I have quite a bit of scorn for the tort system as it is today, but I blame juries. Lawyers are just doing their job usually - some of the big class action guys turn my stomach.
This is simply not true. Not every legal case has a lawyer on both sides. It’s certainly not the case in civil trials, and I wouldn’t be surprised if sometimes not even in criminal cases. And while these may be technically pro se, this is not necessarily a matter of free choice by the party without a lawyer.
I can’t speak to California, but the reasons “most jurisdictions” have no plans to change is because “most jurisdictions” don’t do unpublished opinions. California is the only state in the union to use unpublished opinions, and only a few federal jurisdictions use them.
Tempest in a teapot.
Wow, I didn’t know that, pardon my ignorance. See, I thought that most states used them because I read a newspaper article that said so. This one:http://www.mcclatchydc.com/homepage/story/20328.html Here is a citation to the current Wisconsin rule. I don’t know when you believe that Wisconsin seceded from the Union, but you are careless and wrong. http://www.badgerlaw.net/Data/LinkFarm/Link_Directory_70/Link_Directory_72?site=PublicWeb§ion=Link As of 2003, thirty eight states (plus D.C) prohibited citation of unpublished decisions. http://www.accessmylibrary.com/coms2/summary_0286-20467659_ITM I really don’t know how you can assume from what I’ve provided that this really means only one state, when it is far more than half.
When it is your million dollars that is gouged out of you by the appellate court, adding insult to the injury of losing your eyesight, you might expect them to have the courage to make it binding precedent so that the litigant can have a realistic chance at appeal. Tempest in a teapot? No, justice is treating each person before the court with the same professionalism and impartiality as if they were a big corporate campaign donor. In the many, many, many, many unpublished decisions in California that I have read, I would say that at least most are contrary to established published law, poorly written and frankly full of shit, and usually more than one of the preceding.
[bolding mine]
What you have a problem with, then, is that in many cases, the court of last resort has a discretionary docket (as, for instance, the United States Supreme Court). The California Supreme Court is not obligated to hear many cases; it takes only those that present pressing controversies of law. This is the reason why Hild likely won’t be heard there, not because of citation rules.
Although my sympathies are aligned with yours and I support a system of open citation (which, by the way, permits nonprecedential opinions to be cited as persuasive but not binding authority), I think you may have misapprehended the situation.
Appellate courts where there is appeal by right, as is the case in most intermediate courts of appeal, use unpublished opinions in deciding routine cases that do not pose novel issues of law, but which nevertheless come before the court by dissatisfied litigants. The Hild case is a fine example, turning on long-settled law governing vicarious liability and the detour/frolic distinction (incidentally, the remittitur was absolutely appropriate here). The court uses these types of opinions not because it is favoring one litigant over another, but because it desires to resolve the case correctly as between the parties only and not worry about predicting how an opinion that does not change the law might be used by future parties and finessing it accordingly.
Perhaps you feel that judges should have to undertake this step in every case; nevertheless, as another supporter of open citation allowed, conscientious and efficient workers in every field must prioritize some tasks over others. Deciding the same vicarious liability case for the hundred-thousandth time (and this is not that much of an exaggeration, it’s been the law for more than a century) simply is not a good use of judicial resources.
The suggestion that nonpublication forecloses Supreme Court review is false; even unpublished opinions can get direct review if they are granted cert. If there are fewer unpublished cases that make it there, it is because the judges, far from being venal cowards, have been scrupulous in their duty to publish law-altering cases and reserve nonpublication for legally-uninteresting routine ones.
IAAL. I think lawyers are the best trained at writing laws, rules and regulations. In essence, that’s what they’re trained to do. It takes a LOT of effort and understanding to see how different pieces of the puzzle fits together and an understanding of what “may” and “shall” and “will” or hell, a wayward comma will do to the meaning in a sentence. How many interpretations can be extrapolated from what’s written? In the whole spectrum of human behavior, how could what I’m writing be exploited? It’s difficult to do well.
But lawyers are also the cause of the very problems they’re attempting to solve. Maybe not the same lawyers, but as a group…yeah. Lawyers suing because the Criminal Code on Muggelry has “shall” written as “may” and thus their client has the ability to go on a Muggelry spree, thus necessitating every “may” being changed to “shall” and now the guy just trying to cross the street against traffic gets booked for a felony.
Medical malpractice insurance is necessary. Doctors shouldn’t screw up. Lawyers should have the right to fight for clients who have been harmed during a medical procedure.
These three statements seem pretty clear and logical. But when you’ve got a system when lawyers can go after doctors for anything, however baseless, you drive up malpractice insurance, which drives up health care costs, which takes money out of everyone’s pocket. I’m not saying it’s a bug in the system, but I’d rather it not be a feature either. I just don’t have a solution that doesn’t involve denying rights of those who have genuinely been harmed.
There are plenty of other examples all across the legal spectrum that involve lawyers creating a perpetuating spiral of ever-increasing disruption even if you can pick specific examples in that spiral that are good and just uses of a lawyer’s talent.
So instead, I bring you my favorite lawyer joke:
What’s the difference between a lawyer and a rooster?
A rooster clucks defiant
But not every case creates new precedent. What about cases where the appellate court is simply applying existing precedent to correct an error that the trial court made. Why spend taxpayer money to publish a decision that doesn’t change the law?
If an intermediate appellant court issues a decision that is “contrary to established published law, poorly written and frankly full of shit,” don’t the parties have the option to appeal to a higher court to correct that error?
