Who's In Charge?

Who’s in Charge?
by Tom Adler


It’s important to know who’s in charge of any aspect of one’s life. It creates a sense of security. You know what to expect and who you are dealing with. This is not to say that you like it but at least you know where you stand. In the case of our government I always thought, at least for the past three or four decades, that I knew who was in charge; the rich people and the large corporations. A recent news article, however, has shaken my belief system to the core and caused me great anxiety:
”Pharmaceutical giants Merck and GlaxoSmithKline are gearing up for a bruising showdown with America's religious right after the US medicines regulator approved a new blockbuster cervical cancer vaccine last week. Conservative groups, including the influential Family Research Council (FRC), have voiced concerns that immunizing young girls against the virus that most regularly causes cervical cancer, Human Papilloma- virus, may lead to sexual promiscuity.”
A few years ago this story would have been amusing but not alarming. Today it may get a silent shake of the head and provide material for a few comedians. But how many of us will go to our windows and shout into the darkness the now famous words “I’m mad as hell and I’m not going to take it anymore”. Who is running this country? The answer is not clear. Until shortly after World War ll the people who lived here were in charge. That was a good time---not for everything, because there is never a good time for everything. There were crooks in government but somehow it was a discernable, understandable form of crookedness. For wont of a better term let’s call it a Huey Long kind of dishonesty. It could be dealt with. You knew it was there-not too many people got hurt by it, some people even chuckled, taking a sort of perverse pride in it—“What the hell you gonna do-this is Chicago” (or New York –you fill in the city). Once in awhile some public official went to the slammer amidst great fanfare but most stayed under the radar and retired to a nice house in the country. It was all manageable. But times have changed.
President Dwight D. Eisenhower who had been a five star general and the Supreme Commander of all allied forces in World War ll said in his farewell address to the nation in 1960:
“This conjunction of an immense military establishment and a large arms industry is new in the American experience. The total influence -- economic, political, even spiritual -- is felt in every city, every State house, every office of the Federal government. We recognize the imperative need for this development. Yet we must not fail to comprehend its grave implications. Our toil, resources and livelihood are all involved; so is the very structure of our society.
In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military industrial complex. The potential for the disastrous rise of misplaced power exists and will persist. “

It has become clear that the military industrial complex including Merck and Glaxo Smith Kline and other large corporations like Halliburton have been running the country as Eisenhower had predicted. How did this come to pass? The answer is clearly through the selling of public offices. Because of the absence of any meaningful campaign finance laws politicians are forced into the necessity of raising huge amounts of money just to keep their jobs. Thus they look to the individuals and corporations who can contribute the largest sums to their campaigns. Sometime during the last few decades politicians have become conditioned to only open their doors to the rich. Much like Pavlov’s dogs they y salivate in the presence of cash rather than principal. According to the Center for Public Integrity, between 1998-2004, California companies and organizations spent $806,427,813 on lobbying Washington. The natural consequence of this pervasive influence of money is that the poor, the minorities, the disabled and the young have been completely marginalized and have no voice. Money has displaced virtually every virtue discussed in the Bible which brings us to the paradox of how politicians have come to embrace the religious right. It’s almost as though they realize that they are not legislating in the people’s best interest any longer and seek absolution for this sin by attaching themselves to the supposed Christian ethic of the right wing.
Unfortunately their purpose is not so high minded. It’s rather simple. It’s just that the right wing preachers turn out the vote so the legislators mimic their thoughts by supporting a ban on gay marriages, stem cell research, abortions and a host of other issues that government has no business being involved in. And so the poor go unfed, the elderly can’t afford prescriptions, the public schools are in chaos, the rich get richer through unconscionable tax breaks and corporate executives rob shareholders.
The cervical cancer vaccine dispute puts the Congress in a really tough position. Do they go with the military industrial complex (Merck/Glaxo) or do they go with the neoconservative evangelists? In other words do they risk the loss of money or the loss of votes? I’ll bet the poor, disabled, minorities and disenfranchised are glad they don’t have to make these tough decisions. They just have to figure out how to stay alive in a country that doesn’t care what happens to them
©2006 Tom Adler

Rant about Foley

Spinning Foley: The Hypocrisy of the Religious Right

After remaining silent for several days, the Family Research Council, a right wing religious group on the cutting edge of moral pronouncements on gays, abortion and family values finally figured out how to spin the story about Congressman Foley’s aberrant behavior with the house pages.

Their statement by the organization's president, Tony Perkins, is buried deep in their website and, although dated October 2, it was apparently not posted until October 4. A good spin always takes a little time. President Perkins stated:

“We are all shocked by this spectacle of aberrant sexual behavior, but we shouldn't be. This is the end result of a society that rejects sexual restraints in the name of diversity. When a 16-year-old boy is not safe from sexual solicitation from an elected representative of the people, we should question the moral direction of our nation. If our children aren't safe in the halls of Congress, where are they safe? Maybe it's time to question: when is tolerance just an excuse for permissiveness? Both political parties need to be more serious about protecting children from sexual predators. We need public policy in our country that protects marriage, respects parental authority and aggressively polices boundaries around our children."

It’s heartening to see that the FRC still denounces aberrant sexual behavior along with the rest of the civilized world. But after that there is no moral outrage left for the persons responsible nor any demands for a thorough investigation affixing responsibility or even calls for justice or repentance. Could it be that the perpetrators named so far are all prominent Republicans? Rather than continuing their rhetoric about personal responsibility, the statement blames a society which is too “diverse”, It decries the direction of the nation( Perkins must have forgotten who has been running the country for the past six years), permissiveness (as though society approves of old men hitting on young boys in their employ).

But the real clincher comes when he says, “Both political parties need to be more serious about protecting children from sexual predators.” This was just a clever way of deflecting responsibility from the responsible parties; Foley and the Republican Party. Foley did the acts, Hastert knew about them and didn’t do anything. And the facts were kept from the Democrats on the relevant committee because the potential political problem to the Republicans if the word got out outweighed the ongoing danger to the pages of repeated entreaties to engage in sexual behavior by a prominent Republican. The Democrats had absolutely nothing to do with this, yet Perkins drags them into his rant about immorality while not mentioning the wrongdoers.

The FRC has nothing to do with ethics or morals. It has everything to do with making sure that the Republicans stay in power so that they can remain a force to impose whatever code of morality the FRC decides is best for the nation. It’s time to get rid of not only the party who has wreaked havoc on our nation but also those groups which blindly follow the party line even though it’s not in the best interests of the citizens. I wonder if the FRC took the same position when Clinton had his indiscretion. Get the religious fascists out of government and back in the churches, synagogues and mosques where they can do some good - demonstrating the path to righteousness and leading ethical lives. Their foray into imposing their will on all of the varied citizens in this country just isn’t working. Not only is the government rife with corruption but the religious right who has long been currying favor with the political parties is becoming just as morally bankrupt as our government. The FRC, like other similar groups, has lost their way, which is helping people in need, not dictating their view of morality by supporting politicians. The FRC statement on the Foley matter is an excellent example of how they have been co-opted by the political process. The Founders understood the need for separation of church and state. We just need to breathe some life into it.

