It's Time to Put a "Governor" Back in Our Discourse, 0321 COBJ, Vol. 50, No. 3 Pg. 4
| Author | BY MURRAY I. WEINER |
| Position | Vol. 50, 3 [Page 4] |
AS I SEE IT
BY MURRAY I. WEINER
Older cars used to have a "governor" that prohibited them from reaching excessive speed. Newer cars no longer use this device to control engine speed. Likewise, the "governors" that used to limit discourse in our legal system to what is civil, rational, and reasonable are also gone, or are largely being ignored. These governors serve a critical role. It's time to put them back in place.
Law without Limits
Our inability to place limits on what we are willing to do or say, and the court's unwillingness to call us on it, has fostered a mindset among lawyers that "you can get away with anything, at least for a while." This way of thinking has manifested within the legal profession in two troubling ways.
Frivolous Lawsuits
We see a lack of governors when lawyers and litigants file lawsuits that are frivolous or absurd on their face. The rationale for filing these cases is threefold. The first is "I can, so therefore I will." To prepare a complaint all you need is a computer, a typewriter, or a pen. Everybody has access to one of those. And if you pay the filing fee, the court will accept it.
The second rationale is "Well, let's file it and see what happens!" The filing lawyer knows this isn't the best complaint or claim ever written, or even close, but figures it will cause trouble for the defendant. Since most cases settle, the lawyer reasons, this one likely will too.
The third and most abhorrent rationale for filing such an action is "The court won't do anything bad to me anyway." While the courts have tools to keep filings and arguments within a rational boundary, they are infrequently employed, and if employed, they come into play long after the damage is done.
Hollow Arguments
We also see this disregard of limits or norms in the arguments lawyers are willing to make.
Is there any basis for saying, "My third, fourth, fifth, or sixth best argument is...."? Of course not. Yet lawyers make these arguments anyway. And while judges don't often buy them, they tolerate such lawyering, rarely if ever openly calling out the lawyer or party who confuses die theoretical with the possible, or better yet the probable, all at great cost to the judicial system and its constituency.
Zealously representing our clients does not...
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