Saturday, April 5, 2008

Court of Equity/Court of Law

Mark's got a new post up on his site entitled "Do You Love the Law?", that I actually found myself agreeing with more than I do with most of his articles. The whole article is a rant, but it's an enjoyable one:

The law is a street fight. It’s trench warfare. There’s nothing beautiful about it. It’s inelegant, messy and dangerous. Sometimes the right side loses. Often everyone loses.

He cites (in the comments) that what set him off was the latest issue of the Texas Bar Journal that (to use his words) "was filled with pompous asshattery".

But I think he brings up an interesting topic to those of us who practice criminal law.

Do we do what we do out of a love with the abstract "Rule of Law" or because we like to just fight for what we individually believe is the right thing?

It seems in foggy, hung-over haze from law school, I recall learning something about an old-timey justice systems where it was divided into two parts: the Courts of Equity and the Courts of Law. The Courts of Equity always seemed a lot more reasonable to me, um, probably because they were equitable. The Rules of Law were a little stuffy for my taste.

But of course, the problem with the Courts of Equity, (and, by Mark's analogy, our "street fight") is the Equity is often in the Eye of the Beholder. I have a friend of mine who likes to jokingly refer to himself as "The Ultimate Arbiter of Reasonableness". I suppose he would make a great judge in a court of equity, but let's say that, instead of him, we got somebody like Idi Amin.

I'm sure old Idi would think that he would be a tremendous guy in deciding equity. The rest of us, not so much.

My point is that the Law, in my mind, is a necessary evil, and there is certainly little about it to "love". It's there as a protection against the unreasonable mind running a twisted version of "equity".

And the sad thing about the law, is that there is just too damn much of it. And it can all get twisted in an intellectual argument so that God knows whether the true ends of Equity are ever really being served. Mark is right. The wrong side sometimes loses.

There is a bar in Downtown Houston that I went to a couple of times a few years ago. Attorneys go there and drink.

When I went, I noticed that at one section of the bar was a table where a couple of prosecutors sat with a couple of criminal defense attorneys. They were laughing and talking with each other about all kinds of topics that ranged from criminal cases, courthouse gossip, to their home lives. They all seemed very comfortable with each other.

At a table nearby, there were a group of civil attorneys, talking about the majesty of the law, and how through a certain provision in the Code of Civil Procedure, something was going to happen that dealt with a lot of money, or somethingorother. All they talked about was the law.

The members of the two tables never spoke with each other (other than a polite nod or two).

Please don't get me wrong, I'm not making fun of the Civil Attorneys, but I think that when it comes to those of us who practice criminal law, that Mark is also right. We (rightfully) consider ourselves to be street fighters. The civil attorneys are playing with money. The criminal attorneys are fighting for lives. Lives either lost, damaged or in danger of being forfeited.

We do look at the civil guys a little differently, because we have been down in the trenches. We have fought life and death matters. They have not.

It's okay, though. The civil attorneys look at us a little differently too, but that's mainly because we're poor.

The law is often times the biggest obstacle to achieving equity, I think.

I'd much rather live in a world where the kid caught with weed had to call his parents and let them scream at him, rather than get arrested. I'd rather deal with low level narcotics cases with mandatory treatment.

I would imagine the defense bar would like me for my ideas on equity in those kind of cases.

But on the flip side of that, my sense of equity would lead me to a world where people who hurt or sexually abuse children would be beaten to death with two-by-fours. Thieves who just steal for the sake of stealing (as opposed to trying to feed their family) would get a huge kick in the crotch and then released by loss prevention. People who murder? Well, that's just going to depend on the type of case it is. If you committed a mercy killing, you are probably going to be alright in my world of equity. If you killed a child under six years old? You would be wishing for something as peaceful as a lethal injection.

The bottom line is that the law does lead us to be unnecessarily harsh sometimes, and sometimes it is all that keeps us in check. I don't know if I would go as far to call it a "whore", as Mark does, but I will definitely call it a stubborn damn mule at times.

So, I guess we just all have to go back to work on Monday and keep our street-fighting ways going for another day -- striving for life, death, freedom and equity within the Courts of Law.

But none of us will find any sort of majesty in the "Rule of Law".


Mark Bennett said...

They let you into bars where civil lawyers go?

What's that like?

Thomas Hobbes said...

A lifetime ago, I occasionally would pull over kids who had a little weed or some alcohol in the car. It gave me great pleasure to have the owner grind the weed into the pavement with his heel or pour the alcohol in the ditch. The spirit of the law was served, a financial penalty was meted, and, if the owner's friends were watching, embarassment (a highly underrated instrument of behavior modification) was felt. At the same time, no one went to jail and no lives were forever f'ed up by some faraway IT system. A lifetime later, I sometimes find myself searching the law for a way to reach an equitable end - I suppose my take on justice.

I didn't end up in law school, and to whatever higher power prevented that I'll be eternally grateful.

I enjoyed your post today. I hope to see more of this when the elections are over.

Now for the fun. I give you anagrams!


satirical poky
pictorial yaks
lariat sic poky (I think this means that if you throw a lasso, you'll go to jail. However, backwards it also could mean that the slow often are lassoed.)
prick toy alias (I ain't goin' there!)
coital pay risk (Ditto!)
airsick lap toy (???)


glee yells irk (Some see her activities in that order.)
sleek lye girl (???)
keg silly leer (In college, perhaps?)
leg killer yes


shortcake lunch
unlatch chokers (Maybe appropriate?)
unearth scholck (No doubt!)
a schlock hunter
cache shrunk lot (I had to throw this one in for e-mail grins!)
cackle horn tush
scratch ole hunk (Ain't goin' there, either!)
reach schlock nut (Ditto!)
oh rectal chunks


cornbread clad ref
braced narc folder (?)
odd cerebral franc
fondled crab racer
enforced crab lard
bald card enforcer
colder barf dancer
fecal brand record (I don't wanna know . . .)

jigmeister said...

I was in that bar once with ACHL. We both got thrown out.

Unknown said...

Heh. I think Mark wins this round. Prtty funny.

Murray Newman said...

It was stuffy.

I agree with you, and I do look forward to getting away from our more political topics (for awhile) after April 8th. You know, in criminal law, they teach you that there is discretion at every level of the process, beginning with the police officer's decision to charge. I think if more officers weren't under such pressure to increase their "felony arrests" that we wouldn't see a lot of the over-crowding problems that we currently do.

And those anagrams - very bizarre.

That was almost as good as the time that you saved the peso in Mexico.

I can accept many thing being said about me, but I cannot abide by someone saying that Mark is funnier than me. :-) Please read the above post and re-evaluate who is funnier.

sandra said...

Trenches, life or death, civil or juvenile, What happened to the common courtesy of introducing all the parties or at least their roles at the table in Juvenile diversion agreements?

Murray Newman said...

I'm not sure I follow you, Sandra. What do you mean?