Tom Adler

Is There Enough Justice To Go Around?

Is There Enough Justice To Go Around? Warrior Memoirs
By Tom Adler

In spite of what my colleagues told me it really wasn’t that difficult. After twenty five years of litigation I had tired of the continual wrangling…the need to be smarter and tougher than my opponent…the need to win….the nights of being unable to sleep while my mind rehashed a perceived mistake in tactics or worse a statute that had been overlooked…..the dread that I felt when a jury came back into the courtroom to deliver their verdict and wouldn’t look at my client as they resumed their seats. It’s true …there were also some great times. Moments when I knew that it was only through my creativity and hard work that a client had been set free or that an injustice was exposed and made right. But in the last few years of my practice it seemed that it wasn’t as much fun and although I attributed it to burnout….it wasn’t only that…..the system was changing. Individual rights didn’t seem quite as important as they once were. There was much more talk of the “system” of justice….how to make it more efficient….how to “move cases”. Judges were appointed who came out of administrative agencies…who had never represented real people or fought for the underdog or taken up a cause just because it was the right thing to do. A sweeping assertion….. perhaps, but it’s a feeling I had.
In the years since I’ve retired I’ve had occasion to think about the differences about the way judges and attorneys used to view the law and my perception of how that has changed. It can best be illustrated by a story which came to mind after a recent visit I made to the Court of Appeal.
As I passed through the metal detector, the muted colors and the expensive furnishings in the lobby coupled with the respectful silence exuded a sense of solemnity and security. This is one of the major hubs of the law where the injustices of lower courts are straightened out………where the playing field should be leveled for everyone. I started thinking about some of my own experiences in this court while I was in practice. Along the carpeted corridor leading to the courtroom were pictures of the Justices, past and present, who had meted out justice as they saw it. I wondered how and if it had changed. With the exception of those wearing celluloid collars, most of the faces were familiar to me. As I walked by the photos one of them in particular caught my eye. I stopped and stared at it and remembered. Here was the one who had early on given me the belief that the law could indeed be something magnificent. I stopped and stared and let my memory wander.
It was early in 1973. I’d been a lawyer less than a year and was learning the ropes as a staff attorney at the Defenders Program in San Diego. The head of the office was a fiery old Irish trial lawyer, Stan Conant, who didn’t try cases any longer but was content administering the office and trying to keep his flock of young attorneys from getting into too much trouble. He was widely respected by everyone in and out of the office as having tried 16 death penalty cases and losing only one. He never talked about the wins but often recalled the one he lost by recounting the moment that the jury filed into the courtroom with their verdict and all twelve were crying. Every time he told the story he had the same pained look on his face. He was a guy who really cared. The story always ended with his face breaking into a smile as he wryly said, “It was reversed on appeal”.
As for me, my first assignment was handling misdemeanors in the El Cajon Office. I was replacing an experienced attorney, Dave Devore, who greeted me at 8 am as I walked into the tiny cramped Defenders office on my first day at work. The entire office consisted of a small secretarial station behind which was a single windowless room which was shared by all three attorneys assigned to the office from Defenders. Dave was in a hurry to get to court so he invited me to look over the case files I would be taking over and said we’d get together for lunch. I never saw him again. On his desk were 110 case files with people charged with crimes I had never even heard of. Compounding the problem was the fact that there was no penal code in the office. After some thought and with a great deal of trepidation I phoned my new boss, Stan Conant, and asked him if I could get a penal code. There was a long silence at the other end and he finally said “Adler I thought you were a sissy when I hired you” and the line went dead. So much for training.
After a year or so I was sent to Juvenile Court where the law was seldom mentioned or followed. I filed so many writs that the juvenile court judge talked Stan into transferring me to another division. So I was sent downtown, where the “real” lawyers were and was given a felony caseload. This was the big time! Although my law school dean had said in one of his early lectures that there wasn’t enough justice to go around I was determined to prove him wrong. One of my first cases was a black man charged with burglary. Although there was quite some evidence of his guilt I thought he was innocent and on the morning that the case was called for trial in the criminal presiding department I was ready with my newly polished shoes and high hopes. The presiding judge called my case and I was assigned to Department 5 for trial. Although nervous at the prospect of actually going to trial on my first felony I had heard that the judge in department 5 was a fair minded man and I knew from my discussions with other lawyers in the room that I could have done much worse. I conferred with my client who was in custody, met the judge in Department 5 and after a general discussion of the ground rules we started selecting a jury by late morning. It was right after lunch that the entire system was put to the test.

