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Critiques of the Judiciary
 
"Every year produces a fresh crop of scoundrels and renewed doubts about the ability of the profession to police itself..."
 
--Anthony T. Kronman

Justice: An Impossible Dream?
The 11-year ordeal of Chester J. Chalupowski at the hands of unscrupulous lawyers scheming to gain control over his estate led Dr. Margaret Koch-Nabialczyk to point out that many books by legal scholars had warned of the crisis that is now washing over our judicial institutions, entrapping and destroying the lives of countless citizens who turned to the courts hoping to find protection and relief from injury.
 

 
The Bigger Picture

MARGARET KOCH-NABIALCZYK, MD PhD

For the first five years of his legal ordeal, Chester considered himself a lonely, unfortunate victim of a mean, unethical lawyer, supported and enabled by a web of his unscrupulous "brothers" and "sisters" utilizing to their own benefit the numerous tools of the ruthless machine of the legal system. However, in the summer of 1998, by some kind of divine serendipity, Chester stumbled upon a book bearing the intriguing title, Jurismania: the Madness of American Law, written by Paul F. Campos, a Professor of Law at the University of Colorado. Chester, by no means a bookworm, devoured Campos' difficult treatise while growing increasingly amazed, in fact mesmerized, by its relevance to his own experience. After the first five years of his anguish, Chester started seeing the legal torment imposed on him and his family against a backdrop of an enlightening, though menacing, bigger picture.

Chester, an all-American idealist never anything but proud of his country, was shaking his head in disbelief. Thinking, "Jurismania, no matter how depressing, is only one book," Chester set out to search for 'the other side of the story' assuming that there was one. In an effort to find 'some good news' (one of his favorite clichés), he went on line, checked the catalogues of all local libraries, spent long hours sipping coffee, snuggled into a small cozy couch at the North Shore Mall Borders Books. Shortly he had assembled a two-foot-high stack of books written by legal scholars, practicing lawyers, lawyers-turned-journalists, and other open-minded non-fiction writers. Just looking at the disconcerting titles, Chester had an uneasy feeling that there was no good news there. Nevertheless, he put the books in chronological order according to the year of publishing and began his search for answers.

It seemed that the troubling titles started popping up on bookshelves across the country by the early 1970s. In 1971 Random House published Law against the People: Essays to Demystify Law, Order, and the Courts, by Robert Lefcourt. In 1976, a young Ralph Nader and his co-author, Harvard Law School graduate, Mark Green, edited a collection of alarming essays, Verdicts on Lawyers (T. W. Crowell). In 1977 Anne Strick, a prolific fiction and non-fiction writer, published her now apparently forgotten, yet quite visionary for its time, Injustice for All: How Our Adversary System of Law Victimizes Us and Subverts True Justice (G. P. Putnam's Sons). In 1978, J. K. Lieberman tried to alarm us about lawyers' "unethical ethics" in his book entitled Crisis at the Bar: Lawyers' Unethical Ethics and What to Do about It (Norton). In 1980, Philip Stern, a Harvard graduate and special investigative reporter for The Washington Post, who at age 49 enrolled as a freshman at Georgetown University Law School, made a daring attempt to put lawyers on trial in his book actually entitled Lawyers on Trial (Times Books).

In 1989, Gerry L. Spence, once a famous, self-proclaimed 'country lawyer,' took on the whole legal system in an effort to "excite and illuminate the millions of Americans who felt frustrated and betrayed by their justice system," in With Justice for None: Destroying an American Myth (Times Books). In 1991, Walter K. Olson, called by Amazon.com, "the legal world's foremost whistleblower," warned us that the lawsuit industry (according to Olson, "a civil war in very, very slow motion") was seriously crippling America, in his book The Litigation Explosion: What Happened when America Unleashed the Lawsuit (Dutton).

By the mid-1990s the frequency of disturbing titles showing up on the market visibly gains momentum as more and more authors eagerly express their dreadful concerns. In 1993, a noted legal scholar and educator, Anthony T. Kronman, the current Dean of Yale Law School, states in his book, The Lost Lawyer: Failing Ideals of the Legal Profession (Harvard University Press) that the crisis in the American legal profession, "threatens the collective soul of American lawyers. [] This is a catastrophe for lawyers. Beyond that, it is a disaster for the country as well." On the very first page of his book, Kronman states: "Every year produces a fresh crop of scoundrels and renewed doubts about the ability of the profession to police itself, along with familiar complaints about the undue power of lawyers (which any democratic society is bound to regard with suspicion)." This diagnosis of "legal pathology" is vehemently confirmed by Mary Ann Glendon, a Harvard University Professor of Law, who expressed her concerns in her book entitled A Nation under Lawyers: How the Crisis in the Legal Profession is Transforming American Society (Harvard University Press). In the Introduction to her book, published in 1994, Glendon states: "It is precisely because of the unique role of law and lawyers in American life that a significant advance of arrogance, unruliness, greed, and cynicism in the legal profession is of more concern than similar developments in, say, banking or dentistry. [] A breakdown in self-discipline among lawyers, then, cannot be without consequences for the wider society."

