The Real American Skating Stars

Lawyers filed thousands of lawsuits claiming silicosis injuries. Defense lawyers demonstrated the medical evidence was phony. A federal judge threw out most of the cases because of pervasive fraud. The lawyers? They skated.

Lawyers filed hundreds of lawsuits claiming sterility based on pesticide exposure. Defense lawyers showed that most of the claimants had never even been exposed. A California state judge threw out the cases because of pervasive fraud. The lawyers? They skated.

With alarming regularity, ambitious prosecutors have convictions tossed out because they withheld evidence. Clear cases of prosecutorial abuse. The lawyers? They skated.

Is there a pattern here? Evidence is manufactured, altered and withheld, but the lawyers suffer no consequences. Why? It's not unlike the Senate ethics committee investigating one of its own. When the inquiry ends with the inevitable conclusion that there's no credible evidence of wrongdoing, are you really shocked? In California, one lawyer has just been disbarred for the third time. So much for the idea of a profession policing itself.

When other businesses get caught with their hand in the cookie jar, Congress holds hearings. But when lawyers get caught? Nine point eight. Almost a perfect score. Man, those lawyers can really skate.

Is That Even Legal?

Consider the tale of a trucking company. It was a good company, but still had its share of accidents. As you might expect, the company was sometimes dragged into court. The trusted defense lawyer did a good job defending the lawsuits, but the owner was deeply troubled by the expense and disruption. After thinking long and hard, he discovered a pattern. Most of the accidents occurred when his truck was making a left turn. Within a year, he significantly reduced the number of accidents and the number of lawsuits. How? He issued a simple directive: my trucks don't make left turns.

I first heard that story on June 12, 1986. It came from Louis Brown, professor Emeritus at the UCLA Law School and the Father of Preventive Law. It took less than a minute, but forever changed my perception of the business/legal relationship.

For over a decade Professor Brown lavished time on my apprenticeship. As both mentor and friend, he inspired, encouraged and challenged me to help people avoid needless legal entanglements. His objective was no less than world peace. So far I've had to settle for helping people avoid lawsuits when they can and deal with them when they must. But as a recovering lawyer whose powers can only be used for good, I'm not finished yet.

Rx for America's Legal Health

Here's an eight word prescription for America to slash the cost of health care and end the obesity epidemic to boot:
    * eat reasonably
    * drink responsibly
    * exercise regularly
    * don't smoke

That's it. Simple. Intuitive. Obvious. And you know it would work wonders. But not easy.

Likewise preventive law. Never heard of it? I'm not surprised. Although widely embraced and religiously practiced by big companies, small business hasn't gotten the memo.

Professor Louis Brown coined the phrase "Preventive Law" In his 1950 book of the same title. A genuine thought pioneer, he delivered the core message persuasively in the very first sentence: "It usually costs less to avoid getting into trouble than to pay for getting out of trouble."

Ah, but therein lies the rub. You have to recognize trouble in order to avoid it. Like Wesley in the fire swamp in the cult classic "The Princess Bride," once you learn to identify the hazards you can easily avoid them.

When life collides with law, you land in the lawyer-infested toll thicket and own a crisis. When law comes to life, you avoid needless entanglements and create opportunities.

Lawyers didn't deliver that message to big business. Big business demanded that service from lawyers. Architect or fireman? Prevention or remediation? A simple choice. And it's easy, too.

Rubber Yardstick

A lawsuit to collect on a promissory note has very few moving parts. A properly signed note and an allegation of non-payment will do. Defeating the action takes proof of payment or proof of fraud.

The promissory note I sued on gave the lender the right to declare the whole amount of the note due immediately if the borrower missed a single payment. The borrower missed several payments and finally refused to pay anything at all. The lender exercised his right to claim the entire unpaid balance. The case went to trial. I presented all the evidence in less than five minutes. The borrower didn't have a lawyer and offered no evidence. Zero.

The judge looked at the promissory note and then at me. "Well counsel," she said, "you've established the facts and the law certainly supports your claim."
Then she looked at the defendant.
"Do you have the money?" she asked.
"No," he replied.
Then she looked at my client -- not at me -- and said, "Why don't you just take the payments."

The gavel came down. The trial was over. The judge slinked off the bench and into chambers. The bailiff had to restrain me from following her.

Why would a judge brush aside the facts and ignore the law she had sworn to uphold? What on earth caused her to act as she did? It was nothing I brought into the courtroom. She said as much. It was nothing the defendant offered as evidence. He offered none. Must have been something she brought with her. Could it have been empathy hiding under her robe?

Within thirty days of that verdict I sold my law practice and started a two year sabbatical. Now President Obama seeks to appoint judges with empathy. Be afraid. Be very afraid. Personally, I'm scared to death.