I was selecting the jury in a cold sweat. Standing in front of all of these elderly people and asking them personal questions was something that would take me several more years to become comfortable with. The clerk’s phone rang very quietly and after a hushed conversation she leaned up and whispered in the judge’s ear. The judge then interrupted me and advised the jury that we were going to take a break. After they had left the room the judge, who indeed seemed to be fair minded so far, advised me that the criminal presiding judge had “recalled” the case and I was to report back to his courtroom and that the trial wasn’t going to go forward and that he was going to excuse the jury panel. My mind went blank…….nothing I had learned to date prepared me for this. I objected and was politely advised by the judge to "take it up with presiding". As I walked back into the presiding department I caught a glimpse of the judge in his chambers looking at himself sideways in a mirror on the wall .He smoothed his graying hair with a rather self satisfied look on his face as though approving of what he saw and briskly entered the courtroom. The few remaining people rose as he entered and seated himself. Looking directly at me he said “Mr. Adler I understand your client is on probation. I've recalled the case from Department 5 and am assigning you to Department 8 for a probation revocation hearing based on the new charges. Should your clients probation be revoked I'm sure you'll be able to work out something with the DA and avoid the necessity of a jury trial". I could barely speak. I may have been new but I wasn’t entirely stupid. At a probation revocation hearing there was no jury and the standard of proof was minimal……..certainly not beyond a reasonable doubt. He was going to railroad my client to prison. Because of my limited experience I was unaware that this was a new procedure adopted by the presiding judge to "streamline" the caseload. After assigning my case to a trial department someone had told him my client was on probation.
I did the only thing I knew to do……."Your Honor I object!" "Your objection is noted Mr. Adler. Please report to Department 8" he tersely replied. I couldn't even think of the legal basis for my objection. I just knew it wasn't fair .I also knew that the judge in Department 8 was a notorious hanging judge who made short shrift of defendants and their lawyers. Dutifully, I went to Department 8 where the judge had apparently been alerted to the case. In calm and reasoned tones, which I later learned was how he avoided appearing the crazed lunatic he was, he explained that since the DA and I were prepared to try the same facts that the revocation was based on that he would set the revocation hearing in two days. It all sounded so reasonable. So orderly. So efficient. So unfair. By now my doubts about what to do were giving way to anger.
I returned to my office and asked to speak to my boss Stan. I was still in awe of him and somewhat nervous as I explained what had happened. He mumbled something about that "son of a bitch" and after some commiseration he and I went to see the presiding judge of the entire court. Now I was really getting nervous. This was the big cheese! He ushered us into chambers and I sat and listened as Stan explained what had happened to me. The Presiding Judge was courtly and friendly and with a faint hint of apology in his voice stated that he was unable to interfere with a fellow judge’s decision and sent us on our way. By now I had a real sinking feeling in my stomach……..the same one I had many times thereafter whenever my sense of justice had been offended.
I went back to my office and brooded all afternoon. I looked for some law on the issue. There wasn't any at that time. It was close to 5 pm and I thought about a writ but there wasn't much time. By now my feeling of helplessness had turned to anger and I decided to take action. I called the Court of Appeal and asked to speak to a justice. The clerk asked which one and I told him anyone, it didn't matter which one. After all I didn’t know any judges. Slightly suspicious, the clerk asked me what I needed. I explained that I was a lawyer and had a serious problem with an order of the superior court and I needed to have it resolved soon. The clerk, sensing a rookie on the line, politely explained that the court could not act in the absence of some type of paper work, a fact which became clearer over the ensuing years.
That night I stayed up late preparing a hand written habeas corpus form setting forth what had happened. I had no case law since there was no comparable case that I could find and my reasoning abilities were clouded with an overriding anger. At 8 am the next morning I walked through the doors of the clerk’s office at the Court of Appeal, my sad pile of papers in hand and gave them to the clerk. He stamped them received and I sat down in the waiting room. After several minutes the clerk asked me if there was anything else he could do for me and I replied "No, I’m just waiting for the court to act on my petition”. He smiled to himself and said "Mr. Adler it doesn't work that way. The court will either deny the petition or ask for a response. Either way it will take at least a few days and possibly much longer". I thanked him and said "That's OK but I'm just going to stay here until something happens" and continued to read my magazine. After all, I had nothing else to do since my trial had been called off and the probation revocation hearing wasn’t until the following morning. The clerk disappeared and I had thoughts that he had gone to summon the State Police but rather he returned and calmly continued his duties.
Around 11 am the door to the waiting room opened and a man in shirtsleeves and tie emerged carrying a piece of paper. I later learned that this was Justice Ault. He approached me and said "Are you Mr. Adler?" Not knowing who he was I replied "Yes”. He handed me the paper and said "Here's your order. Good luck” and turned and went back through the door. Incredulously, I read the brief order.
‘The order of the Superior court in the above case recalling the trial and setting a probation revocation hearing is reversed. Trial in this matter is to commence forthwith in Department 5.” Ault, J

I was stunned by how direct the order was and how it was within the power of one appellate judge to make something right. Maybe there was enough justice to go around! It was a feeling lawyers only get a few times in their career……..a complete vindication concerning a real injustice. I raced back to the Superior courthouse. The presiding criminal judge had already gone to lunch so I left a copy of the order with his clerk and walked down to Department 5 where two attorneys were already selecting a jury in another case. The room was packed with potential jurors. I motioned for the bailiff and whispered to him that I had an order for the judge. The bailiff took the order to the clerk who read it and handed it to the judge.
I thought I detected a slight grin on the judges face as he said "Well ladies and gentlemen I have received an order from a higher court that I am to start another case immediately and therefore I'm going to have to declare a mistrial in this case and send you back to the jury room”. The lawyers looked at each other, shrugged and started to pack their briefcases. "Mr. Adler will you be prepared to proceed at 1:30?" the judge inquired. "Yes sir", I replied. I left the courthouse elated, eager to tell Stan and my colleagues what had happened. But there was more to come.

At 1:30 I arrived in Department 5 ready to start my jury trial. As I walked into the room the bailiff motioned me over and told me I was wanted in Department 8. I quickly walked down the hall and entered the lunatic’s courtroom. He was on the bench ready for me “Mr. Adler I understand that the probation revocation matter set for tomorrow has been taken off calendar so I will reschedule it for two weeks from today. Your trial should be over by then”. As ignorant as I was I knew what he was doing. There would be payback time for going to the Court of Appeal and he wanted to make sure he kept personal jurisdiction over the case rather than it being reassigned to another judge. Now although I knew what he was doing, I didn’t know any legal basis for objecting (which seemed to be becoming a disturbingly regular phenomena) so I mumbled a few perfunctory objections which he smilingly overruled.

All afternoon as we picked the jury I couldn’t help thinking about the lunatic in Department 8 waiting in the weeds to get his revenge. I went home that night and put pen to paper again and by early morning I was at the Court of Appeal as they opened the doors at 8 am and handed the same clerk a similar sad pile of papers without any authority cited in which I railed against the injustice. The clerk sardonically asked, “Are you going to wait Mr. Adler?” “No” I replied, I’m in trial” and proceeded to drag myself over to the courtroom where we finished jury selection and took a morning break before opening statements. My mind was completely preoccupied with what I was going to say. After the break I walked into the courtroom. The judge was in shirtsleeves talking to his clerk. “Mr. Adler it looks like we’ve received another order from the Court of Appeal”. He walked over to me and handed me the order. It was short and to the point:

“The order of the Superior Court setting a probation revocation hearing in this matter is vacated. The Superior Court is directed to take no further action in the revocation proceeding pending further order of this court” Ault, J


Three days later my client was acquitted of all counts and was released from jail. There was no need for a revocation hearing. Years later, at a social gathering, I ran into the Presiding judge who had ordered the trial to stop. He walked over to where I was standing and said in a somewhat pained and awkward, yet magnanimous voice, “Mr. Adler do you remember that case where you got me and (the lunatic) reversed twice in two days?” “Yes, I believe I do” I replied in a manner sufficiently sarcastic to convey self satisfaction yet remaining respectful to his office. “Well I’ve often meant to tell you that I didn’t like it, but I’ve always respected you for doing it”. I thanked him and forever after that day I had more respect for him also. Funny how that works.

