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Wednesday, July 14, 2004

I'm Coming Out

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At one point or another, we've all been in denial about some aspect of our lives. Dork pointed mine out for me. "You're bi-legal." he says. "Just admit it." I guess that's right. I do go both ways.

My former contracts prof (lets call him His Honor) thinks that I am disingenuous. I have the greatest level of respect for what His Honor thinks. So this assessment stings. Disingenuous? I thought I was bright and inquisitive. Further, I honestly believe that in order to really study the law you have to go both ways. Its an intellectual gymnastic routine that leaves you a well rounded student of the law and not just an empty talking-head, asserting opinions which you do not understand. Besides, what more satisfying endeavor can there be than to prevail in an argument when you know you had the weaker side? Every body loves it when the underdog wins.

So, I'll stand by my bi-legality. (I considered bi-legalism but this does not rise to the level of an ism. Its just an ality) I might even try to recruit a few people in my class. You'll recognize us by the rainbow colored scales of justice tattoos.

To serve a valid and necessary purpose in the law, you do not  have to be the RIGHT guy or the innocent guy or the wounded guy. (As opposed to the WRONG guy or the evil guy or the committer of mayhem guy) Our adversarial system of justice has just left a lot of people with a bad taste in their mouths. It seems so focused on conflict that we've lost sight of the over riding principle involved.

TRUTH seeking.

Yep. That's the point of our courts of law. They are tribunals established with the ultimate purpose of finding out the truth. (Who killed Mr. Green in the conservatory with a candle stick?) Once we know the truth the rest is easy.

Its the manner in which we try to come to the truth that has tended to muddy the water. What we do is really the intellectual equivalent of boxing. With the judge as referee. (Picture court reporters in skimpy bikinis parading around with placards designating what point we are at in the trial)

Summary judgment is the civil TKO. It is a one-two punch that takes out the other guy before he even gets his fancy robe off. I guess the same can be said for the criminal plea bargain, but that's more like the other guy just conceding the match with out even stepping in the ring. If we get past opening argument then it is just one guy wailing away at the other until someone has hit someone hard (read- persuasively) enough to end the fight. This is the extent of my boxing knowledge so I'll end the metaphor here, but I am sure you get my meaning.

It's easy to lose sight of the ultimate goal. No, it's not winning. It's not The People prevailing over The Defendant. It's not The Defendant prevailing over The Man. It's certainly not the multi-millon dollar pot-at-the-end-of-the-rainbow jury verdict.

It's The Truth.

Once we know the truth then we can decide what to do about it. We'll punish someone, or repay someone, or get your grandma's wedding ring back. We'll hold someone to their contractual obligations or we'll let someone off the hook. We'll do the right thing once we know for sure what the right thing is. We're only going to know that if we get to the truth.

This begs the question I know you're asking, whether or not we have to have adversity to seek truth. Some people don't think so. There are other systems where the court does all the work of sorting out the truth for itself. Everyone else acts as friends of the court, pointing out what they think is important but leaving it all up to the judge in the end. This is a pleasant way to do this business. But it is seriously lacking in zeal.

The prospect of adversity forces you to do the best job you can. Prosecutors build strong cases, which result in certainty that a convicted defendant is in fact guilty, because they know the defense is going to attack the weaknesses. We can't fault the defense for this. It played it's role in bringing out the truth. And when we can't make that jury certain that the defendant is in fact guilty, we let him go. It works the way it is supposed to the vast majority of the time.

There are a few that get overwhelmed with the adversity, with the game. Those attorneys that win at any cost because they've lost sight of truth or never cared about it to begin with. As for those self-zealous few, I guess they also serve a purpose. They stand as examples of how it can go wrong to remind the rest of us to stay vigilant. Isn't it always the exception that proves the rule?


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