This should be the height of ‘self evident’ but here we are anyway. We’re told it’s bad to be the most litigious nation on Earth – and that’s nonsense. We’re the most litigious nation on Earth because we have the best access to the courts. This is a pro, not a con. Better to fight it out in court than to fight it out on the street because you can’t get into court.
Courts are lazy by nature. Ever see one start business at 8 am like a normal business? No, of course not – everyone is told to show up at 9 and the court will get started around 10. Maybe.
If a court can find an excuse to not hear the case, guess what? The idea behind standing seems reasonable enough – there should be a valid reason to take up the court’s siesta time – but it’s nowhere in the Constitution for danged good reason. It’s just an excuse for courts to get out of doing the job we overpay them for.
I’m not a little biased – I’m a whole lot biased. That doesn’t make me wrong, does it?
But litigation is expensive!
Sure it is, for the insurance companies. Face it, people too poor to afford a consult with a lawyer aren’t going to pursue major legal cases. The oddball case that gets a pro bono lawyer is usually really egregious or the lawyer smells blood in the water.
The rest of the mess is insurance company versus insurance company because Little Johnny can’t stop throwing balls through windows or Dad drove his Mercedes into McDonald’s a little too literally. Lower insurance rates (when was the last time that happened?) are a steep price to pay for lost access to the courts.
Fun fact: you can sue without a lawyer. It’s not often a good idea but it can be done. Courts don’t like this. Partially because watching amateur night is boring and mostly because it means more work for the court. Magically, although you were injured you don’t have standing or didn’t file in time. Never mind that you were in the hospital – a day late is justice denied.
Mind you, the less the courts do, the more lawyers have to charge. The harder it is to get into court, the fewer cases that lawyers can represent. Law business is like any other – you have to make enough profit to at least break even. Kinda hard if most cases never even get a hearing.
What makes a good lawyer? Practice. Not reading law books – any idiot can do that. Not taking way too many classes or studying like crazy people for the bar exam – that just gets you a piece of paper that says you did the things. To be a good lawyer, you have to actually practice law. But we so over regulate the entry into the practice that we get a combination of ‘people good at tests and lousy at application’ and ‘mediocre guy who stuck out all the nonsense.
But, we want real lawyers, not charlatans! You betcha – and being able to sue the socks off the guy who scammed you is a great way to prevent fly by night fake lawyers. The modern world is great – two seconds of playing on a search engine and I know whether or not Bob has a law degree, the certification he claims and what he’s been up to with the kids. Frankly, this is a real business opportunity for those research geeks – and it beats the heck out of highly interested gatekeepers like we use now.
So, what’s all this got to do with immunity? Immunity is just another way courts avoid work. It’s also a great way for a person or institution to be above the law.
Prosecutors have used it for years in their often successful attempts to blackmail or bribe people into confessions. Here, confess to this lesser charge and I’ll grant immunity on the really bad charge. Ignoring for the moment that if the prosecutor thought he could prove the really bad charge in court he probably wouldn’t offer the deal, how is this not an incentive for false confessions? If Bob is facing 20 to life and he can’t afford a schmancy, fancy lawyer pleading to jaywalking instead – even if he isn’t guilty of anything – becomes a very attractive offer.
Sure, YOU wouldn’t plead guilty. You’d just take your chances with a badly paid public defender and hope for justice to be done. But really, a lot of people won’t take that risk. Worse, if Bob is guilty, he’s incentivized to take the lesser charge, get a slap on the wrist and laugh as he leaves prison 15 years early.
This is no way to run a railroad. All it does is make a prosecutor’s and a court’s stats look good. It undermines the rule of law and lets the guilty game the system while punishing the innocent. Immunity allows prosecutors and law enforcement alike to be lazy. They just need numbers – they don’t need to prove guilt beyond a reasonable doubt.
And no, it doesn’t make the world a safer place. It makes the judicial system a joke which means tacking on 25 years for crimes the guilty will plead down does nothing to reduce the crime rate. The innocent caught up in the system often come out hardened criminals. At the very least, they lose all respect for the judicial system. As well they should.
Does your boss reward you for making numbers look good or for doing a good job? Well, we reward prosecutors, law enforcement and the courts for the former. It’s just illusory data on a chart. We feel safer because the local prosecutor has a 99% conviction rate. Trouble is, most of those convictions had nothing to do with the actual crime and only by cheating can you get a number that high.
This is just one of the problems with immunity. We’ll talk more about it next week.
Equality before the law is a critically important component of American governance. No one should have the power to grant immunity to the laws of the land. No one.
