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Monday, February 08, 2010
Flaws and all, legal system belongs to us
By Alan M. Malott
For the Journal
"Justice is my being allowed to do whatever I like. Injustice is whatever prevents my doing so."
— Samuel Butler ( 1835-1902)
Q: I would ask, how often do you see the flaws in the system of law you endorse? I will ask, not what is right, but what is wrong with your legal system, and how might it be more of a level playing field for all?
A. A response to this question requires I come up with a definition of "justice." Far greater minds than mine have made the attempt. Their success has been debatable at best.
Victorian author Samuel Butler, quoted above, offered an "up close and personal" view while legendary trial lawyer Clarence Darrow dismissed the very concept; "There is no such thing as justice — in or out of court." Perhaps the definition of justice is more conceptual than concrete, so that Justinian the Great, emperor of Byzantine, got it right when he said: "Justice is the earnest and constant will ... to live honorably, to injure no other man, and to render to every man his due." His excellency described justice as an ongoing effort, and perhaps the concept of justice is so constantly evolving that the practice of administering it must always struggle to keep pace.
That said, from my perspective, there are a number of things that might make our lives, not just the legal system, "more of a level playing field for all." First, perhaps we should all heed Emperor Justinian, or the "Golden Rule" if you prefer a more spiritually based iteration, and treat others with respect and compassion.
Second, what a better world we would have, let alone a better legal system, if we simply admitted it, and apologized, when we failed to treat others as we would be treated. Recent studies in the medical field have indicated that far fewer malpractice lawsuits follow an acceptance of responsibility than a wall of silence.
Third, we should not confuse justice and fairness with favorable rulings. They are not the same thing despite the understandable attraction in characterizing them as such. Mr. Butler was just flat wrong. Selfishness is not justice. More than 30 years in the legal system has shown me selfishness is often the very root of injustice.
Fourth, members of my profession would do well to remember that winning isn't everything, but doing the right thing is, even if the fee is smaller, or maybe none at all.
Fifth, despite the pain of our current economy, we need to fund the court system adequately so that justice is never rationed. New Mexico's entire court system consumes less than 2.5 percent of the state's budget, with which we adjudicate some half-million cases a year, from the most minor and mundane to those with far-reaching effects on our institutions, our individual activities and our evolution as a society.
New Mexico Chief Justice Edward L. Chavez's 2009 State of the Judiciary address warned:
"The human consequences of court delays should excite caution. ... Children remain in harmful environments or experience prolonged instability in their lives. ... Businesses struggle to prepare reliable business plans because they must wait years for resolution of contract disputes.
"Delayed compensation for necessary medical care or lost earnings worsens the consequences of unintended and unexpected tragedies. Financial costs and damage to reputations increase while an accused waits. ... Criminal cases are dismissed without reaching their merits, depriving victims and their families of their sense of justice."
Finally, dear reader, it isn't my legal system! It belongs to us all. The legal system is the only place in government where a grievance may be brought directly to the decision maker. There are certainly those who disavow our legal system, but it seems that adherents to Mr. Butler's philosophy rarely distance themselves from the benefits of living in a society of laws, only the responsibilities that go with it. Everyone has a personal interest in maintaining a forum for the independent, impartial, airing of individual disputes and their determination. Perhaps comedian Richard Pryor said it most succinctly: "Justice is just us."
Alan M. Malott is a judge of the 2nd Judicial District Court. Before joining the court, he practiced law throughout New Mexico for 30 years and was a nationally certified civil trial specialist. If you have questions, contact Judge Malott at P.O. Box 8305, Albuquerque, NM 87198 or e-mail to: alan@malottlaw.com. Opinions expressed here are solely those of Judge Alan M. Malott individually and not those of the court.
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