Legal Pyramid Schemes

Recently, the Utah Judiciary Committee completed a survey which
anecdotally indicated that the general public believes that the Utah Judicial System is infused with bias and is unresponsive to the public's needs. In reaction thereto Senator Hatch, Justice Zimmerman and others seem to opine that this public perception, though troubling, is incorrect. To these leaders and others, I would warn and hope that they do not disregard these "anecdotal perceptions." As an attorney, I believe this perception to be true, but I will be branded a whiner. Whether correct or not, it is often the masses' collective perception that is the catalyst to reformations, riots and revolutions.

We live in an era in which our legislators, judges and attorneys are enamored with legal complexity and are seduced by the legal process. They've never met a problem that could not be made worse with a cascade of undecipherable legislation. In the name of legal reform, powerful interest groups representing big business and big government have created innumerable special laws and layer upon layer of legal processes and procedures that are little more than the structural pyramids of old and the fraudulent pyramid schemes of today--monumental tombs for the powerful, built upon the backs of the common man, smothering justice, equity and fairness under their weight and offering benefits to their creators but offering nothing but false hope to the rest of us.

These legal pyramid schemes, only impressive because of their sheer volume and fraudulent ingenuity, provide no utility. They are structured upon a proliferation of documentation requirements, statutes of limitations, notice procedures and pre-litigation proceedings. They are justified by snake-oil sales pitches. They are attended to by ranks upon ranks of priests and priestesses we call law enforcement officers, investigators, attorneys and judges. They do nothing to resolve legal disputes, nor simplify the process but merely add expense, time and complexity thereto. Such legal pyramids include the Utah Governmental Immunity Act and the Medical Malpractice Act. As a result of these Acts and others, the ranks of priestly lawyers must explode to act as our spiritual tour guides among the tombs and new governmental investigative, regulatory and adjudicative agencies must be created, swelling government bureaucracies. The Utah Industrial Commission with its many divisions, including but not limited to the Anti-Discrimination Division, is a crowning jewel to these legal pyramid schemes.

Our High Priests--our Justices--chosen to administer these legal pyramids schemes, who should be chosen because of their diverse legal backgrounds, experience and ability to act objectively, are selected almost wholly from the ranks of attorney technocrats or politicians who have spent their careers financing, supporting and building such legal pyramids on behalf of their clients, the privileged, the rich and the powerful. As a consequence, whether consciously or unconsciously, they do their best to gut, by their parsimonious interpretations, any laws protecting the rights of working, middle-class Americans. Having never had to see legal issues from both sides or to have litigated on a shoe string for poor clients, such Judges are often arrogant, rude and impatient with attorneys and litigants whose cases do not involve momentous issues, have millions at stake or have unlimited litigation budgets. If ever remiss in their duties, accountable to no one, our Judges would probably cause those that appear before them to faint in surprise if they ever apologized.

Because of the vague laws or because of having been granted broad judicial discretion by these legal pyramids, when these same Judges are confronted with difficult decisions that could arguably be determined either way, they usually apply the following rules: (1) Whatever decision allows them to get to the golf course sooner on Friday afternoon is the right one, (2) when a dispute arises between parties of unequal economic or political strength, then the more powerful party should prevail, (3) when a dispute is being presented by lawyers or law offices of unequal prominence, then the more prominent lawyer or law office should prevail, (4) if a party can be forced into giving up his or her position, or if a difficult and lengthy evidentiary hearing or trial can be avoided by ordering the parties to undergo expensive evaluations (like custody evaluations) or engage in other procedures that they must pay for and cannot afford, then the Judge should so order, (5) if a technicality arises allowing a favorable decision for big government or big business then it should be summarily used, (6) if a technicality arises allowing a favorable decision for a politically or economically unimportant individual or a criminal defendant, then it’s a damn poor mind that can't think of some reason or excuse not to allow use of the technicality (Judge's don't have damn poor minds), (7) evidentiary rules should always be interpreted in criminal cases to benefit the government (unless the defendant is wealthy and politically connected) and in civil cases to benefit the economically or politically powerful–even if doing so creates a double standard when the same rule is being applied to a criminal case as compared to a civil case (i.e., the rules involving other bad acts); and lastly such Judges should always keep in mind that (8) the process and procedure is more important than the substance of a legal problem.

