Saturday, March 8, 2008

Courthouses are built with an imposing facade,
with the words chiseled in stone,
"We who labor here seek only the truth".

Words of Mass Deception

The rhetoric is convincing less and less individuals that the United States is a country of laws, with the best legal system protected by a constitution guaranteeing that no one shall be deprived of life, liberty and property without due process of law. This is becoming more and more a coverup for the thievery in the name of justice. The extent of the callous disregard for the truth and of the law still leaves those who come in touch with what is supposed to be a "civil" court system shell shocked. It is still difficult to accept that where the constitution is flaunted as an inalienable right it has become discretionary with many judges whether they follow its dictates. Even if finally a party prevails in a lawsuit it is at an enormous financial cost and expense of time and can be a traumatic experience.

All these constitutional rights have been reduced to a meaningless rhetoric where they have become unenforceable, including in the federal courts, . Unfortunately, many judges have assumed the position that their job is to confiscate your money, your assets, your property to curry favors with lawyers and other judges. The facts are whatever suits the end result. Once in a blue moon a judge is apprehended by the system as you may read in our News and Articles but, that is the exception, a make believe that it is a few judges who taint the system, a mere cover-up to allow the lawless business of justice to continue as usual in the courts. It is coming to that a victim has a better chance to escape from the jaws of a shark in the ocean than in the courthouse.

Lawsuits are now being filed in the USA at the rate of over one hundred million a year. Where there is money to be made there will be a lawsuit. Lawyers can walk into the courthouse to file a lawsuit and sue anyone, even on fabricated facts, that berate the opponent and is tailored into a lawsuit on some legal theory or resembling one, which is then often treated by the courts as a lawsuit worthy to be litigated. Many of these lawsuits have nothing to do with right or wrong, the facts and the law, but are based on the desire to extract money or property from the party sued and of course fees for lawyers. The case becomes simply a means to transfer assets to enrich some in the legal profession, a holdup with a pen. America is no longer the land of opportunity it is the land of the opportunist.

When a potential plaintiff walks into a lawyer’s office, before filing a lawsuit, the lawyer will ascertain if the potential defendant has sufficient assets, especially when the attorney is working on a contingency fee basis. Prior to commencing a lawsuit, the plaintiff’s attorney will perform a financial investigation of the target defendant’s assets, seeking to locate any real estate, bank accounts or other valuable property. If the investigation reveals that the defendant has substantial assets the lawsuit will proceed. If all the facts are not there, as can be seen from some of the individual cases presented here by CJA, facts can be created and even falsified as a means to achieve the desired end.

In many types of litigation the plaintiff can obtain from the court a pre-judgment writ of attachment, or a restraining order, or secure the appointment of a receiver for the property, effectively freezing all of the defendant’s funds pending the outcome of the case. This is often the single most potent weapon available to the plaintiff. Without access to funds to meet business and personal expenses the defendant will not be able to survive financially during the lawsuit. The tactic will usually force a defendant to enter into an unfavorable settlement regardless of the merits of his or her defenses. Even where no property is frozen just the potential expense of a litigation will force a defendant into an unfavorable settlement, which is often akin to turning the civil justice system into legalized extortion.

In cases where there is no contingency fee, or where a defendant seeks to retain counsel, the attorney will investigate the finances of his client. The attorney will take a substantial fee in advance, generally at an hourly rate of over a hundred dollars or several hundred dollars depending on the "prestige" of the attorney or of the "firm". When that retainer fee is used up in the manner accounted for it by the attorney, more fees are extracted, often at a crucial time, such as when an important response is due or even on the eve of a trial. If the client fails to comply the attorney threatens withdrawal from the case.

In cases where no property is involved, but the case is based on some kind of claim, where David is facing Goliath, in spite of the evidence it may very well be that it is Goliath who is going to prevail, or depending on which way the interest of power struc-ture lies. Lawyers who dare to tip the balance of power, or speak out on wrongdoing, may be ostracized and are even punished by suspension or disbarment. A function of the lawyer is to keep the client under control. A person who goes to court without an attorney called a "pro se" litigant, is disfavored by the judges and such litigants are often treated unfairly. The United States Court of Appeal for the The Ninth Circuit's Prepared an Interim Report titled "Task Force on Self-Represented Litigants", which shows a deferential treatment of the self represented. A formidable response has been prepared by the organization A Matter of Justice, "Comments on the Ninth Circuit pro se Task Force Report" setting forth the problems faced the pro se litigant. However, it is noteworthy that this maybe the case even if the litigant is represented by counsel. To read the report and comments click here. Since intimidation is obviously one of the tools of the legal system, it is essential not to be intimated and to know what your legal rights are. Also in many cases alternative dispute resolution by mediation or arbitration may be more desirable in the least it saves time and the exorbitant legal fees. A recent approach is the Collaborative Practice which is different from mediation. A a neutral, third party helps the disputing parties settle their case. In collaborative practice, the spouses and their attorneys make these decisions in four way discussions click here.