Nice joke Ender, 
But the sentiment behind the joke is one I never really understood. Lawyers do everything they can to make sure their clients go away pleased with the service. Word of mouth is everything to a lawyer’s livelihood and any lawyer that fucks the client won’t be in practice too long. I guess it’s the same for all service industries, and especially so where the service providers are in oversupply. Weird.
I wish I played golf so I could slowly and deliberately lay aside all my gear and then exit the field–the better to make it clear this is NOT a golf clap.
ivn1188, this is a very well written and insightful OP. Thank you for it.
Got a real example of this?
Lawyers are to be despised because they hide behind the Constitution and pretend to be defenders of law and order.
Honestly though the last thing they want in a justice system is actual justice. It is an adversarial system where often the person with the best attorney wins (barring smoking gun evidence). Worse, justice takes a back seat to money. The prosecution spends far more money prosecuting a criminal than the criminal ever gets in his/her defense if they use a public defender. Got injured and want to do a civil case? No attorney will touch it unless they have a reasonable expectation of a substantial payday…regardless of how “just” your cause may be (although if you are very rich you can access the system…people of moderate means are just fucked).
Laws are not written in plain language such that you pretty much must retain an attorney. How the actual court works is impenetrable to the average Joe such that they have little chance of understanding even the process except on a vague level.
Lawyers are the modern equivalent of the clergy of old. The last thing they want is a populace who understands what they do in any meaningful way. As long as the mystery remains the lawyers exert a level of control they otherwise likely would not have.
The legal system is abused mercilessly as a tool to harass. In business it is quite often used to gain a competitive advantage even if there is no expectation of winning. The case will be in the courts for years and that can be enough, win or lose (my father is an attorney who defended a guy in this position…my dad won the case after 6+ years and it really was never in any doubt he’d win but his client had gone out of business several years before because of all of it). Yet such practices are defended as ok. According to the OP it’s ok because you can spend a few hundred thousand dollars defending yourself! Neat huh?
Bottom line, attorneys are aware of the rotten apples in their bunch and the overt flaws in the system and yet do little to nothing to fix any of it or work to rid themselves of their more flawed members. They are cool with the status quo because it is in THEIR interests, not society’s interests.
For that they should be despised.
Well, it’s not “may” versus “shall,” nor is the sanctioned activity as innocuous as crossing the street, but you might be interested in the case of “a fine, or imprisonment … and both.”
Not offhand. But let’s take corporate policy. Twenty years ago there were no corporate handbooks to explain policy and procedures on computer usage. Then you get some jerkoff looking up scat porn on a BBS and they try to fire the guy.
“But no one said I couldn’t look up guys filling a girl’s mouth with shit,” he proclaims innocently.
So the lawyers write into the policies that you can’t look up scat porn on the internet.
Then another guy starts looking up regular porn. So they change the policies again to all porn.
Then someone spends all day long on the internet playing games. So the lawyers change their policy again to cover “inappropriate usage.”
But what is “inappropriate usage”? Now someone’s on a message board and the company says that what he’s writing is “inappropriate” and try to fire him and an argument ensues over the terminology.
Eventually the system and the language and the policies and procedures are so well locked down as to be completely unambiguous and non-negotiable. And 130 pages long. Now the fun begins. Because a boss who wishes to get an employee fired for cause can find some way that a worker is violating one of the 5,732 rules in the policies and procedures manual and then BAM! That guy is out on his ass.
This happens time and time again across all areas of the law. Corporate policies. Contracts. Warning labels. The list goes on. I’m not blaming anyone. If the law is ambiguous, it helps no one and there will always be people who thrive on finding loopholes in the system. And if the law is rigid it’s only because it’s completely inflexible and wholly unwieldly.
My point is that neither scenario is preferable, but that lawyers, by pointing out the flaws in the former are directly responsible for creating the latter.
I’m with the OP. I hate plenty of scuzzbucket lawyers and politicians. That said, law and politics are two of the longest-suffering, most unfairly maligned professions on earth.
Every argument against the two professions, every single one eventually boils down to one sentence, and however that sentence ends, it always starts out with the same four words: “In a perfect world . . .”
Lawyers and politicians are imperfect people working imperfect jobs in an imperfect system that is designed to help keep an imperfect world running. Once we appreciate that, we can work on making the flawed system a little better, but we will always need lawyers, and we will always need politico’s, if for no other reason than the jokes are so awesome.
What’s brown and looks good on a lawyer?
A doberman
Bullcrap. The things you’re complaining about don’t stem from the legal system; they stem from human nature. Take the example you gave about your father’s client. Absent recourse to the courts, the issue would have been decided far more quickly–because the wealthier of the two parties (presumably the defendent) would have hired thugs to assault and/or kill the weaker). Law is an attempt to stem the rule of violence.
The only reason I opened this thread was to see what kind of buffoon would be defending lawyers. My next thought was tl;dr with a minor in who gives a crap.
You despise your dad? 
That has to be the dumbest excuse I have heard yet.
The guy is better off because laws exist preventing his competitors from killing him?
Well gee…great and true as far as it goes I suppose.
That does not change the fact that the wealthier of the two availed themselves of the legal system and abused it to bring a bogus case to squeeze out a competitor. Apparently the bar on what constitutes a “bogus” case is rather low.
Such harassing lawsuits are common. My roommate works in the pharmaceutical industry and he told me they use lawsuits as a matter of course when their patents expire. Once the patent expires the manufacturer sues anyone who tries to make a generic alternative. They invariably lose those cases but get to effectively keep their patent for years longer which is more valuable than the cost they incur fighting a bogus case. You and I get to pay higher prices for drugs as a result.
Obviously. Otherwise his argument might have stemmed from something rational, and that is most definitely not the case.