Legal profession norms

[JMHawkins 15]

t2Eagle said:

 

I have never been able to successfully spin off a thread, so if anyone else can please do so, for now Ill continue the discussion here, it is a worthwhile discussion.

 

There's a link in the lower right hand corner of each post, down underneath the admin and IP: Logged links. You just have to click it and give the spun thread a new title (and remember to pick a forum for the new thread). Other than that, it's just like replying.

 

...judicial system, like all the other parts of our democracy, is, paraphrasing Churchill, the worst form of a judicial system, except all the others that have have been tried.

 

Yeah, I think I agree with that, but it doesn't mean there aren't some problems that could be fixed. In particular, I think you lawyer types could do a little more self-policing on the exaggeration front. That's where a fair amount of the problems - both real and percieved - come from. I know it's part of the system, and to some degree inseparable from it, but it sure seems to be a bit out of hand these day.

 

Like Beavah said, I'm a software guy. I've done a fair amount of interactions with IP (Intellectual Property) attorneys. I have a few patents, I've been involved in a couple of infringement cases. The IP attorneys writing up a patent application have a SOP of making a set of claims in descending generality. First, they claim the invention covers pretty much the Sun, the Moon and the Stars. Then if that doesn't hold, they just claim the Moon and a couple of good sized planets. If that doesn't hold, the 3rd claim is for the Moon, the 4th for a couple of craters, and finally somewhere down at the end they actually get around to claiming the real novel inventions the application ought to cover in the first place. Their reasoning is that they'll exaggerate their claims, the other side will exaggerate theirs, and somewhere in the middle the adversarial process will find an acceptable version of the truth. Like a car salesman quoting a high price expecting the buyer to haggle him down a few grand.

 

It works, but the bigger the exaggerations, the bigger the potential error. I think the acceptance of making exaggerated claims (always in the interest of the client, of course) has become a little too lenient. Not just in tort or IP cases either. Seems prosecutors have a SOP these days of threatening a defendant with exaggerated charges in an effort to get him to plea bargan down to what they think he might actually be guilty of. The bigger the exaggerations tolerated, the better the chance of an intolerable injustice being done.

 

Do journalists blow up the exaggerations even further? Sure, they can do a hatchet job on all our professions (T2, if you want to practice your thread spinnin' skills, spin one off on jouranlism:)) But I think the general mechanism of the adversarial process requires some housekeeping and self-imposed limits from you "officer of the court" types to remain functional.

 

 

[packsaddle 753]

Perhaps sincere desire and actions by individual attorneys to state and arrive at actual 'truth' would be a good start, rather than depending on the system or the process to do this? Or is personal 'honesty' a hopelessly naive thing to ask?

[SeattlePioneer 144]

Hello packsaddle,

 

Of course the legal profession takes pride in their idea that some abstract concept of truth is not the goal of their profession. Instead truth is supposed to be revealed as best it can through the legal process.

 

The lay public often finds that hard to swallow, if not corrupt.

 

Expecting the legal profession to give up their idea of how the truth is determined through a clash of advocates WOULD be naive, I expect.

 

I have other issues with lawyers, but that's not one of them.

[JMHawkins 15]

oh, I think that T2Eagle is right when he implies there are far worse ways to find the truth than the adversarial process, and relying on everyone being an angel is no way to run a legal system. But I do think the profession needs to reconize the inherent problems that the process creates, and try to keep them in check.

 

This certainly doesn't help the image of the profession:

 

http://m.usatoday.com/article/sports/55763638

 

"A New Jersey woman who was struck in the face with a baseball at a Little League game is suing the young catcher who threw it."

 

Hey, there's our new BSA sales pitch. "Join BSA so your kid doesn't get sued by someone picnicking next to the ballfield...