Tuesday, March 15, 2011

NY Chief Judge wants $ to defend the poor in foreclosure

Bob Hurt: Equality in Court
Anybody who has fought a legal battle knows the toll it takes emotionally, in time, on relationships, and in money.

Whimsy often Rules Court Battlegrounds
Furthermore, the courts constitute a modern battlefield.  There adversaries pierce one another's legal armor with lances of well-organized presentation of facts, keen knowledge of applicable statutes, regulations, rules of procedure and evidence, timely objections, and impeccably researched case law.  The adversaries parry and thrust in a legal landscape that resembles a mine field administered by a cantankerous bipolar judge who may suffer from PMD, PTSD, Alzheimer's, and hot flashes all at once, flouts the constitutions, rules, and common sense at whim, and just yearns for a reason to sanction a litigant for some impropriety, or tossing one into jail for contempt.

Who on God's Green Earth has such ability in court where the legal arrows and bullets whiz by, wounding, and barely missing the heart or brain of the case?

The Nature of A Top Court Champion
Well, to start with, a "knight in shining armor" with a photographic memory, flawless reasoning, years of study of law, limitless research and preparation time, and a legally sound case.  And it helps if the knight knows the judge personally as a friend, and the judge doesn't suffer from a "bad-hair" day.

Now, how many poor people, who might find themselves as litigants, have such characteristics.


No Such Attorneys for the Impoverished 
First of all, such a litigant as I have described above must have an IQ in excess of 115, and most poor people have 20 to 30 points lower than that. In fact, most litigants with the above characteristics probably have an IQ in excess of 145.  We would refer to them as geniuses.  People with that high an IQ comprise .135% of the population.  310 million x .00135 = 418,500.  So less than half a million Americans have that much intelligence. 

People that smart almost never suffer from poverty, and almost never find themselves in court defending against foreclosure.

Thus, only professional combatants on the field of law typically have such characteristics as I have described above.  And a poor person must hire one of them as a modern champion to joust at his side or in his place in the courtroom competition.  Unfortunately, such smart champions don't fall into the category of "cheap dates."  The poor simply cannot afford to hire them as champions.

Leveling the Playing Field So Courts Can Rule Justly
In order to "level" the playing field of courts, society must employ some other equalizer that will make truth and justice the only issues of relevance in the legal joust.  How shall society achieve that when so many crooked, deranged, or megalomaniacal judges sit on the bench, and society has no functional tool for removing them for abusive behavior?  How shall society do that when public schools offer zero education in principles of law, rules, regulations, and ideals of good government?  How shall society do that when its mores allow the stupid freely to intermingle with and become the feckless victims of the smart, including smart lawyers?  How shall society do that when attorneys and law firm of such widely varying talent and connectedness ply their trade, essentially out of reach to the poor?

Lippman:  Lawyers for the Poor
New York's Chief Judge Lippman acknowledges the problem and claims that if he doesn't start solving it, particularly in the glut of foreclosure cases, America's legal system will collapse into third world status.  Smart lenders will strip stupid (and poor) homeowners of their houses through foreclosure.  Lippman suggests providing legal services to the poor at government expense.  By this we can only presume he refers to effective and competent legal services.  He will cut his humongous budget, but at the same time, he demands MORE spending on free legal services.

I agree, except for one issue.

Virtually EVERY non-attorney needs an attorney as a champion in legal battles.  Or, EVERY non-attorney must have an education and practice in law and rules.  Well, I started my education in the law rather late.  I have learned a lot in the past 8 years.  But I still don't have knowledge equivalent to what I would obtain in an accredited law school, and I don't have knowledge of the legal landscape which no law school can or could teach.  And the idea of facing off against a seasoned prosecutor in a hanging judge's court, even with defense counsel at my side, SCARES THE BEJESUS out of me.

Hurt:  Equal Lawyers for Every Non-Attorney
I maintain that two adversarial litigants ought to have attorneys of roughly equal ability, or no attorneys at all, FREE (at government expense).  Courts should determine requisite attorney/litigant skill by the amount of money or property at stake.  In all contests against the government, the court should supply an attorney of skill equal to or greater than the government's attorney.  If government has NO OTHER legitimate function, it has the function to make courts serve their purpose - just and merciful resolution of disputes without violence, bloodshed, and vendettas.  Providing litigants with equivalent legal counsel constitutes the only way to approach and achieve such fairness.

Except for one thing.

Hurt:  A Retread System for Correcting Bad Judging
Society needs a rating system for judges.  Professional courtroom monitors (court watchers) should observe the behavior of judges and rate them during and after the court day.  If the monitor observes the judge flouting precedent, rules, laws, or constitutional obligations, or allowing an attorney to do so, the "system" should remove the judge and cycle the judge through retraining and therapy before returning the judge to service.  Judges should undergo personal psychiatric evaluation every 45 days to spot behavorial trends and schedule the judge for correction.  

I do not support removing competent judges from the bench for any reasons other than poor psyche or irreparable corruption.  For this reason society should remove all judges from service during menses or other periods of physiological or psychological stress that might adversely affect judgment or fairness.  A uniform bonding law should require judges to pay performance bond fees out of their own pocket, make it easier for victims of judicial abuse to file claims against the bonds for injuries, and instances of abuse should increase the fee.  When the fee becomes intolerable most abusive judges will simply quit.

Lippman Explains Why

Acknowledging New York's deep fiscal crisis, NY Chief Judge Jonathan Lippman agreed to cut his $2.7 billion budget.  However, he demands $40 million (up from $15 million) to provide legal services to poor New Yorkers facing serious legal problems like foreclosure, eviction, and domestic violence.  Federal budgeteers intend to reduce support for such programs, so the state must pick up the slack

Lippman faces political opposition.  He admits that people need help and society will distrust the judiciary if judges don't provide it.  They have the constitutional duty to enforce guarantees of people's and states' rights, and restrictions on government power.

He complained of "standing-room-only, courts where 99% of the frightened litigants face eviction and debt collection without assistance of counsel.  These people, he declares, fight daily for jobs, health care, food, housing, and possession of their children.

The March 13, 2011 NYT quoted him this way: "What is at stake, is nothing less than the legitimacy of our justice system,"  He complained that the rule of law "loses its meaning when the protection of our laws is available only to those who can afford it."  He went on to explain how free legal services will ultimately reduce delays and costs.  See the NYT story at this link.

Conclusion:  Makes Sense, Now for the Judges...
Maybe Lippman has a good idea here.  He should extend his thinking to a method of correcting bad behavior and incompetence of judges.

Bob HurtHome Page -  Blog - (727) 669-5511
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