We are wary of the term “victim” over here at LoS. Too often, our “best justice system in the world” comes to rest on a conclusion we used to call in the Navy 180 degrees out, and the victim is actually the perpetrator, or vice versa.
For some reason this morning we were reminiscing about why this so often happens: deep, system wide professional inadequacy. Perversion, even.
Let us revisit an old example. Here you had a house explosion that killed three people and an official investigation that was contaminated with self interest. That investigation focused on one of the three dead and suggested the house explosion was a deliberate act by him, to kill himself and his mother, who indeed died also in the aftermath from terrible wounds. A roommate died in the blast as well, and apparently the deceased perpetrator was socio-pathic enough not to care that another life would be thrown into the mix.
There was absolutely no evidence to support this terrible narrative, but the narrative stuck. Until we came along, that is, and dug up all kinds of witnesses, and even documentation, to the effect that there had been a long standing problem with strong gas odors at the house so noteworthy that one young couple had broken their lease and left, believing the house to be unsafe.
Now.
At this point the prevailing original narrative is untenable and cannot be maintained by any reasonably intelligent person, both in absolute terms and in view of the fact that at common law, still applicable so far as we know, there is a presumption against suicide.
But in the litigation the utility company’s lawyers continued to maintain – and the judge continued to entertain – this thoroughly discredited original narrative that house exploded due to the suicidal act of one of the dead.
The system is designed to rule this argument out before you get to a jury trial. We have discovery procedures, especially in civil litigation, that are intended to refine the arguments so that we’re not wasting jurors’ time with arguments that cannot be honestly held by reasonably intelligent people.
Of course, there is no guarantee that those sitting on the jury will be reasonably intelligent. So added to the benefit of not wasting time and effort, refining the dispute so that untenable arguments are not advanced guards against an unjust outcome that is not in conformity with the truth of the matter. To run with this notion a bit, you might have a juror whose ability or willingness to analyze evidence consists of siding with whatever interpretation is offered by those who are apparently in authority.
This is a common juror type. Mostly men. Women much less often.
And so the system is designed to neutralize the stupidity that might prevail if such a juror were allowed to even consider an argument we all know is untenable in advance. It wastes a lot of time during deliberations, and indeed such a juror may wind up holding out over the untenable argument and cause a complete misfire of the whole thing (a mistrial) for no good reason.
But what happens too often is that the professionals involved – that is, judges and lawyers – deliberately short circuit the system by advancing, or entertaining, an argument they can’t possibly honestly believe for the short term benefit that in this or that case is might help them “win” the case (on the part of the lawyers) or to curry favor with the establishment litigant (on the part of the judges).
And then all of the discovery, all of the effort undertaken beforehand to refine the issues and present a cleaned up and cogent dispute to a jury wind up not mattering. The system fails, in other words, not because it isn’t well designed, but because the players cannot be relied upon to be honest.
Or put another way: to work properly, the system’s design depends upon the players being honest. Or at least decent.
What bothered us so much about our house explosion case all those years ago was how fundamentally immoral it was to make, or even entertain, a baseless claim that amounted to blaming a dead man for his own death. And his mother’s.
There could be a justification for such an approach in a criminal case – say, a murder trial – where it can sometimes, with some juries, help the defense to sully the reputation of the victim of the murder. There’s an old saying in the profession: the victim is not unaccountable in his own demise. And sometimes this is true, or at least honestly arguable.
But even in a criminal trial where an attorney is defending and has adopted the increasingly discredited “zealous advocacy” approach, there is an argument to be made that where the smear is baseless and cannot be honestly advanced it would be professionally improper for a lawyer to advance it. Even if it would benefit the client.
But we here at LoS believe that in a civil trial, where only money is at stake, there is no excuse. Advancing such an argument is professional misconduct.
That’s our position this morning, in any event.