Another reason for the public's perception of bias are the double standards that have been created in our legal system. We view as unfair the Federal and State governments' unlimited access to information about our personal lives and its enormous power to prosecute its citizens without reimbursement when it is wrong, thus bankrupting both economically and spiritually thousands of innocent people.

We view as unfair the governments' power to collect money from its citizens without the fear of bankruptcy and through innumerable seizure methods with little due process. To the contrary, to collect a judgment from a judgment debtor, we must go through a lengthy series of hearings and court filings to collect a judgment that could be relieved by all too easy bankruptcy filings. We view as unfair, that to seek redress from our government for a civil or legal wrong, we often can't even get a government representative to answer the phone.

We further can't understand why if big business or big government asks the criminal justice system to prosecute an employee for stealing a $1 pencil set (which should not be tolerated), it will go after him with unfettered zeal, yet if we ask this same criminal justice system to prosecute a business when the evidence is conclusive that it is intentionally robbing its employees of thousands of dollars of wages or to require a governmental agency to perform its regulatory requirements, you will not see blanker stares on a milking cow. This is not justice.

Utahns should clamor for true legal reforms that do not become legal pyramid schemes, offering benefits for special interest groups but false hope and broken promises for the rest of us. Laws should have universal application and take into consideration all members of our society. If a special law for the medical industry cannot be applied to others, look for the dead bodies buried under its gleaming facade and you will find them. True legal reform should infuse the legal system with simplicity, fairness, and cost effectiveness. Here are just a few recommendations:

(1) Except for murder and other similar heinous crimes, irrespective of the parties in an action (whether governmental, individuals or businesses) there should be one statute of limitations for all criminal cases and one statute of limitations for all civil cases whether involving conduct that is intentional or negligent (this would include the elimination of special notice requirements for lawsuits against the government or medical health providers, etc).

(2) The elimination of special laws protecting the government or other interest groups. Laws should have universal application or should not be passed. (For instance, if constitutionally viable caps on damages are set, they should apply to all individuals and legal entities, not just to the government or particular industries).

(3) If the government pursues a criminal or civil suit against a business or an individual and loses, it should reimburse them for their legal expenses.

(4) Except for perhaps the Worker's Compensation Division of the Utah Industrial Commission, all of its Divisions and other such governmental bureaucracies should be eliminated and their enforcement authority should be turned over to the private sector.

(5) Creating judgment collecting procedures that: (a) start immediately following the Court or Jury's pronouncement of a money award and, (b) require the court's active involvement in ensuring payment of the judgment. (This is of more interest to middle-class Americans than perhaps any other legal reforms).

(6) Giving all businesses, whether corporations, partnerships, etc. the same legal immunities and protection from suit. (This would better ensure universal application of tort laws to businesses).

(7) Requiring insurance company's to allow their insureds to select their own attorneys and allowing defendants who are eligible to have a court appointed attorney to have their choice of attorney so long as the privately chosen attorney accept the same contractual rate paid by the insurance companies and governments to their own attorneys.

(8) If caps on damages that are constitutional are passed that still allow
punishment of malicious conduct and reimburse those with catastrophic injuries;
then, short of proving medical malpractice against the health care practitioners,
insurance companies, judges, and juries should be prohibited from second guessing the treatment choices and expenses incurred by an individual's own health care practitioner. (In other words, provide caps for the insurance industry and big businesses but then provide assurance that medical bills will always be paid--this adds fairness to both sides of this issue).

Loren M. Lambert
2001 ©