But I digress from the true story which isn’t about the lunatic or the Presiding judge or me or the client. It’s about Justice Ault. He knew the lunatic and he knew what was going on. He didn’t need any blue briefs with ribbons and tables of authority to know what his job was. He was the gatekeeper between right and wrong and he wasn’t afraid to exert the weight of his office to see that it was done. The original intent of the framers of the due process clause was not an intellectual exercise to him when I came in with my pathetic pile of papers. He didn’t fret over the niceties of whether an alternative or a peremptory writ was in order or the fact that my brief wasn’t typed. He looked through the facts and decided that what happened was wrong.

The feeling that those two orders gave me stayed with me for the rest of my practice and gave me hope that an attorney could make a difference. There is such a thing as justice. It just requires a good judge and someone to make it happen. In today’s technocratic “system” oriented approach to justice I think it’s harder to find judges that will rule from their gut once in awhile. It’s antithetical to the way we think and besides we want judges who will “follow the law and not make their own rules”. But somewhere there is a tension between the concept of following the law and doing justice. If Justice Ault had ruled that my petition was “premature” or hadn’t specifically ordered the trial to commence in Department 5 or had allowed the probation hearing to remain on calendar he would have been following the law. But in making the orders he did he not only followed the law but in addition he also meted out justice. The orders said, sub silentio, “Stop messing around with this new lawyer…let’s see what happens at trial and don’t put him under the pressure of thinking about facing the lunatic if he loses”. It affected the way I practiced law over the next twenty five years and I always kept an eye out for the judges who had the same sensibility i.e. to do the right thing.

So I posit the question I started with. Is there enough justice in today’s court “system” or is it all just following the law? You tell me. I’m retired.


