President's Column— It Matters, 18 VTBJ, Winter 2018-#5

AuthorGary L Franklin, Esq.
PositionVol. 44 3 Pg. 5


Vol. 44 No. 3 Pg. 5

Vermont Bar Journal

Winter, 2018

Gary L Franklin, Esq.

So, recently I was preparing a client for a deposition. In covering his background, he shared with me his military experience while serving in Vietnam. As an infantry soldier he saw substantial combat. What really struck me though was his experience of walking through villages as part of a heavily armed platoon where, in that moment, he and his comrades shared absolute power. The rule of law did not exist. In contrast, he told me that a deposition, while part of an unfamiliar and cumbersome legal process, "shouldn't be a problem."

Churchill's famous remark about a democracy being the worst form of government except all others that have been tried, immediately came to mind. While we gripe about increasingly ineffective government and protracted litigation, often with good reason, we have to keep it in perspective. Living in a society that subscribes to the rule of law with due process and an independent judiciary, as imperfect as it is, is indispensable to our way of life. Even more fundamental to the preservation of our constitutional rights is the right to a trial by jury which provides protection against arbitrary action from a corrupt prosecutor or biased judge. Compare our forms of dispute resolution with earlier and more primitive forms such as trial by battle -exactly as it sounds — or trial by ordeal where, for example, a defendant would be adjudged innocent only if they sank when immersed in water. Yes, you risked drowning to prove your innocence. So, while our more modern form of litigation deserves its fair share of complaints, we need to judge it on the scale of human experience.

Unfortunately, we are facing significant challenges to the rule of law. More and more, our population has become siloed with factions living in their own echo chamber suppressing the healthy exchange of ideas. People are conditioned to reject speech that they disagree with. It's no coincidence that public trust in government is declining, voter participation is low, and few Americans can even name all three branches of government. This toxic combination has led to increased political polarization where major domestic achievements - think Obamacare and Trump's tax cuts - are passed without a single vote from the minority party. Gridlock is replaced by executive order and the left and the...

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