Wednesday, August 24, 2016

"The only law was the judge." If you want to take over the world, don't worry about becoming president.

I was reading a wrap-up of the end of written by Tom Scocca, when he said the quote that is the title of this post.  Scocca wrote that after detailing, at the end of the Gawker case, how the judge repeatedly denied Gawker a stay of the judgment for a period of 7 days; Gawker wanted to have the judge stop Hulk Hogan and his shadow puppet master Peter Thiel from ransacking the company while they appealed the defamation ruling. The judge wouldn't give the even 7 days, making it necessary for Gawker to file for bankruptcy before filing for appeal.

The upshot of that is, if Gawker wins on appeal, the result might be a hollow one. This week, Gawker was bought at a bankruptcy auction and then shut down. Whether or not you agree with Gawker's decision to publish a story about the Hulk Hogan sex tape (I agree with it, and think the verdict was ridiculous and the result of a childish plutocrat mad that he was outed and having a temper tantrum the way only hypocritical billionaires can), the fact is that the circuit court judge in the defamation case made law.  The circuit court judge essentially issued a ruling that said If you are accused of bad enough stuff, you do not have an effective right of appeal.

I was already thinking about things like this, because last week in a case of mine, the Court of Appeals ordered us to file additional written arguments on an issue that was recently decided by the US Supreme Court. The issue itself is a somewhat arcane one, having to do with 'concrete injuries' and the concept of standing (which is the right to sue: you have standing to sue if you have suffered a concrete injury, to greatly simplify the concept.)

That new ruling, from the US Supreme Court, echoes rulings around the country from lower courts, rulings that I am acutely aware of because 99.9% of my work takes place in lower courts -- in the courts that are in the local courthouse downtown in your city, rather than the lofty appellate courts in Chicago, or Washington. I have never argued a case before either the Wisconsin or US Supreme Court, and I may never. But my cases have helped shape the law for as many people as if I had, for better or worse.

For most people the trip to the local courthouse is as far as it goes. If you have a traffic ticket, a minor criminal charge, a divorce, a foreclosure case, a contract dispute, if you even make it to court it would be surprising; but making it to an appellate court or the Supreme Court is extremely rare, for many reasons.

In Wisconsin, last year, nearly 48,000 civil cases were filed. Of those cases, only 600 actually went to trial. Nearly 19,000 were settled in some other way.

When cases settle, that is law. That's law happening. There's a fascinating study by the University of Chicago that demonstrates that settling cases has a tendency to make it harder to win cases in the future. Here's why, in a nutshell: If you are a plaintiff, you have, generally speaking, a case that is good, or bad. It is worth a lot of money, or a little money.

Good cases worth little money settle out - because the defendant is likely to lose.

Bad cases worth little money settle out - because it is often cheaper to settle than to litigate.

Good cases worth lots of money settle out - to avoid the risk of higher damages at trial or bad publicity.

The cases that make it to trial are, by a majority, bad cases in which the plaintiff wants a lot of money. More cases are tried to judges than to juries these days, and judges dispose of cases by means other than a trial. So the odds are that most civil cases a judge sees are cases that have some weaknesses, and in which the plaintiff is overreaching.  Judges tend to rule against those cases, and those rulings are upheld -- and thus the picture of the law becomes these cases cannot win.

Settlements make law, and often settlements make law because litigants can't afford, emotionally or physically or financially, to fight their opponent. Today, the opponents in cases I discussed with my clients were: two major banks, a group of unions, a lawyer from another state, and a major loan servicing company. My clients are not multinational corporations. If they did not have a lawyer who would let them pay what they can afford, they would probably not have a lawyer, and would be thrown out of court.

In court, the judges at the lowest level often make law informally, as well. If a judge rules in your case and you cannot appeal to get a reversal of that decision, that decision is your law. Even if it is blatantly wrong (as sometimes they are, not always, or even often, but sometimes), if you cannot get an appeal filed, you are stuck with it. Sometimes, as with Gawker, you are stuck with it even if you can appeal.

Judges run on platforms of law and order, criminal sentencing, the like, but the decisions judges make have to do with insurance coverage, with custody and placement of children, with money owed by small businessmen, with what to do about kids with parents who cannot handle the job of being a parent.