©2005 Tom Adler

Porn for Lunch - Hold the Bananas

PORN FOR LUNCH…..HOLD THE BANANAS
By Tom Adler


Bob Coronevsky was a large affable man standing about 6’4” with a softly rounded belly. Gregarious and well liked by the jailers and inmates at the County Jail in El Centro it was hard to believe the rumors about his having been a hit man for the CIA. In some circles he was referred to as “Gorilla” based on another rumor that after he had “hit” someone in Mexico, he was caught but escaped from the jail with the assistance of the jail nurse who later became his bride. His present crime, if believed, belied his friendly demeanor. The Imperial County District attorney had charged him with murdering a diamond merchant who was passing through this small desert farming community. The crime had taken place at a musty motel on the outskirts of town. It was an unusual crime for the area but what made it even more unusual in a broader sense was the fact that Coronevsky had been in jail for a number of years without ever having a trial. When I first learned about the case I was told he didn’t even have a lawyer in spite of the fact that he was facing the death penalty. As a volunteer lawyer for the ACLU I believed in the work which entailed monthly meetings with my ACLU colleagues on the legal panel. We had great fun reviewing complaints that poured in every month from every form of wacko in the City about every imaginable perceived wrong. However sprinkled in with all the nuts were cases of great interest and sometimes importance which made volunteering worth the effort.
So it was with some curiosity that I decided to drive to El Centro to see what it was all about. The town was a little over 100 miles away and I was accompanied by my investigator George, a former secret service agent, who always expected me, and everyone else, to be shot at any moment and Diane, a smart new lawyer. I always tried to have a smart lawyer by my side in case a complicated issue presented itself.
As we drove through the barren desert to investigate the situation I remembered the story of the legendary ACLU lawyer, Al Wirin, who in the late 50’s or early 60’s had gone to “the valley”, as locals called El Centro, to represent some farm workers who at that time were having continual labor problems with the farmers. Al was in bed in his motel room when the pick up trucks roared up to his door. The farmers, an independent sort of self starters were not happy that the ACLU was mucking about in their affairs. It didn’t help much that the lawyer they sent was a Jew from Los Angeles. Not being familiar with the rule of law, or not much caring for it, they burst into Al’s room with ropes in hand and proceeded to tie him up, drag him outside and threw him in the bed of one of the trucks. In a display of extraordinary good will they didn’t kill him, just drove him out in the middle of the desert and dumped him with the usual warning about “……if we ever see you again…..etc”.
I mentioned that Coronevsky hadn’t had a trial but that wasn’t exactly accurate. He sort of had one. The story that later unfolded was that the trial had started with a defense attorney from San Diego representing him. So many jurors were required for the selection process that they couldn’t all fit into the courtroom. The judge, coming from a small county that had to improvise appropriate facilities for special occasions such as the Lettuce Festival came up with a resourceful solution. He decided to use the movie house across the street from the courthouse for the trial. It seemed perfect. The two counsel tables and a bench for the judge were set up on the stage, the jurors sat in the theater seats and Coronevsky and two deputy sheriffs sat in the projection booth looking down on the proceedings from high above in the rear of the theater. To make sure his projection equipment wasn’t tampered with, the theater’s owner/projectionist joined them in the booth. No one in the booth was particularly interested in the proceedings below. At that time lengthy and often boring jury selection was the norm so the projectionist agreed to project movies on the wall of the booth. Coronevsky requested a Walt Disney movie but was outvoted by the deputies who learned that the projectionist had a collection of porno movies which apparently were hard to come by in El Centro.
And so it went, juror number 23 related his family’s relationship to law enforcement while the deputies and Coronevsky sat watching the nuances of fellatio.
On the first day of jury selection lunch time rolled around and the deputies realized that no one had brought sandwiches from the jail; a minor administrative error that the resourceful deputies deftly handled in what seemed to them to be the logical thing to do. They took Coronevsky down the street, albeit in leg irons, to the local Mexican restaurant where all the courthouse regulars ate. With a clanging sound they sat down in a booth and were munching tacos when the door swung open and in walked the Sheriff of Imperial County who, along with many other government types, regularly ate in the popular restaurant. The Sheriff, having had more law enforcement training than the deputies, realized that this practice could be criticized from a public safety perspective. The thought also crossed the Sheriff’s mind that he had a jail full of inmates chewing on bologna sandwiches in their cells who would jump at the chance to sue him for a denial of equal protection. Bologna just doesn’t have the same nutritional value as a carne asada burrito and a cheese enchilada and then of course there is the issue of the difference in the luncheon surroundings. In any event, as the story was told to me, the Sheriff after uttering a few profanities at his deputies ordered Coronevsky taken back to jail. Another constitutional crisis avoided. After arriving in El Centro we headed toward the El Centro Public Defenders Office, which I soon learned, was located in one of the seedier motels in the valley
As we pulled up to the “PD Motel” we were met by a curly blond headed young man who introduced himself as Chris Plourd, a brand new lawyer with virtually no felony experience who had no file, no money to hire experts and no help. He was assigned to the case. Fortunately Chris, who was to become one of the finest attorneys in the region, knew enough to know he was in over his head and made the call for help which led us to the desert that afternoon.
Chris filled us in on some of the details. Coronevsky’s trial never really got off the ground since the San Diego attorney wasn’t being paid by the County and didn’t feel that a capital murder case was how he wanted to spend his pro bono hours. So several years before our arrival and after the porno lunch caper the case was assigned to the Public Defender of the County of Imperial who decided to keep the case rather than assign it to one of his three deputies. After looking over the facts he decided that the main line of defense involved interviewing a witness in Hawaii so he flew off to the islands, I assume with his swimming trunks, and on the County’s dime to personally do the interview. Sometime after he returned, tanned and ready to get on the right side of the law, he quit his job as the Public Defender and went to work for the District Attorney who was prosecuting the case. Lest he be called upon to remember any of the details of his work he took the entire file with him to the District Attorneys Office where, all efforts to have it returned were unsuccessful. So with Coronevsky’s defenses securely in the possession of the prosecutor, the case was taken over by the second in command in the Public Defenders Office who was shortly thereafter appointed to the bench. With his second lawyer now the prosecutor and his third lawyer now a judge Coronevsky’s options were running out. There were only two lawyers left in the public defender’s office to handle the case. One was known for his aversion to work and a love of sick leave. The other was Chris Plourd.
I was curious why Coronevsky hadn’t been jumping up and down demanding a trial during his years of confinement. As the story unfolded it turned out that he kind of liked jail. The jailers had made him a trustee and with his governmental background the other inmates respected him and it wasn’t such a bad life. After all, as long as he was in jail he remained unexecuted. There was a certain pragmatic logic to the entire affair. But Bob was no shrinking violet. When pushed he could take aggressive action. As an example at one point during his stay the jail doctor had found a potassium deficiency in Coronevsky’s blood work and told the Sheriff to give him a banana every day. The jailers who apparently didn’t take kindly to this type of prisoner coddling mumbled something about “…..we ain’t got no stinkin’ bananas” and refused. Coronevsky, a longtime advocate of adequate prisoner health care, filed what was later referred to as the “Banana Writ” and won the right to, if not a lawyer, a banana a day. All nice and legal like.
So it was that I became involved in the case. George and Diane and I spoke to Chris and met Coronevsky, who was indeed a pleasant fellow. It would be nice to weave yarns about my role in the case but it wasn’t nearly as interesting as what had already happened. The County of Imperial simply wouldn’t pay for a lawyer to defend him and no one in the Public Defender’s Office was qualified to represent a defendant in a capital murder case. We returned to San Diego and Diane went about filing the legal documents and I subpoenaed the entire Board of Supervisor’s to appear at a hearing in the Superior Court in El Centro to explain why they wouldn’t pay.
Several weeks later the three of us walked into the courthouse in El Centro ready to make the Constitution a living document. On the way down George kept telling me to stick close to him because his sources had advised him that they were going to kill me. As he spoke he continually looked out the rearview mirror. But then George always looked out the rear view mirror and spoke of imminent violence. I asked Diane if she was scared and she laughed so I relied on her superior intelligence and relaxed. Besides George was packing the largest gun I had ever seen. The reality of the situation was that there was some room for concern since the Chairman of the Board of Supervisor’s was a powerful force in the valley, carried a cane and at one point had used it to attack the deputy public defender who was representing Bob at the time. Apparently the Chairman had decided that Bob was guilty and anyone who wanted to waste money in his defense should get an old fashioned thrashing. Word on the street was that he was elected on a ticket which advocated balancing the budget through public beatings.
As we entered the lobby of the courthouse a deputy sheriff approached me with a dark look about him and came within inches of my face and in a low voice said” Are you Adler?”. George inched closer and moved his hand to his jacket pocket area. I replied ‘Yes, I am”. “Well, I’m the one who served the subpoena on the Chairman and I just wanted to tell you something”. George was now on high alert. “Yes what is it”, I said. The deputy now had a very serious look on his face “Go get that son of a bitch”. He then turned on his heel and turned away. Things were looking up.
The hearing only lasted a few hours. The judge was knowledgeable and unfazed by the politics. His order was straight and to the point. The County Auditor, appropriately named Mr. Titsworth, was to pay for a private attorney to represent Coronevsky. As he left the bench the judge asked me to come back to his chambers. I sat down and he asked if I would take the murder case. I explained to him that I didn’t feel comfortable taking a case that I had forced the county to pay for but I assured him that I would find an attorney in San Diego who would take it. I already had someone in mind.
Steve Feldman was an ex public defender who came to work in my firm and quickly developed a reputation of being tough, smart and once he had bitten your leg he would never let go. Steve was delighted to take what proved to be an interesting case and to say he ran with it would be an understatement. By the time he was done with the case Mr. Titsworth himself, as the California Supreme Court later observed “took up residence at the Imperial County Jail” for refusing to pay for the defense. Titsworth had fallen on his own sword in backing the Board of Supervisors in their assessment that payment of the $13,314 requested would “bankrupt the County”. The Supreme Court, ever vigilant to the truth, noted that in their view and pursuant to generally accepted principles of subtraction the County’s $2.3 million dollars in their general fund was a greater amount than that requested.
By the time the case was over Coronevsky had been represented by eight different lawyers, including three public defenders who later were hired by the district attorney’s office and as a result the District Attorney was relieved of his responsibilities and the Attorney General took over the prosecution. And of course Titsworth was represented by the County Counsel. The County had succeeded in taking a straightforward murder case and turning it into a legal and financial orgy.
With all the preliminary fee wrangling behind him Steve sought and obtained a change of venue to Orange County and then tried the case and won an acquittal. The legal defense, I’ve been told, revolved around a time of death issue. I personally think it was a combination of good lawyering and bad karma-the county deserved to lose.
Several weeks later I got a call from Bob thanking me for the work I did and “By the way I’m in the shrimp business and I’d like to come down to San Diego and give you some shrimp as a way of saying thanks”. Since I had a policy of never accepting shrimp from clients who had been acquitted of murder I thanked him and declined. Lawyers all have their little quirks. I heard that Bob had a heart attack and died shortly after the trial. I’m not sure if there was an autopsy and I didn’t ask. I was busy with this other case which involved…………………….
©2006 Tom Adler

Part 2 - Why Are You A Criminal Defense Lawyer?

