Our Efficiently Inefficient System of Injustice

Stunning news arrived from the world of sports last week.

http://www.si.com/nfl/2015/09/01/tom-brady-new-england-patriots-deflategate-ruling

New England Patriots quarterback Tom Brady’s four-game suspension was nullified by federal judge Richard Berman in a ruling announced Thursday.”

It isn’t the ruling itself that was stunning. I have no particular view on Tom Brady’s balls. What is stunning is how long the court case took.

Commissioner Roger Goodell upheld Brady’s suspension on July 28. Brady and the NFL each filed lawsuits in federal court, the league seeking to uphold Goodell’s decision and Brady seeking to overturn it. Judge Berman pushed the two sides to consider a settlement, but they failed to do so by a hearing on Monday.”

Which would be August 31st. So in just three days more than a month cases were prepared, evidence was presented in court, and a possible settlement was discussed. And when that didn’t happen the judge ruled the next day. How does that compare with the usual practice in our efficiently inefficient system of injustice?

Just a warning: this post takes me out of my areas of expertise, and is based more on my impressions than anything else. Although I will present the facts as I can find them.

My personal experience with the courts, fortunately, is limited to jury duty. I was seated for a case that had gone on not for a month, or a year, but for a decade. A simple slip and fall, a home health aide suing a landlord. Or rather the landlord’s estate, because the landlord had died before the case reached the courtroom.

The jury heard one witness give testimony – and suddenly the case was settled and we were told to go home. The judge said this shouldn’t give us a bad impression of the system because we had played a useful role – picking a jury often leads to a settlement.

So why didn’t they do it 10 years earlier?

Some years later I was put in a jury panel for a second, similar case. I was asked if I were every put on a civil jury, and what happened. I told the story, and the two attorneys – one for the plaintiff and one for defendant, could be seen giggling under their breath and desperately trying to suppress laughing out loud. I wasn’t picked for the jury, and got to go home.

Is that the norm? I checked the annual report of the Chief Administrative Judge of NY State to find out.

http://www.nycourts.gov/reports/annual/pdfs/UCS_AnnualReport_2013.pdf

The first phrase of the report was this.

Though still grappling with a decline in resources.”

OK, I know that isn’t necessarily true. According to Census Bureau data in FY 2012 the “Judicial and Legal” function for the State of New York had more resources, per $1,000 of personal income of NY State residents, than the average for state courts across the U.S. And while spending on most things other than Medicaid, pensions and debt service has been going down, spending on this function had gone up from FY 2002 to FY 2012, when measured per $1,000 of the personal income of state residents.

https://larrylittlefield.wordpress.com/2015/06/14/bureaucracy-census-of-governments-data/

I say it isn’t necessarily true because the Census Bureau’s “Judicial and Legal” function also includes the Office of the NY State Attorney General, and perhaps some other agencies, as well as the courts. It is therefore possible that New York’s state spending on the Attorney General is high relative to other states, and has increased, while spending on the Judiciary is relatively low, and going down. But that’s not the way to bet.

The U.S. average for FY 2012 was $1.52 in state spending on the Judicial and Legal function per $1,000 of the personal income of U.S. residents, down from $1.58 in FY 2002. The figure for New York State was $2.73 per $1,000 of personal income, or nearly double the U.S. average, eighth highest among all U.S. states, and up from $2.56 in FY 2002. And that Judicial and Legal spending does not include pension contributions on behalf of NY State’s workers in this category. Whereas the personal income of all state residents who are paying does include an estimate of their non-wage benefits.

But how long do the state’s court cases take? According to the report:

DURING 2013, THERE WERE 504,910 CIVIL FILINGS IN SUPREME COURT, including 199,855 new cases, 257,555 ex parte applications and 47,500 uncontested matrimonial cases. A total of 497,765 matters reached disposition.

Three standard and goal periods measure the length of time from filing a civil action to disposition.

The first or “pre-note” standard measures the time from filing a request for judicial intervention (RJI) — when parties first seek some form of judicial relief — to filing the trial note of issue, indicating readiness for trial.

The second or “note” standard measures the time from filing the note of issue to disposition.

The third standard covers the entire period from filing the RJI to disposition.

The respective time frames are 8-15-23 months for expedited cases; 12-15-27 months for standard cases; and 15-15-30 months for complex cases. In matrimonial cases, the standards are 6-6-12 months; and in tax certiorari cases, 48- 15-63 months.

My first response is that’s way too long. Two years for an expedited case? More than five years for a tax case?

My second response is to wonder what percentage of the time the goal met, and what the actual average timeframe for cases is. The report contains data on the number of cases filed and disposed of, but no data on their average length.

Long cases concern me, because based on what I read in the newspaper and other anecdotal information, it seems that they allow dishonest or overly entitled people and organizations to use the court system as a tool of injustice. Those with more wealth and power can use the long duration and high cost of litigation as a weapon against less well off innocent parties. Parties for whom the money paid to the lawyers would be their own, not that of some organization, and for whom days off from work are scarce and valuable.