Which brings me back to the point about the judges making the law. Within the past few years in Wisconsin, there have been overt attempts to roll back consumer protections: a law was passed limiting the amount of attorneys' fees people like me can win from the other side (many consumer laws require that the company violating the law pay the lawyer's fees if the company loses the suit; these are called 'fee shifting' laws, and make it possible for people like me to represent someone who cannot otherwise afford to pay for a lawyer.) After that law was passed, four lawyers promptly stopped providing the kind of representation I do; I know they stopped because of the law, since they told me so. They now do something else, and I tried to pick up the slack.

Recently, another change was rammed through the state legislature, making it easier for credit card companies to sue people without providing information to them. The lawyer who helped lobby for the bill, a debt collector, talked to me about it. "Were there any debtors' lawyers on the committee?" I asked him.  "You know, " he said, sounding sincere, "We called a bunch of them and nobody wanted to help us."

"I must have missed your call," I told him.

Those are ways to change the law, but a more subtle way is to convince judges to agree with you. There have been a rash of defenses raised by debt collectors and foreclosing banks, defenses aimed at obfuscating and confusing the issues, at sub rosa raising the bar for litigants of the type I represent. Many judges rule in favor of the defenses. Are they right to do so?

"When a lawyer and a judge disagree on what the law is," a judge once told me, "The lawyer doesn't win that argument."

It often is not a question of whether they are right, or whether they are last. When a judge at the local level rules against my clients, we have to try to appeal it. Often times we appeal it under heavy attack from the other side, which files motions and complaints and assert rights to fees and claims cases are frivolous whether they are or not. (One recent case saw me spend 2/3 of my time defending our right to bring the case, with only 1/3 on the actual case.) Appeals are costly and time-consuming: appealing a case costs $10,000-$20,000 for a simple case, and if my client can't pay we have to hope we win and get paid at the end of it.

Any case a client doesn't appeal becomes the law, at least for that client, even if the judge happens to be wrong. A few years back, I had two cases pending on behalf of two different clients; both happened to be against the same bank, but were in front of different judges. The bank filed motions to dismiss on each, and claimed our case was frivolous and wanted us to pay their fees. The motions were heard on back-to-back days. The first judge, a local judge here in Dane County, dismissed our case and said we had no right to sue the bank for what the bank had done. She suggested, at least, that we could appeal and noted this was a new issue not decided before.  Out in the hall, the bank's lawyer said if we appealed the bank would continue trying to get us to pay the bank's fees.

The next day, with the same lawyer but a different judge, deciding the same exact issue against the same bank, brought by a different client of mine, we won. That judge declined to dismiss the case.

Which judge was right?

The median age at disposition of a civil case in Wisconsin is 65 months: 1/2 of all civil cases take longer than 5 1/2 years to resolve.

If you do appeal, the appeal takes even longer. The average length of time for an appeal was about 8 months, in Wisconsin. Appellate judges on average decided 185 cases each, per year. That works out to only 15 per month, but only about 1/2 of the appellate opinions are written by a judge; the other half are written by staff attorneys and approved by the judges. There is a difference.

Over the next three months, a ton of attention will be paid to presidential elections, senate races, and the control of Congress. These are important issues, and deserve attention.

But the real law is often being made in conference rooms at lawyers' offices, and in small courtrooms with no public in attendance, by judges who may or may not have any background or understanding of the case, in situations where the checks and balances we take for granted -- appellate review, the adversary nature of court cases -- is often out of whack and may result in decision-making that is not what it could, or should, be.

These things don't just affect millionaires and billionaires and websites and newspapers. The law that is shaping around you right now will determine in the future if you lose your house when you become unemployed, whether you can be sued by a company you've never heard of for a debt you don't remember, where your children or your house or your asset might end up if you have a run of bad luck or someone gets mad at you.

It is time that we, as a people, started paying attention to the system we have created, and trying to see if that system is the one we want. More and more, it seems to me like it is not, and that the country we imagine we live in is no more real than Hogwarts.

1 comment:

Andrew Leon said...

It's not that the system in-and-of-itself is not one we want; it's just that we have allowed the rich, mostly through corporations, to buy control of it. Or most of it. It always comes down to money. I mean, even the formation of the US, the revolution and everything, was all about money.