WHY ARE YOU A CRIMINAL DEFENSE LAWYER AND WHAT ARE YOU GOING TO DO ABOUT IT? Part 2

Last year Forum reprinted an article (Volume 33) that I authored which had originally appeared in the San Diego Criminal Defense Bar newsletter. That article said in relevant part:

“How many of us are actively involved in the issues of global warming, health care, Iraq, corporate fraud and greed, healthcare, education, poverty, discrimination, capital punishment? But, you say, CDBA isn’t the right place for these issues. To this I reply, why not? Criminal defense lawyers are, in my view, perfectly suited to taking on the larger issues destroying our country. They’re trained, smart, tough and take on the government on a daily basis. Who do you trust more to do the right thing — a politician or a criminal defense lawyer?........... These are serious times for our country and I don’t see too many people doing anything about the forces of evil. No one else is going to win these battles except warriors. I think that’s us.”

Since that time, things have deteriorated even further. I paid close attention to the firing of Carol Lam, the United States Attorney in San Diego and her colleagues and watched the subsequent disintegration of the Department of Justice into an evangelical group of lawyers playing politics with, among other things, the Civil Rights Act. There was a great hue and cry from the Judiciary Committees of both houses, the press had something to feed their talking heads and Alberto Gonzalez is still in office. In Pakistan when the President fired the Chief Justice of the Supreme Court, the lawyers took to the streets in their suits and ties and rioted. In San Diego the City Council just cut funding for the homeless shelter this winter in approximately the same amount of tax dollars they spent on hiring their own lawyers because they were worried about criminal liability arising from the pension debacle.

The list goes on and on. What I still haven’t read or heard anything about is our local criminal defense lawyers doing anything about the parade of constitutional horrors that are occurring in our country. The toughest litigators who regularly take on the government to defend a drunk driving client or murderer seem to feel that these systemic problems are something they have no control over or are too busy to deal with. Should we sit idly by while Libby gets his sentence commuted and 20 year old kids are serving 10 years for a drug conviction? Doesn’t this have anything to do with our own lives and those of our clients? Perhaps we think Washington is some far away place that we are powerless to do anything about. But we can sure try.

I looked over the CDLC/CDBA statement of purposes which appears on the new website. One of the stated purposes is to “Promote justice, adherence to legal principle and the rule of law”. Since the administration of our country controls the Justice Department and has taken over the sentencing powers of the federal court by taking care of their friends who get convicted and are intent on violating the law - the question becomes who is going to intervene? Isn’t it the lawyers charge to right injustice? Isn’t that what we are supposed to do?

President Clinton had a great idea. He held a symposium of business leaders who were charged $15,000 to attend and, in addition, had to commit to taking on a project to solve one of the world’s problems. It was and still is a large success. Why would they do this? Why is Bill Gates devoting his life to giving away money? Why are there successful civil lawyers who travel to the South and spend years defending death penalty cases pro bono? The answer is simple. It’s good work. It’s a lawyer’s work. And if you do it you will be rewarded in ways that mean more than money and which you can’t understand until you’ve done it.

Rants really don’t mean much unless there is a call to action. Here’s what I suggest.

Criminal defense lawyers who can afford it (and you know who you are), take a sabbatical and choose something that really bothers you - whether it is homeless funding, secrecy of government records, denial of health care, conservation, global warming or any other issue where you have an interest and feel you can accomplish something – and go for it. Organize or litigate or badger or do what lawyers do to effect change. For those who can’t afford a sabbatical, make it a part of your practice to do some kind of pro bono work aimed to correct some of the problems of the world. For a quick look at what the possibilities are, check out the following lawyers:
http://en.wikipedia.org/wiki/Morris_Dees
http://en.wikipedia.org/wiki/Gandhi

Not only is this work good for a lawyer’s soul, but the world needs more of these kinds of lawyers. Besides that, it could even turn out to be quite a bit of fun.

Tom Adler
Founder and Past President-CDBA
Past President-CDLC

Part 1 - Why Are You a Criminal Defense Lawyer?

WHY ARE YOU A CRIMINAL DEFENSE LAWYER
AND
WHAT ARE YOU GOING TO DO ABOUT IT?

By: Tom Adler


I love lawyers - particularly criminal defense lawyers. Of course there are exceptions for certain individual lawyers but in the main I love them. They have a heightened perception of justice - what’s right or wrong - what’s fair - and they’re willing to put themselves in harm’s way, to take on a judge or a prosecutor in spite of the fact that everyone in the courthouse and occasionally even in the media wants their clients’ to be locked up or legally killed. Some of my colleagues have received anonymous death threats just for representing unpopular clients. They largely stand alone without the benefit of support that is available to lawyers in the large civil firms. I’ve often wondered why a lawyer chooses criminal law as their practice area. My own motivation was revealed to me in a conversation I had with Leslie Abrahamson during a CACJ Board meeting. I asked her why she thought we had become criminal defense lawyers and she looked at me like I was really stupid (in comparison to Leslie, most people are) and said, “For Chrissake - we’re Jewish”. Of course, she was right. Jews have historically been worked over by all kinds of regimes and anti-Semites and it’s almost like we have developed a justice gene that compels us to take on the causes of the oppressed. I was forced out of Austria at an early age by Hitler and most of my relatives were killed during the Holocaust.

So why do non-Jews throw themselves in harms way by becoming criminal defense lawyers? Although I have no proof, I suspect that if you delve into their psyche you’ll find some trauma in which they were unfairly treated. Maybe it was by a parent through physical or mental abuse - maybe by a teacher or a group of mean friends. It’s not really that important - somehow they just don’t like being messed with - thus their career in criminal defense.

But there is a problem with criminal defense lawyers as a group. A few months ago I learned that a scholarship had been named in my honor by CDBA. Since I was still alive, I was fortunately able to express my appreciation. I was also invited, as the first president of the organization, to a celebration of CDBA’s 26th anniversary. It was good to see so many people I hadn’t seen in a long time and share the conviviality of remembering battles won and some lost. But what I mainly felt was the same thing I felt after my presidency ended 24 years ago. There had been plenty of talk at meetings about cases individual attorney’s had won, stands the organization had taken against a variety of evils, awards received, how bad some judges were and lots and lots of display of ego - a subject of which I know a lot about - having indulged myself many times over the years. At the meeting, my name was mentioned several times and there was even a round of applause. I was again most appreciative. It’s a good idea to recognize lawyers for their accomplishments especially in criminal law which by its nature provides for so little positive feedback. But something was missing. I noticed the absence of what we used to term the “good old boys” of which I was a member a while back. These were the established well-respected lawyers who normally only appeared at meetings if there was something to be gained (such as when we hosted judges at the meeting and they could chat them up and attempt to curry their favor).

I also noted the absence of public defenders. I’m not sure why public defenders don’t attend however I’ve always felt that their caseloads forced them to concentrate solely on their individual clients with little interest in the big picture other than grousing about various injustices in the courthouse.

This brings me to the reason for this rant.