Rich and powerful defendants, for example, can do something dishonest to a victim, and then string out the resulting court case in an attempt to exhaust the plaintiff’s time and money. “So sue me!”

And rich, powerful or organized plaintiffs can file unreasonable lawsuits, hoping the defendants will pay off despite the unfairness of the claim to avoid the greater cost and disruption of the lawsuit itself.

In each case, stringing out the case is a weapon that, as it happen, might also inflate legal fees. Lawyers might like that. Judges seem to be going along with it. After all, they are lawyers too, and perhaps have an affinity toward the financial interests of their own kind.

The longer the time court cases take, the greater the advantage for the wealthy and powerful, regardless of their justice of their cause. The system’s response to this imbalance is pro bono representation, as well as contingent fees in tort litigation. But pro bono resources are not unlimited, and are more likely to be used in criminal cases.

And the contingent fee system discourages legal representation in cases where the sums of money may be small to the lawyers, but not to the person wronged. This allows those with less deep pockets to get away with things, simply because of the high cost of pursuing through the legal system relative to a judgment they could pay. Which then becomes a reason not to hire, do business with, or rent an apartment to someone with less deep pockets, in self defense.

Then there is the political lawsuit.

Government policy often involves the allocation of scarce resources, whether money in a state or local government budget or space on the street. These decisions can take place in an open process where all interests and needs are considered. Or they can take place in backroom deals in which the powerful and entitled take money off the top, leaving everyone and everything else to scramble for what is left. The reason those deals take place in backrooms is because they cannot be justified in an open, democratic process.

Elected officials in executive offices and interest groups have learned to use the courts as a tool to grab resources in special deals. How? The interest group files a lawsuit demanding more for itself (and thus leaving less for everyone else).   It strings out the lawsuit until the current Mayor or Governor is ready to make a deal in exchange for political support, or a new one is elected in part thanks to that political support.

And then there is a settlement. One that allows the Mayor or Governor to claim they didn’t decide to allocate more money to an interest that already gets more money, leaving less for everything else. The courts “made them do it.” And with the settlement, the court records are sealed so the public can’t even see what happened.

Lawsuits are used as anti-democratic means to allocate space was well as money. Consider the lawsuit against the Prospect Park West bike lane, which was approved after a long public process with the support the local community board and member of the City Council. Now in appeal, the case has gone on for more than four years, and is still active and yet not moving forward. Why?

http://brooklynspoke.com/2015/03/12/unhappy-birthday/

“It’s almost as if the lawsuit has taken on a life of its own,” said McClure.  “We’re not sure who the lawyer is, or which firm is representing the plaintiffs, or who the plaintiffs even are at this juncture.  No one knows when the next hearing might be.  If any of the so-called ‘Neighbors for Better Bike Lanes’ or ‘Seniors for Safety’ are still paying attention.”

The Prospect Park West bike lane is something the majority of the people are for, but the state’s political/union class, which drives everywhere, is mostly against. The state judiciary is one of the last pockets of old time political patronage in government. Judges are “elected” with only one name on the ballot, after getting put on that ballot in a political process controlled by the state legislators, many of whom are under indictment, and their crowds.

There might be some pressure for a judge to rule in a way their crowd, their political benefactors, might prefer.   But the plaintiffs do not have a case they can win on the merits. A ruling for them could be embarrassingly reversed. What to do?

Don’t rule. String it out until a new Mayor, elected with the support of those opposed to the bike lane, reaches “settlement” to rip it out. The new Mayor thus never makes a “decision” to rip it out. Blames the courts. But neither does the judge. It just happens, in the shadows.

Perhaps the current Mayor has reached a limited accommodation with the powers-that-be. He won’t make that settlement, at least not until he is re-elected to a second term. But he won’t force the lawsuit to end in a judgment either, keeping the possibility of a “non-decision” in the shadows alive.

Perhaps this, and all the indictments, might motivate you to run against one of those state legislators. But the courts can be used against people who dare to run for office against incumbent politicians too.

Imagine you collect all the required signatures, and follow all the rules, to be placed on the ballot. But the incumbent, using money collected from the special interests that sponsor them, sues to have you thrown off the ballot anyway. Whether your signatures were valid and the rules were followed is not what matters. What matters is how many days you are forced to spend in court rather than campaigning, and how much money you are forced to spend on lawyers to defend yourself.

What if there was a law that someone had to pay $60,000 to run for public office? Then the only people who could run for public office would be the wealthy, and those backed by wealthy interests. But if you have to be prepared to pay $60,000 in legal fees to stay on the ballot, the effect is the same.

None of these injustices would work if cases were decided expeditiously. The time and money cost of litigation would fall, and people and organizations whose strategy was based on avoiding judgment while the meter kept running would know they had to face it.

Justice delayed is indeed justice denied, and people less important than Tom Brady and interests less powerful than the NFL deserve it. I may not have the facts, but that in itself is a problem. If nothing else, the actual time required to complete cases, and the reasons they take so long, should be reported. So people can see the evidence, and make their own judgments about the courts.

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