Filing a Heartfelt Appeal Against the Legal System

AuthorAdam Liptak
PositionNational Legal Correspondent for The New York Times
Pages11-13

Filing a Heartfelt Appeal Against the Legal System *

Page 11

    "One of the dirty little secrets of the legal system," Thane Rosenbaum writes in this simultaneously woolly and provocative book, "is that if people could simply learn how to apologize, lawyers and judges would be out of work."

Mr. Rosenbaum is a lawyer and a professor at Fordham Law School, but his aim here is to burn down his own house. He proposes a sort of talking cure for the legal system. There is, he says, too much emphasis on money in civil cases and on punishment in criminal ones. The system should focus instead, he writes, on the dignity of the participants and on hearing them out. The American justice system, he says, "relies too much on logic and not enough on love."

Where lawyers see a set of carefully calibrated neutral principles meant to ensure equal treatment, Mr. Rosenbaum sees a system that robs participants in lawsuits and prosecutions of the opportunity to tell their own messy, contradictory, inconclusive stories. Where lawyers see legal doctrines that prevent the filing of stale claims and the presentation of irrelevant evidence, he sees a conspiracy to silence the truth.

He works, then, from first principles. His suggested reforms are powerfully impractical. But that does not mean he is wrong.

It is certainly true, for instance, that treating people with respect and acknowledging responsibility is both the decent thing to do and a surprisingly effective way to avoid lawsuits.

But the legal system often penalizes and thus discourages doing what is right. The typical automobile insurance policy literally forbids apologizing for an accident. And lawyers, whether paid by the hour or by a percentage of what they recover, have no particular incentive to resolve cases at the outset in exchange for only words.

In contested cases, too, many people want simply to be heard. They often prefer a day in court -"the ventilation of a public griev-Page 12ance," as Kafka's Joseph K. says in "The Trial"- to a private settlement. But the legal system cannot accommodate all of those stories, and lawyers and judges sometimes work hard to make sure they are not heard.

Trials are heading toward extinction; most cases end in settlements or plea bargains. Civil settlements, Mr. Rosenbaum writes, "merely serve to silence the story in return for a cashier's check."

Plea bargains are even worse. "We tolerate the idea of putting people in jail for crimes for which they were...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT