Inside Job

With the Bench Cozied Up to the Bar, the Lawyers Can't Lose - This is a lucid and accurate column on the massive inefficiency in the legal system citing self-regulation by the legal profession (including judges) as the cause. Great stuff, as far as it goes, and so brief that I urge you to read it if you have a hard copy of the NY Times. It's a Times Select item so you won't get far with the link. As a lawyer who worked in-house for a corporation I was not getting paid by the hour, so I had an inside view of many problems, with no incentive to stay quiet and keep billing. Judges at every level are reluctant to enforce any discipline against delay or frivolity, They try to unclog the disaster this creates by forcing settlements, even when one side of a case shows little merit. After a few months of pre-trial skirmishing an entitlement mentality takes hold - plaintiff's lawyers (lets picture a husband and wife team, Sue and Bill Thensettle) need to get something, look at all the work they have invested in the case. Wait - Sue and Bill advised their own client to file suit on a lousy case, forced the other party to waste countless hours (which convert to many $$) on motions and depositions which did nothing but confirm the fact that the case was lousy and for this process they deserve a fee? If a dentist pounded on an infected tooth until you paid him to stop, someone would listen to your complaint. A court will just encourage you to pay to stop the pounding because, given the system the judges have created, it's the only way to clear the calendar and stop wasting the court's valuable time.

The "Cozied Up" column covers only part of the story. Legislatures have some authority to regulate judicial processes and procedures, they don't do enough with it. Why not? Trial Lawyers are a disciplined, wealthy lobby. They have a vested interest in preserving a system that lets them bill by the hour through lengthy proceedings or garner contingency fees based on settlements achieved using two points of leverage - fear of the jury and fear that the judge will allow any expert evidence, no matter how unscientific, to reach the jury. Courts can cover some incremental costs with user fees, avoiding the legislative scrutiny that a more complete budgeting process might trigger. Lawyers have improved self regulation in areas like protecting clients from embezzlement and clear cut malpractice, keeping the spotlight off fundamental inefficiencies in the litigation system. Finally, in the vast majority of cases the individual lawyers are acting in their client's best interest each step of the way in a given case, even though the result is high bills. The judges put a great premium on fairness over efficiency. They reduce the chance of reversible error by letting nearly everything go to the jury and they really believe that settlements are the best way out of the morass this creates, even though this path ultimately invites more and more litigation. The road to legal inefficiency is paved with good intentions.

Alberto Gonzalez has just resigned. Maybe there is fire as well as smoke in some of the unofficial e-mail surrounding the earlier firings of Assistant Attorneys General, politically directed investigations, etc. Somehow I don't think Karl Rove's book will cover this in detail. We will look for any interesting developments before posting tomorrow.