Blog No. 126 

December 3, 2020 

Fixing America – Idea 21 – Part 2 

Reading Time: 7 Minutes

By Mack W. Borgen

University of California at Berkeley (Honors, Economics); Harvard Law School; National Award-Winning Author, The Relevance of Reason (Volumes I and II) (2013) and Dead Serious and Lighthearted – The Memorable Words of Modern America (Volumes I,  II,  and  III (2018-2019).

My Resolution for the Year: To write shorter blogs. Part 1 on this subject (Blog 125) was posted on Dec. 1, 2020.  

For a “cleaner” / non-email presentation of this and my other blogs, essays, and articles, please go to my website at https://www.mackwborgen.com/ .

Introduction

Over the last two years, I have presented a wide-ranging set of ideas for “resetting” and “fixing” America. This blog is Part 2 of Idea No 21 in this “Fixing America” series of articles. 

We Attorneys Are a (BIG) Part of America’s Problems

Part 2

Background Summary as presented in Part 1 of article (Blog 125, December 1, 2020). This author has practiced law and written about social, economic, and political matters for many years. With that experience, I hope to address the roles (and abuses) of attorneys from the perspectives of both an attorney and a writer/social commentator. In Part 1 of this article, it was noted (1) that, unquestionably, there are many any conscientious, dedicated, competent, and honorable attorneys who provide essential legal services for their clients – and in doing so, for our society and its economy, and (b) that many of the issues raised in this two-part article could be resolved merely by changing America’s legal practice so that attorneys’ fees are paid by the losing party. However, since that significant awarding-of-attorneys-fees change is unlikely to soon occur, other approaches as here discussed are necessary.

In Part 1, three threshold problems were identified. First, there are too many attorneys in our country. Second, there are too many laws in our society. Third, there is far too much litigation in our country for many reasons including the fact that (a) any good attorney can mold a claim out of almost any set of facts, (b) litigation is too often used as a tactic of negotiation, intimidation, or even retribution, (c) even though the final litigation commencement decision is that of clients, attorneys too readily acquiesce—or even encourage, litigation as a course of action, (d) attorneys and their clients too often blindly believe that everyone deserves vigorous, committed counsel and “their day in court,” and, lastly, (e) although states have various litigation containment mechanisms, such abuse of process or vexatious claimant statutes are rarely invoked by the courts.

Part 1 closed with the following statement – “….Americans too often ‘abuse’ the legal system and attorneys too often are complicit in the filing of baseless Roy Cohn-type lawsuits for purposes of harassment, intimidation, negotiating position, retribution, spite, and even whim.”

Ideas 

Idea 1. Change Legal Curricula and CLE Ethics Courses. Legal ethics and professional responsibility classes are taught both in law school and as a part of state continuing legal education (“CLE”) programs. These courses traditionally focus upon matters such as the standards of representation, conflicts of interest, management of trust accounts, and avoidance of malpractice claims. However, the scope of such courses must be changed. Such courses should explain the right, and sometimes the duty, of attorneys to decline acceptance of a case. For most attorneys, this will require a change of perspective as well since, in most instances, such declination of representation may not be in the attorneys’ immediate, short-term financial interests.

However, filing a materially baseless claim is basically a fraud upon the court and upon the other party or parties. And wholly apart from the plaintiff/claimant, the attorneys’ complicity in such fraud should not be overlooked. Once again, this problem could partially be addressed by merely awarding attorneys’ fees to the prevailing party, but until this is done, then attorneys themselves must start stepping forward in their rejection of baseless (or more technically, materially baseless) claims. 

Idea 2. Narrow the Societal Mantra of One’s Right to Their “Day in Court” and Change Society’s View of the Use of Litigation Itself. Societally, we must start recognizing that not everyone should have their “day in court” – consuming the resources of the judicial system and imposing undeserved and costly burdens upon multiple other parties. Furthermore, the mere filing of a lawsuit cannot be seen, by itself, as somehow legitimizing one’s claims if such claims are baseless.

The first well-known dirty secret is that the amount of litigation in this country would drop significantly if litigious clients were turned down by responsible attorneys and had to turn to Better-Call-Saul, strip mall attorneys rather than dressing up their supposed cases with thick filings and the retention of big firms.