I’ve seen enough awards and received enough recognition myself to realize how important it is to the individual recipient. However, these awards are soon forgotten but society’s ills remain until someone does something about them. I think that the meeting that I attended was probably representative of most of the meetings. It was a time to enjoy the company of our colleagues, to make each other feel a common bond and to generally have a relaxing time. It was very much like the meetings that we had over 20 years ago. In my view, however, it’s not enough.

I have known many outstanding criminal defense lawyers who I think did excellent work. However, those whom I really liked and respected the most were the ones that saw beyond the immediate client and focused on the wrong that needed to be rectified. These lawyers worked for no particular fanfare and no need for recognition. They simply took it upon themselves to fix the problem. Steve Perrello, who recently passed away, is a good example. For his entire career he worked alone from his small home office where he fought the state prison system. He had little help, made very little money, asked for no recognition and just did what he thought needed to be done. In other words, he practiced law the way lawyers should - leaving something in the system better than when they started.

This principal of working for the overall good was hammered into my conscious mind years ago when the public defender called me and asked me to do something about a judge in North County who had kicked the public defenders out of his arraignment court and proceeded to jail people who appeared without the benefit of the PD’s counseling services. Why the public defender didn’t do anything about it, I don’t know. From my viewpoint, however, deep in my unconscious mind, I must have had scenes of Jews being carted off to concentration camps because I proceeded to file a class action writ of habeas corpus (I still don’t know if you can do that). I won in the trial court and the appellate court and the mean judge lost the next election because of the bad publicity. What a rush! Something I did actually made a difference systemically. I was hooked.


At the 26TH anniversary meeting I listened to the list of accomplishments of the organization. Frankly, at the risk of catching some flack, I was unimpressed just like I was unimpressed with the accomplishments after my 2 ½ year stint as the first president. Most of the accomplishments have been related to money issues re: contracts and some issues regarding the functioning of the courts. In no way do I mean to belittle this function of the organization. It’s important and it needs to be done. The question is, in this day and age (which is a lot different than 26 years ago), is that all that criminal defense attorneys should be focused on as a group?

Criminal defense lawyers, as a rule, are one issue actors. By that I mean that if their client is getting screwed over, they will fight like a mother bear protecting its cubs or if their fees are messed with by the courts, they will draw their swords. That mentality may have worked before but times have changed. It’s no longer enough.

How many of us are actively involved in the issues of global warming, health care, Iraq, corporate fraud and greed, healthcare, education, poverty, discrimination, capital punishment? But, you say, CDBA isn’t the right place for these issues. To this I reply, why not? Criminal defense lawyers are, in my view, perfectly suited to taking on the larger issues destroying our country. They’re trained, smart, tough and take on the government on a daily basis. Who do you trust more to do the right thing - A politician or a criminal defense lawyer?

As one of the original founders of the organization, and with a lot of white hair, I feel entitled to speak the utmost syllable of my convictions even if it may rankle some members. Let’s try a little less self-adulation and think larger. Wouldn’t San Diego be better off with a good anti-lobbying law? What a fun project for some smart lawyers. And there’s a lot more. All we need is for the good old boys and the public defenders to show up — and for the active members to see that they do. If needed, rename the organization. How about the San Diego Constitutional Law Society? This would broaden the areas of discussion and perhaps energize the group. I think CDBA is very lucky to have Mark Adams as its president this year. He sees the bigger picture and, in my view, will be very effective in leading the organization if he receives the backing of everyone, including the good old boys and the public defender.

These are serious times for our country and I don’t see too many people doing anything about the forces of evil. No one else is going to win these battles except warriors. And I think that’s us.


©2006 Tom Adler

Another OpED

Where Are The American People?
by Tom Adler


I was born in Vienna a month after Hitler marched into Austria and took over the country. I was one of the fortunate ones who got out. During the war I lived in a small town in New Jersey. I remember collecting paper and old tires for the war effort. There was food and gas rationing and little flags hung in the windows of homes where young men were away overseas fighting. One star was placed on the flag for each son or husband who was serving in the military. Some flags had three or four stars. If the star was gold, the loved one had been killed in action. I once saw two gold stars.

Back then everyone pulled together for the common goal of defeating the enemy. It felt good to be part of a country that was intent on not letting demagogues take over the world. When I became old enough I joined the military and then went on to become a lawyer. This country has been very good to me. I have always been proud to be an American and have always loved my country and enjoyed and understood the importance of the rights given to me by the Constitution. In the last few years, however, it’s become clear that our freedoms and way of life are being challenged by extremists who are intent on spreading their religious zealotry all over the world by randomly killing innocent people. It is a difficult problem that requires intelligent, forceful action.

The latest polls indicate that the President’s popularity is at 29%, the lowest ever. What our government has done to safeguard our country has been to act in a manner that is so deceitful, incompetent and reckless that the 29% must be comprised of those who have no understanding of concepts like the public good or who are just terminally uninformed. This is the government run by what President Dwight Eisenhower warned us about when he left office; the military industrial complex. It isn’t really necessary to go into the parade of horribles that this administration has put the American people through. The lies and deception Cheney and the neocons dreamt up to justify the Iraq war, the incompetence of Katrina; denying that global warming exists; ruining and evangelizing the Department of Justice, taking care of their fat cat friends through tax breaks for the rich; lining the pockets of corporations like Halliburton through sweetheart contracts and on and on. I no longer feel the need to argue about these issues since any thinking person that doesn’t realize how this country is being destroyed by this administration just doesn’t get it and probably never will.

The fact that Congress has been unable or unwilling to stop this runaway train is due to the fact that there has been no legislation that has been successful in stopping the lobbyists and their never ending stream of money, golf trips and favors which have bought and paid for our representative’s votes. Consider a recent bill that came before Congress that would have allowed the federal government to negotiate the prices of prescription drugs for the Medicare program. What a great idea—the American way - capitalism at its best –competition - let the market place determine costs. It went down to defeat because of the pharmaceutical lobby. As a result seniors will not be able to afford needed medicine or will cut their pills in half to make do. And lest we forget, the Surgeon General won’t be able to make a speech about it without clearing it with the White House and if approved he’ll have to mention Bush’s name three times.

So why the rant? Mainly to discuss the worst part of this; the apathy and unwillingness of the American people to become involved. Sure, everyone stands around the water cooler and says how dumb Bush is and makes jokes about his latest malapropism. But why aren’t people in the streets demonstrating? In Pakistan when the President removed the Chief Justice of the Supreme Court, the lawyers, dressed in their suits and ties, rioted in the streets. In France, mention shorter vacations and you’ll have thousands of people waving flags and marching. The answer is that we are living in a “we generation”. As long as I get mine nothing else matters. Youngsters no longer have a sense of what this country is all about. A friend recently told me that her daughter was learning about cultural diversification in high school and the lesson was devoted to watching the movie “Borat”. The only thing that would mobilize the citizenry would be a compulsory draft. But the draft dodging Cheney and Bush and the faceless neocons who run their dog and pony show realize the political danger of sending the general publics kids to war. Instead they keep raising the length of time the worn out soldiers spend in this civil war and don’t give them the armaments to try to keep them safe.

