March 01, 2017

Sidebar: The Law Is All That’s Left

Kenneth P. Nolan

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I love weddings. Everyone’s beautiful, smiling, optimistic. A tear slips into your eye as the perfect couple dances to some schmaltzy song. Happiness and success are inevitable—a life of love and laughs. Nothing can ruin the day, not even your dubious decision to jump on the stage, snatch the microphone, and sing Shout while squirming on the floor like John Belushi in Animal House.

But it’s not just the bride and groom who make me—a perpetual pessimist—see the good and promise. The bridal party, which used to be a few close friends but now can fill a church, is smart, articulate, and successful. Even at breakfast the next day, the young with their hoarse voices and throbbing heads are impressive. My children’s generation, I conclude, is better than mine. Then I climb in the car and turn on the news.

I’m used to mayhem, tragedy, and animus. Growing up in crowded, dirty Brooklyn, you become inured to everything—the homeless, the deranged, the elbow in the back on the F train. I can pass the most desperate who beg for just “some change” and never consider reaching into my pocket. Life is tough, I was always taught; get used to it. Sadly, I did.

But I never thought I would worry about our nation—its institutions, its people, its stability. After all, I lived through the Vietnam era with its divisions, protests, and violence. Students shot on campus; cops assassinated; bloody riots. Eventually, those treacherous times passed and relative calm ensued. Until the past year or two. We’re divided by income, race, class, region. And each hates the other. Demeans their views, their thoughts, their lives. Just take a peek at Facebook or any other social media site. Venom is everywhere. So is intolerance.

It’s not all our political leaders’ fault, although most make Tammany Hall look virtuous. At one time, political campaigns debated ideas, philosophies. Now each labels the other as racist, homophobic, corrupt. When the Obamas and Bushes were friendly to each other at the opening of the National Museum of African American History and Culture, it was front-page news. That’s how rare civility and respect are in Washington.

This intolerance is not limited to the political arena. Dissent is not permitted on college campuses, where differing views are trashed. Heck, you can’t even wear certain Halloween costumes. A bias incident team at one college criticized women dressed as three blind mice because it mocked the handicapped. Since when are mice so sensitive? Use of certain words is discouraged: “Crazy” is offensive to mentally disabled individuals; “poor person” should be replaced by “low income”; and at Princeton, students should avoid “man” as in manmade (handmade) or man hours (person hours) or workmanlike (skillful). How silly.

Those ever-so-spoiled students would never have survived Holy Name schoolyard where your nickname was often based on your least redeeming feature. I was Beano since I was skinny, but there was Jackie Fats, Chubby Hopkins, and Butterball Lang. Whistler Mahoney had a lisp, Moon McNally wore big round glasses, and Chin Greushaw had a prominent you know what. I won’t even bother with the ethnic nicknames, which would never pass the political correctness police (except for Falcon Aqualina, whose family was from Malta).

We need a few Abe Lincolns to redeem and reform our political system. Yet, hacked emails published by WikiLeaks reveal petty and scheming operatives who are contemptuous of differing beliefs, of ordinary Americans. Did we ever read “That’s not right. . . . Let’s tell the truth. . . . We shouldn’t be doing this. . .”? Just once I would like to vote for someone who respects the opposition, who wants to unite rather than divide.

The media abandoned objectivity years ago. When I worked at the New York Times, way back when, the editors were vigilant in ensuring each article was nonpartisan. Even the editorials were thoughtful and professional. Not today. You know which side a publication or TV news show favors simply by scanning the headlines or viewing a film clip.

The Internet is wonderful in its magic and speed, yet sickening in that it allows vitriol to be spread anonymously. So there’s cyberbullying, slut shaming, revenge porn, and the like. The more despicable the words, the more disgusting the video, the more popular the post. In one Ray Donovan scene, an actress is crazed because other celebs circulated sex videos for the resulting media attention. She wants to film sex acts and have Ray leak it so her name will be equally infamous. Mirrors the truth.

