the facts.

If we really want to repair things, I believe this insane devoluted code of attorney conduct is where we should start.

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