A similar concern for the degradation of the legal profession is expressed by Sol M. Linowitz, a Washington, D.C. attorney, former general counsel and chairman of the board of Xerox, in his 1994 book The Betrayed Profession: Lawyering at the End of the Twentieth Century (Scribner). Also in 1994, Philip K. Howard, a lawyer practicing in New York City, published his book, The Death of Common Sense: How Law is Suffocating America (Random House). Howard's "distressing, disturbing, devastatingly detailed indictment" (Amazon.com) of the American legal system called by reviewers "a blood-boiler" and "a lethal cannonball of a book," stayed on the Publishers Weekly bestseller list for 25 weeks. In 1996, Ralph Nader (likely disappointed that his collection of alarming essays, Verdicts on Lawyers, published 20 years earlier, did not make much difference) teamed up with a Californian lawyer-writer, Wesley J. Smith, to write No Contest: Corporate Lawyers and the Perversion of Justice in America (Random House). On the front flap, the editor of the book expresses alarming concerns: "There is a widespread belief among Americans that something is deeply wrong with our legal system [dominated by] rapacious thieves with LLDs. But how has a profession whose ideals are integrity and equality of all sunk so low? Can this slide be reversed?" One of the book's reviewers, Gloria Steinem, states: "No Contest makes Watergate and the O.J. Simpson trial look inconsequential. [] Ralph Nader and Wesley Smith have given us the good research and deep outrage we need to create social change."

In 1998, the outrage and call for change inspired not only Professor Paul Campos, but also Max Boot, a young investigative reporter for the Wall Street Journal and recipient of the Gerald Love Award for Distinguished Business and Financial Journalism. Boot coined the term "juristocracy" in his highly acclaimed treatise entitled Out of Order: Arrogance, Corruption, and Incompetence on the Bench (Basic Books). Robert H. Bork, a former federal appeals court judge and the best-selling author of Slouching towards Gomorrah and The Tempting of America, states in the Foreword to Max Boot's book: "Men and women given unaccountable power will often use it to further their own ends, not ends of the polity which they exist to serve. [] Our courts are behaving badly and the public, to the degree it can be brought to understand that, will exact force for reform, a reform that must be structural as well as intellectual and moral."

After navigating his way through his two-foot-high stack of books, Chester Chalupowski, deeply disillusioned, found an answer to his question - Paul Campos was not alone in his doomed vision, there was no 'good news,' and there was no other, brighter, side to the story told in Jurismania.

Recently, this sad conclusion has been confirmed by more authors courageous enough to tread on this treacherous ground. In the summer of 1999, Chester, now an expert on the topic, noticed that Ballantine Books announced The Moral Compass of the American Lawyer: Truth, Justice, Power and Greed, written by Richard Zitrin and Carol M. Langford (both professors of law at the University of San Francisco, as well as practicing lawyers). The moment the brand new copy arrived at the Beverly Public Library, Chester was the first to check it out. While the librarian was still scanning the barcode, Chester was already reading the publisher's comments placed on the front flap: "These are perilous times for Americans who need access to the legal system. Too many lawyers blatantly abuse power and trust, and engage in reckless ethical misconduct, grossly unjust billing practices, and dishonesty disguised as client protection."

The contents of the book thoroughly confirms the statement on the cover.

Even more alarming is one of the most recent efforts to bring the crisis in the American legal system to the public's attention made by Catherine Crier, a former Dallas lawyer and judge, turned Emmy Award winning TV host and one of the most respected legal journalists in the nation. In 2002, Crier published her book, The Case against Lawyers: How the Lawyers, Politicians, and Bureaucrats Have Turned the Law into an Instrument of Tyranny - and What We as Citizens Have to Do About It (Broadway Books). According to the publisher, Crier "describes an American legal system dangerously out of control - and finds the lawyers guilty as charged. [] She now confronts a profoundly unfair legal system that produces results and profits for the few - and paralysis, frustration, and injustice for the many. []" The Broadway Books Editor assures us: "The Case Against Lawyers will make readers hopping mad. And it will make them realize that the only response can be to demand change. Now."

While it may be difficult to ascertain whether Crier's book, or any other of the aforementioned books for that matter, made the readers "hopping mad," one thing is painfully apparent - all these books (and many more from the 'Chester's list,' which were not mentioned here) did not make any difference as far as the condition of the American legal system is concerned. "The paralysis, frustration, and injustice for the many," complained about for the last 30 years is getting more and more rampant, and it seems to be here to stay. All these painstakingly researched and masterfully written books (some of them as engrossing as good fiction) have not brought about any change, and apart from documenting the crisis, did not have any significant impact. Each of them ends with some suggestions for a reform of the legal system. But, as Paul Campos noticed in his Jurismania, " almost nothing recommended by well-intentioned academics ever happens." All these excellent books usually do not make bestsellers' lists, unlike the ones that deal with specific juicy and emotionally charged cases (e.g. A Civil Action, by Jonathan Harr, or all the accounts of the O.J. Simpson trial, and other high profile criminal cases). Therefore, the message of "well-intentioned academics" does not get into the general public's consciousness.

In the Foreword to Max Boot's book, Robert Bork states: "[] laymen rarely have a complete understanding of what is taking place and those lawyers who do, by and large, become cynically accepting of a system they do not admire but have learned how to work, or at least to live, with." Lawyers' complacence is unsettling. Robert W. Gordon, a Stanford Law School professor and a reviewer of Anthony Kronman's book, states: "If lawyers could spare any time to read, The Lost Lawyer [or any other of these books] should really make them sit up and take notice of what has happened to them."

Practicing lawyers shrug these concerns off, and preoccupied with playing the system well (i.e. to their own advantage) they would never waste time reading all these alarming treatises. After all, to whom would they bill the hours spent on the reading?

Only people like Chester Chalupowski of Salem, Massachusetts, deeply wounded and traumatized by the injustices of the justice system, but still struggling to make some sense out of the chaos and to see the bigger picture, take the time to explore the matter, even if there is no good news, especially, if there is no good news.


Excerpted from an essay by Dr. Margaret Koch-Nabialczyk, circulated on the Internet December, 2004.  Dr. Koch-Nabialczyk lives in Beverly, Massachusetts and can be reached by e-mail at mdphdjd@gmail.com.  A full description of the Chester J. Chalupowski case can be found at http://cesarlebel.blogspot.com.
 
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