Some people maybe lucky to have avoided involvement in litigation, but upon their death it may very likely catch up with all that they possessed and worked for in their lifetime. The personal representatives of decedent’s estate and their lawyers are guaranteed their fees by statute and they receive additional fees if there is litigation. They become the unnamed true heirs of the decedent, because their fees as "administrative expenses" come first. However, that involvement may come sooner in the lifetime of the individual such as upon becoming incapacitated in an accident or because of advancing years a guardianship maybe set up. If there are no liquid assets then the property of the ward and even the ward’s home may be liquidated, to provide funds. Both in probate and guardianship cases the assets of the decedent and ward come under control of the court. The presiding judge awards the fees to the personal representatives, to the guardians, their lawyers, accountants and so forth from the estate of the decedent or incapacitated person. So, that the fees are usually not negotiable not even by the immediate family.

The fees are generally based on "billable hours", which in practice means whatever is billed by the attorney, often turning it into the "billable horrors". Even if objections are filed to the fees, if there is money the fees are generally approved by the presiding judge. Billable hours often include traveling time to court and other non-legal activities charged at an hourly basis as legal fees by attorneys, which have been adopted by other professionals such as accountants and so forth. Often the time to bill the "billable hours" and if there is a hearing on it that time is also billed. Also more fees are charged to the estate for the time to defend against objections, which are also generally approved by the court. It is not unusual to have a whole estate or a substantial portion of it converted to court appointees under disguise of fees and expenses. This is often the case in other type of cases where the court has the authority to award fees, such as in divorce, bankruptcy, foreclosure, and so forth. The divorce industry is a very lucrative practice, especially with clients of means. In many cases as long as the parties have the money the litigation goes on, condoned by the judges. So, that no matter how many judges there are it is never enough. In effect these lawyers with their endless litigation are subsidized by the public.

The trials and tribulations of the middle class litigants who are stripped of their property, of their livelihood, or of their rights, are generally not news worthy and so they are rarely if ever reported by the news media. What gets coverage are the sensational murder trials, or lawsuits involving large corporations with deep pockets, who are hit with a big judgment creating the impression that justice has been done. We at CJA receive numerous complaints. We are presenting here a few these cases in detail as told by the victims based on the record, to make the public aware of what transpires in court with regard to these silenced litigants and to demand reform from governmental bodies. The general response that ours is an adversary system where one party wins and it is the disgruntled loser who complains cannot be applied on cart blanche basis. Not when a party fails to prevail because the law and the facts of the case are disregarded, or the laws and rules and changed or because of other illegal and unlawful activities by the judges and lawyers. It has become common standard to dispose of motions or of even cases with a mere "denied"; "dismissed"; labeling it "res judicata" when those matters were never heard. The "Rule of Law" has been become to mean, those who rule make the laws to suit their own objectives.

A recent study on data compiled by the federal court system, was prepared by Marc Galanter, who teaches law at the University of Wisconsin and the London School of Economics, for the American Bar Association. The study shows that only 1.8% of the civil cases in federal court go to trial. William G. Young, the chief judge of the Federal District Court in Boston, said in a telephone interview, that this "is nothing less than the passing of the common law adversarial system that is uniquely American." We know that this change is not a positive but is detrimental to many litigants. It is no longer a litigant's right to have their day in court, but "now they have their day on papers submitted". The study found that in 1962 a federal judge conducted an average of 39 civil and criminal trials a year, but have now dwindled it down to 13 a year. The judges spend the rest of their time on deciding pretrial motions and urging or approving settlement and plea bargain. To read more on this issue click here. However, what is omitted is that federal judges have magistrate judges and much of this work is done by them, with the federal judges merely putting their stamp of approval on it. The same is apparent in state court, where litigants are also denied their day in court, too often cases ending not in well reasoned orders and judgments, but what amounts to judicial edicts. What this obviously ads up to is the constitutional denial of due process, the right to be heard, to present and receive evidence and to give and take testimony. Although, it has been found that the public prefers jury trial over judge it has been found that plea bargaining and arbitration are often resorted to avoid costly trials click here.

Should an appeal be taken, often that is a mere pretense of a review by the higher court, which simply never happened just merely a PCA a rubber stamp, or some further fictionalized version of the case, supported with authorities that are relevant only to the fictionalized version and not to what was before the court. To add insult on injury this is carried out under the pretext that the victims have "constitutional rights". However, as the system is now administered in many cases these rights have become a mere illusion a rainbow in the sky.