In the face of a morally bankrupt administration seemingly intent on destroying our country what can be done before they are run out of office in 2008? People have got to get rid of the “I got mine” philosophy. And the people who haven’t “gotten theirs”; namely the poor and all of the other disenfranchised people who feel helpless to do anything, have to get involved. Demonstrate, vote, send letters and emails, put bumper stickers on your cars, attend meetings and speak up. How many of us are actively involved in the issues of global warming, health care, Iraq, corporate fraud and greed, healthcare, education, poverty, discrimination, lobbying reform?

Ordinary people fought for their freedom from the British and have fought oppressive regimes in many wars that were not nearly as important to preserving our republic as the war we are now in. If we the people don’t take charge by demonstrating our opposition to the war and the many other issues that are destroying our country, who will? America is being run by corporate and moneyed interests and ordinary working people have become secondary to their bottom line. The politicians have been bought and paid for. These are serious times for our country and I don’t see too many people doing anything about the forces of evil. No one else is going to win these battles except us.

OpED

A Kinder, Gentler Approach To Litigation in Our New World
by Tom Adler

Sometimes it’s good to just step back and take a deep breath and ask yourself some questions. Things that maybe you haven’t had the time to ask since before law school. Things like “What am I doing?” or “Why am I doing this?” Sometimes in the crush of lawyering the priorities of our lives become blurred and even extinguished. It leads to the refrain heard more and more often in courthouse halls and outside deposition rooms…….“ I wish there was something else I could do with my life”

Certainly the events of September 11th have given many of us pause to rethink our values of home, family, security, freedom, religion, charity and a host of other issues we routinely gloss over as we rush about filing motions, meeting deadlines and all the other things that lawyers do. However before we settle back into our old ways of lawyering and adjust to the pace of the war against terrorism, let’s take that deep breath and examine our way of doing business particularly in light of the war that was so cruelly put upon us on September 11th.

The Association of Trial Lawyers of America and many attorneys around the country have called for a temporary moratorium on lawsuits arising out of the terrible tragedy that has struck our country. Certainly a laudable position. But is it enough?

As a litigator for twenty-five years I always took pride in my toughness, my ability to stand toe to toe with any lawyer, any firm, anytime. Now as a mediator for the past four years with a considerably greater number of strands of gray hair it has become clear to me that the John Wayne school of lawyering has some serious drawbacks, Clearly there are some cases which just need to be litigated. They are honest factual or legal disputes which require a judge or jury to make the ultimate decisions. Many of them involve important issues of personal rights or public policy. Conversely, the vast majority of cases do not.

The difficulty arises in the fact that virtually every case has some dispute that arguably just “has” to be decided by the court, thus the expression “see you in court”. The decision making process of which cases go to trial and which are resolved and at what stage they are resolved is generally driven by the lawyer. Although there may be some obvious outside pressures bearing on his or her decision -making such as the client or an insurance company, generally the lawyer is the main impetus of how the case is resolved. His or her abilities, experience, personality, training, financial position, philosophy and wisdom all guide the ultimate outcome of the case

For the past few years the Superior Court in San Diego has been engaged in studying the effectiveness of mediating cases early on in the litigation process. Preliminary statistics indicate that a large number of these cases settle at the mediation hearing with many more settling afterwards but before trial.

What can we as lawyers learn from the difficulties faced by our country as the result of the World Trade Center bombing? Litigation over the problems created by the attack on the United States has the potential of draining an enormous amount of our financial, judicial and emotional resources. It could engage many of our brightest lawyers and businessmen in activities which would be far better spent in attempting to seize the assets of our adversaries or to help the country regain it’s stable footing.

It’s impossible to say how all of these disputes will ultimately be resolved. But the rationale for a litigation moratorium carries over from the Sept 11th tragedy into our everyday litigation responsibilities. It has become increasingly clear that mediation is a cost effective, quick alternative to litigation .It works in a large number and variety of cases. It can be done by the parties and their lawyers simply agreeing to do it without filing a lawsuit. Or, of course, it can also be done by a judge two days before trial, with the parties kicking and screaming. Somewhere in the far reaches of my fading memory I recall a conversation I heard that began:

“Hey Jim, this is Bob. Listen I had a client come in yesterday…..
says your guy overstepped his lease agreement. Got any time to talk?…..we should be able to work something out…..Great!…how about noon on Friday at the Hobnob. I’m buying”

Even in Afghanistan, where the rule of law has broken down, tribal warlords sit in circles with their members mediating all manner of disputes quite successfully. In addition to the everyday disputes that comprise the bulk of a lawyer’s practice mediation has been used to resolve fishing rights between Indian tribes and local townspeople in Oregon. Agreements between homeless people, business people and social agencies have been hammered out by the mediation process. It’s routinely used in environmental issues.The work of former Senator George Mitchell in Northern Ireland also comes to mind

Why can’t we do more of this type of work? Isn’t it more personally and professionally satisfying than rattling our sabers as we ritualistically throw paper at our opposition in an effort to see what he or she is ”made of”? As I think back on it I think the lawyers who garner the most respect are the ones who get a good result for their clients with the least amount of noise. The ones who know the law, are congenial and conciliatory and who you don’t realize have taken you to the cleaners until days or weeks after the case is over. This in no way minimizes the necessity for litigation in the appropriate cases or the respect which is well deserved for good trial lawyers.

Let’s face it-litigation is sexy, exciting, heady, stuff. Yes, you may get the big bang or win the stunning defense verdict. But let’s be truthful-it also creates immense problems in terms of financial and emotional costs to all the parties not to mention the costs to society and the justice system. Lawyers are the guardians of our system of justice in the broadest possible sense. It is our responsibility to assist people in resolving their problems, not to create additional ones. Simply agreeing to put litigation off to a future date is commendable. But we need to go further and make a personal, moral and ethical decision not to file any lawsuit unless and until every possible effort has been made, including mediation, to resolve the matter without litigation. We need to start sitting around the campfire and talk to each other. Our country deserves no less.

Oh yes……..it also makes the answer to the questions “What am I doing?” and “Why am I doing this?” much easier to answer. The answer? …..How about “ I’m doing some good”. Certainly more satisfying than being a tough old litigator.

Copyright©2001 Tom Adler