Then there’s us—law. Where citizens are judged not on their beliefs but on the content of their character. Where we swear to tell the truth, the whole truth. To treat everyone—even Republicans and Democrats—fairly and honorably. Like a blindfolded Lady Justice, we members of the bar must practice our craft without prejudice or preference. Litigants must be treated equitably without regard to wealth, power, or fame.

I’m not a rube since I’ve been hometowned in plenty of courtrooms. When I was a pup, I had a huge medical malpractice case that I had to argue to a panel of a judge, doctor, and lawyer who would issue a decision on liability. The day before my hearing, I’m at a golf outing, and guess who’s playing with my adversary? The good judge, of course. It was a “welcome to the real world” moment. To his credit, the judge ignored their social relationship and ruled in my favor. I skipped down the courthouse steps with pride (and relief).

Even when Her Honor didn’t appreciate my many redeeming qualities—“This isn’t New York, Mr. Nolan. We don’t do it that way here”—I knew I always had a shot with those ordinary citizens sitting in those uncomfortable seats. The wonder of America is not with the political or financial elite, but with those who deliver the mail, repair the streets, and run into burning buildings. And that is my real fear for our nation. That those who pit one group, one race, one region against another will succeed. Thankfully, our jury system brings us together in sincere decency.

But juries are rare these days. Judges have become more powerful with rulings on the inevitable dispositive motions and on all aspects of litigation from the number of interrogatories to the time of depositions. Be careful. Some want judges to shed the cloak of equanimity and rule based on result. We must insist on objectivity and candor. Bar associations must be vigilant in preventing the political process, so corrupt and distrusted, from infecting our profession. We’re Davy Crockett at the Alamo, the last ones standing. The politicians, the press, the Internet are lost. We must maintain the ideals that continue to draw those “huddled masses yearning to breathe free” to our shores.

Intelligence, honesty, and experience are the criteria for judicial selection. Avoid political litmus tests. Once judges are selected solely on a partisan basis, then the system is worthless. It is wrong to justify forsaking the goodness of our profession for a result no matter how noble. In St. Stephen’s Green in Dublin, there’s a statue of the Irish patriot, Robert Emmet, who was executed by the English in 1803 for fighting for Irish freedom. Fearful that he would be acquitted, the English bribed his attorney, and the judge interpreted the law to ensure conviction. The justification was obvious: He was a traitor to the Crown and deserved to be hanged, drawn, and quartered. He was 25.

In these terrifying times of worldwide terror attacks, we cannot allow our legal system to subvert rights in order to punish the cowards who murder innocents. Insist that all receive a fair trial, that all rights are afforded. Not easy as the bombs and bullets spill blood and destroy so many. Our freedoms and way of life are what these zealots despise. The calls for vengeance and retribution will be loud and tempting.

As I walk through my Bay Ridge neighborhood and observe the many streets dedicated to those lost on September 11, I too would deny terrorists all rights, happy to see them rot in some dark, dank cell. But we must resist this impulse. We must allow even the evil to have rights: to counsel, to cross-examination, to a presumption of innocence. We cannot discard or ignore the very rights that make us noble.

That is why in ordinary litigation, we must respond to rancor with civility. We must not adopt “an eye for an eye,” even when motions are served on Christmas Eve, when documents are dumped a minute before the midnight deadline. We’ve all experienced all sorts of unscrupulous practices, and to react in kind demeans us, our profession.

We are fortunate to be part of a wonderful, yet flawed, system that is the only time—in addition to voting—that the average citizen actively participates in democracy. Sitting on a jury is a chore, yet fulfilling in its truth and impartiality. So stand strong and protect our legal institution and its rights and responsibilities. For if we lose it, we may lose our country. 

Kenneth P. Nolan

The author, a senior editor of Litigation and the author of A Streetwise Guide to Litigation (ABA Publishing 2013), is counsel to Speiser Krause, Rye Brook, New York.