Some of the cases presented here show the misuse of contempt powers by judges to intimidate and to eliminate opposition to whatever they wish to accomplish, to the extent of even throwing individuals into jail, middle class law abiding citizens whose only "crime" generally is an attempt to be heard in their cases. This treatment in some cases is also accorded to lawyers who fail to conform to the system. There is also retaliation against judges who expose wrongful activities in the courthouse. So, that the system operates in a "conspiracy of silence". Those who report corruption in the system are often described in derogatory terms such as "whistle-blower". We are also including articles by lawyers and reports and statistics from the courts telling us from the inside the pitfalls of the legal system. The Bar's and the judiciary's response to the complaints by the public is that they do not understand the legal system and their perception has to be changed, but without changing the practices that is objected to by the public.

However, many lawyers are coming to recognize that the legal profession is not the "noble profession" it pretends to be, but, it often brutalizes those it touches. That the objective is not to seek justice or finding reasonable resolutions to the conflict, but how to destroy the opponents by any means possible, such as nasty fights, vicious accusations, twisting the truth etc., to win at any price. Click here Incivility in court between lawyers is a growing problem. Click here The courts are not what it used to be is candidly described by a judge. Click here.

Yet another problem is a large segment of the population who do not qualify for legal aid or their problem is not one that qualifies for legal aid, or who do not have funds to retain counsel, or when they run out of money without resolution but, the litigation continues. These persons then often appear representing themselves known as pro se and many times receive unfavorable treatment in the courts. To read such concerns Click here. That does not mean that one should give up. If rights have been violated that is a reason for continuing on.

In a recent landmark decision the Florida Supreme Court quashed the lower court's appellate decision that approved the lower court judgment prohibiting the father from seeing his son for six years in a judgment that was not written by the trial judge but by the wife's lawyer. The Florida Supreme Court rejected that judgment because the trial judge discouraged the husband from submitting a proposed judgment and thereupon adopted the wife's lawyer's judgment in two hours without making any findings of fact. It was noted that the wife paid her attorneys $850,000. while the husband represented himself. In a specially concurring opinion one of the Justices recognized that "this case is an example of a continuing trend in appellate review in this state to apply the cloak of judicial discretion to approve lower court decisions riddled with errors. In rendering the decision today, this Court takes a modest step toward rectifying a pattern with which many have had a growing concern that we are alienating the public’s trust in the judiciary". To read further Click here.

As to criminal law see the article on a Report issued on prosecutorial misconduct by Center for Public Integrity. State and local prosecutors who bent or broke the rules to help put 32 innocent people in prison, some under death sentence, since 1970, according to the first nationwide study of prosecutorial misconduct. To read more about it Click here.

The United States Chamber of Commerce Institute for Legal Reform (ILR) released a study showing the tort system costs U.S. small businesses $88 billion a year. "As a small business owner, I have seen first-hand the devastating effect legal costs can have on small businesses," said Maura Donahue, Vice President of Donahue/Favret Contractors, Inc., of Mandeville, Louisiana, and Chair of the U.S. Chamber's Small Business Advisory Council. "Money that should be used to expand and hire new employees is instead siphoned off to pay for legal costs. Small business owners are the engine that drives the U.S. economy. They create 75% of the new jobs in this country, but are clearly being handcuffed by a steep rise in frivolous litigation." The study, conducted for ILR by NERA Economic Consulting, found that the total annual cost of the tort system to U.S. businesses (large and small) is $129 billion per year. Small businesses with $10 million or less in revenue bear 68 percent of that cost, paying $88 billion a year. That equates to about $150,000 a year for each small business - money that could be used to hire additional employees, expand operations or improve health coverage. For full story Click here.

However, it is not only financial losses that is suffered by individuals but, the failure of the legal system has been found by a noted psychologist, Karin Huffer to inflict severe psychological harm as well on the victims, to which she coined the terms "Legal Abuse Syndrome" a form of "Post Traumatic Stress Disorder". The victims are traumatized not only by the crass treatment accorded to them in the courtroom, but upon being confronted by the fact that fundamental civil rights guaranteed under the U.S. Constitution are trampled upon. Many victims do start out represented by attorneys, but unable to continue to pay their fees, or out of frustration end up as pro se litigants. They continue on the litigation in some faint hope that the truth and law will prevail or it must prevail because that is what the constitution and the law says. However, that would apply only in a court of law, administered by men and women of honesty and integrity, but unfortunately not where the judiciary have manipulated the system to place themselves above and beyond the law.

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