The second well-known, but rarely discussed, dirty secret is that a great amount of litigation could be avoided by once again teaching and embracing the reality that there are powerful distinctions to be made between that which is legal and that which is ethical; between that which is legally permissible and that which is morally acceptable. Greed, even if lawful, may not be “good.” And the writings of Milton Friedman have been taken too far — raw greed and the unchecked pursuit of profit are not always good for our country. It is easy to dismiss these concepts — and this entire discussion — as ethical discussions which should be saved for buddies, rants, campfires, kumbaya moments, weekends, and church. But that is not the case. These concepts – or, more precisely, the core concept that “if it’s legal, it’s o.k.,” dramatically affect how our society functions. From the perspective of litigation, another substantial amount of litigation could be avoided by just doing the proverbial “right thing”; by not lawyering up; by viewing litigation as a last – not first – resort; and by viewing litigation at least with a sense of disappointment and even regret and embarrassment – just as bankruptcy used to be viewed.

Note: With your permission, may I underscore this last point. It is only in the recent years of Modern America that bankruptcy has been viewed by some as “acceptable” and as merely a “business tool.” Historically, there was a certain degree of disappointment, bordering on shame, associated with the filing of bankruptcy – whether it be Chapter 7, 11, or 13 bankruptcy. While one’s filing of litigation is far less draconian a measure than the filing of bankruptcy, it would be – literally — useful for society to view litigation askance as well.

Idea 3. Increase the Transparency of Representation. Assure higher level of transparency and publicity with respect to the attorney representation of parties so that any party – including the press – can readily identify which attorneys and which law firm(s) are representing which claimant parties.[1] This is not suggested as some variant of any cancel culture. Indeed, some attorneys and firms routinely publicize cases they win. In a parallel fashion, the public should be able to readily discover which cases (and types of cases) these attorneys and firms take and which clients (and types of clients) they represent. Thus, when a baseless case has been taken and is readily dismissed, the public should have ready access to knowing what attorney and firm represented such losing party. 

Idea 4. Substantially Increase the Fines (or Other Financial Consequences) Resulting from Frivolous Litigation (or Litigation Dismissed by Summary Judgment). Substantially increase the fines and consequences relating to the filing of baseless claims or even discovery motions made by clients and their attorneys. Without getting overly technical in this article, it is also recommended that consideration be given to imposing a substantial fine or other charge payable to the innocent party in the event of any case dismissal via summary judgment motion. Lastly, the imposition of such fines should not be limited to the client. A portion – or even a parallel assessment – should be imposed upon the attorney(s) who articulated, filed, and initiated such spurious cases. 

Implementation. Very bluntly, each of the foregoing ideas will be both hard and slow to implement. Especially the narrowing of the right to “one’s day in court” societal mantra will require civic discussion and explanation. Likewise, the economic thrust of some of these ideas will require attorneys to occasionally turn away cases and this will require them to work against their own (at least short-term) economic interest.

Nevertheless, these issues must be addressed. America has become far too litigious. America is becoming more sophisticated and more aggressive in condemning enablers, and it cannot be ignored (a) that our country is buried under the weight of too much litigation and (b) that some attorneys’ and law firms have become enablers in the worst sense of that word.

Closing: In the interests of focus and brevity, this article has not addressed the reality that most Americans can no longer access the American judicial system. They cannot afford the high fees of attorneys and the cost of litigation. As a result, attorneys in the context of non-criminal matters are retained almost exclusively by the wealthy clients or corporations, but these subjects are not here addressed. In addition, this article was also NOT intended to revisit Shakespeare’s four-centuries-old line “let’s kill all the lawyers”[2] To the contrary, I believe that many attorneys provide innumerable, constructive services for the benefit of Americans and our society and economy. However, some attorneys are blinded by the economic rewards of litigation. Some attorneys have unduly, even unwittingly but conveniently, embrace the concept that everyone has a right of representation. But that is not always the case. America cannot any longer ignore the reality that some attorneys have become powerful enablers in the misuse of our judicial system for wrongful purposes – retribution, shakedown, intimidation or negotiating advantage. Such behavior will never be eliminated, but societally we must start imposing consequences not only upon the plaintiff/claimants but also upon their attorneys. 

INVITATION 

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The Fancypants Word of the Day

Esurient (Part of speech: Adjective) 1) Hungry 2) Greedy.

Examples of use in sentences: “He skipped breakfast, so by lunchtime he was positively esurient.”

“He hated being called greedy, but because of his ignorance he did not mind being called esurient.”

Source and thank to wordgenius.com and Shawna Borgen.

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Copyright 2020 by Mack W. Borgen. All rights reserved. No part of this article may be reproduced or transmitted in any form or by any means, electronic or mechanical, except in the case of brief quotations embedded in critical articles or reviews, without prior written permission by the author.

[1]  I am not suggesting that this information be used in furtherance of America’s recent engagement of cancel culture. (See, Carney, T., “Canceling Lawyers and Punishing ‘Enablers’). However, members of the public should be able to know and have ready access to the public records or easily find out who a lawyer or firm has represented.

[2] This famous line is from Shakespeare’s 1591 play Henry VI, Part 2.