Law Versus Justice III

by Barry Goldman

Psychologists tell us we are susceptible to the “just world fallacy.” We think the arc of history bends toward justice. We think people, ultimately, get what they deserve.

Historically, this belief led to the practice of trial by combat. God, you see, favors the just. Since that is so, we merely need to arrange a fight between the competing sides in a dispute, and God will reveal which side is right by seeing to it that the right side prevails. Trial by ordeal works on the same principle. Suppose two disputants appear with equally likely explanations for some state of affairs. Both accounts cannot be true. To resolve the question, the disputing parties can be, for example, required to grab a glowing hot iron bar and carry it for a specified distance. After a proscribed number of days, their resulting wounds can be examined and compared. The person whose burns appear less festering and septic will be the one who is favored by God and ipso facto the one whose account of the situation is true.

We don’t do it quite that way anymore. But the essence of the trial by ordeal and trial by combat is still with us. When we have disputes that we can’t resolve ourselves, we hire champions to go forth and do combat on our behalf. They do it in dark wool suits rather than suits of armor, but the principle is the same. Our faith in this arrangement is similar to our faith in capitalism. Just as the invisible hand of the market is believed to promote Prosperity, the adversarial system is believed to promote Justice. The two mechanisms are equally marvelous.

Richard Feynman liked to describe the way a particle accelerator is used to examine the structure of the subatomic world by comparing it to figuring out how a Swiss watch works by smashing two of them together and watching to see what flies out. The adversarial system has a similar design. You get your lawyer, I get my lawyer, and we smash them together and see what comes out. Not surprisingly, there are problems with this approach.

As we tell our students in law school, a lawyer’s job is the zealous advocacy of his client’s cause. Your client may be reviled by society. He may stand accused of the most egregious offenses. Rape, for instance. Your duty is to stand beside him. When he has no other friend in the world, your job is to be his friend. You have a duty to make the best case for him that can legally be made. If that means humiliating the witness against him, your job is to humiliate her. If it means destroying her character and reputation, your job is to destroy them. If it means making her relive the most horrible event in her life until she breaks down and shakes with sobs and moans, it can’t be helped.

The only reason to avoid making the complaining witness cry is that it may produce sympathy. Producing sympathy is a tactical mistake.

The lawyer on the other side will similarly brutalize your witnesses if she thinks it will benefit her client. She too is bound by the sacred duty of zealous advocacy. It is fundamentally and irreducibly an ugly business.

Then there is the problem of the conduct of the hearing. Litigants looking forward to their day in court believe they will be able to tell their story (at last!). This is not quite true. What they will be able to do is answer carefully scripted questions in a carefully scripted, ritualized way. There is nothing natural about it. And then they will be subject to cross-examination.

Testifying on cross examination is a skill. The key is to reveal only the minimum amount of information necessary to answer the question. If opponent’s counsel asks if you know what time it is (and you know what time it is) the proper answer to the question is “Yes.” If another human being were to ask if you know what time it is, you would tell him the time. But cross examination is not like a conversation with another human being. Why not?

Because in an ordinary conversation we assume good faith. The other person isn’t trying to trick you or hurt you or make you look stupid. He’s trying to learn what you have to say so he can come to a more complete understanding of the world. You can’t assume that when you are under cross-examination. Opponent’s counsel is trying to trick you or hurt you or make you look stupid. And the more you say, the more you are giving him to work with.

We have a natural tendency to explain ourselves. We want to tell our story. We want to be understood. But explaining on cross-exam is a mistake. And it is a mistake because the assumption of good faith is misplaced. The lawyer on the other side is not asking questions because he wants to understand the truth. We have an adversarial system. He is your adversary.

If your lawyer wants you to explain something, she will ask you about it when you are back on re-direct. But even then, you will not be able to tell your story.

This is because of the rules of evidence. If you are an expert, you can testify about your opinion as long as you stay within your area of expertise. If you are not an expert, you are a fact witness, and you can only testify about facts. You can’t, ordinarily, testify about what you have heard. That would be hearsay. And you can’t, ordinarily, testify about what you think. That would be opinion. You can only testify in response to questions from counsel. There will be objections and motions and procedures conducted in a language you do not speak. Rulings will be made that you do not understand. And throughout the process a smart person who does this for a living will be trying to make you look bad.

In the end, a person you do not know and who does not know you will be making an important decision about your life based on the performance of an elaborate dance you have never seen before, do not control, and cannot comprehend.

On top of this there is the problem of lawyers’ compensation. If your lawyer is being paid by the hour, he has an incentive to complicate and prolong the matter. If you pay him on a contingency fee basis, you remove that difficulty, but the alignment of your interests is still only partial. I remember having dinner with a friend who represented the plaintiff in an auto accident case some years ago. He was waiting for the results of an autopsy. The question was whether the deceased had smoke in his lungs. If there was no smoke, he was killed by the crash. If there was, he was burned alive. Without dwelling on it, let’s just say my friend’s interest did not perfectly match that of the dead man’s wife and children.

Finally, there is another problem with attorney compensation. This can be expressed in three words: lawyers eat pie.

Pie is the universal subject of the literature in the field of dispute resolution. Negotiators try to get a bigger slice of the pie. Mediators try to expand the pie. Judges try to divide the pie in a way that follows the law. Labor arbitrators try to divide the pie in a way that follows the language of the collective bargaining agreement and does the least possible damage to the relationship between the parties. What lawyers do is eat pie. Every dollar that goes to pay the lawyers is a dollar that does not go into the pot to be divided by the disputants.

The recent collapse of the cryptocurrency firm FTX provides an illustration. According to the NY Times, so far:

  • Sullivan & Cromwell, which is managing FTX’s bankruptcy, has charged more than $110 million in legal fees and recorded over $500,000 in expenses.
  • Creditors have raised concerns about the hourly rates charged by Sullivan & Cromwell, which reach as high as $595 for paralegals and $2,165 for partners.
  • FTX’s case has cost more than $325 million.
  • In June the FTX fee examiner [another professional who must be paid out of the assets in bankruptcy] noted that the spending up to that point amounted to 10 percent of FTX’s remaining cash.
  • Lawyers, accountants, consultants, cryptocurrency analysts and other professionals have racked up more than $700 million in fees since last year from the bankruptcies of five major crypto firms.

No doubt the lawyers and paralegals at Sullivan & Cromwell work very hard and are very good at what they do. But what they do most effectively is eat pie.

The adversarial system is opaque, frustrating, tedious, ruinously expensive, and voraciously time-consuming. The longer it goes on the more animosity it creates. If you were trying to design a system to maximize dissatisfaction it’s hard to see where you could find room for improvement.