Homeowners in Homeowner Associations Face Daunting Odds

March 28, 2005

By Peter Amherst

When citizens agree to abandon a private justice system and abide by a societal justice system, they do so on the clear understanding that such a societal system will be fair, honest and just. Not perfect - but at least predominantly just.

Each citizen, whether they are rich or poor, strong or weak, gifted with a modicum of intelligence or not - all should be able to expect that the justice system meets out genuine justice in a fair, measured and expeditious manner.

So what can the average homeowner expect when he or she has to go to court?

If reports from around the country are correct, not very much. In fact, very little.

An analysis of the current system shows deep systemic fissures - from the way judges are appointed, the culture of lying among lawyers, the frightening economic power of insurance companies, and the myriad laws and rules that strangle justice and ensure the victory of the unjust.

These flaws are not just some minor pimples on the face of justice. Rather, they are cancers eating away at the very innards of the body politic. The question is how long this society will stagger on the brink of disaster before it finally falls over.

Now that homeowners in homeowner associations are targets of mafia-style legal gangs that prey on them, the question becomes even more pressing and urgent.

JUDGES

The lynchpin in the justice system is the judge. That human being who is clothed in a black robe is given the power by his or her fellow human beings to put citizens in prison and to death, and to make decisions that can financially and emotionally devastate a person's life. One would think that granting this awesome power to somebody would require the most rigorous of scrutiny both in his or her personal and public lives. What is the reality? Very different.

First, almost exclusively, only lawyers become judges. Now, if you take a random walk on the wild side through a law school, it will quickly become evident that the fundamental motivation of the vast majority of law students is money. They are there primarily because they believe that being a lawyer will enable them to become financially affluent. So, when truth collides with money, generally truth is the casualty. There are a few whose prime motivation is to help people and ensure justice, but they are normally a lonely minority.

Second, judges are appointed by politicians. This corrupts the process at its very core. Politicians do things because they want something in exchange. Candidates for judicial positions must therefore give their allegiance in some form or another. That is why in general Republican governors appoint Republicans as judges, and the same for Democrats. But justice is supposed to be blind, and how can you be blind, if you are bound to your benefactor?

The old adage says that not only must justice be done, but it must also be seen to be done. That is why it is imperative to take the appointment of judges out of the hands of politicians. A truly independent, non-political commission composed of a broad cross-section of the community (rich and poor, middle class and no class, workers and employees) must be the mechanism to appoint judges.

And the appointees should not be prodominantly lawyers. Bricklayers, bankers, teachers, young, old, rich, poor - all should have the opportunity to be the judges of justice in a society. The primary prerequisites are honesty and integrity. A clever,crooked lawyer does not serve the body politic well.

LAWYERS

The current system of training, compensating and evaluating lawyers essentially guarantees failure.

The fundamental message behind all the training is that a lawyer must win. Certainly, a few pious words are uttered about being honest but they are the proverbial sop to the guilty conscience. What comes through loud and clear is that winning is the only choice - whatever it takes. Of course, normally one cannot be crude about this, but if lying and cheating are required, one lies and cheats - prudently.

This pattern of mind is so ingrained in so many, that one genuinely wonders whether they are consciously aware of it - or whether they keep it just below the horizon.

Those with the most money, of course,can hire the best liars. That is one reason why homeowners in homeowner associations so often lose. They cannot afford the best liars.

This lying is an art. One does not lie in every sentence. One lies at the crucial points. For example, a lawyer may be seeking to impose a broader settlement on the other side that goes beyond the boundaries of the original settlement agreement, and refusing to file court documents in an effort to strongarm the other side into submission. When the other side does not surrender, but insists on adherence to the original settlement agreement, the lawyer may feign adherence to noble principles by agreeing to the original terms on the ground that not to do so, would only generate more litigation cost. Of course, there are times when a lawyer flat out lies. For example, a lawyer tells a judge that he was not present at a prior deposition, when he was there all the time.

This propensity to lie is so deeply ingrained in so many lawyers, that one may be tempted to re-spell the word "lawyer" as "liyer". This propensity is fueled in large part by the imperative to win - not the call of justice and truth. And this imperative to win is fueled by the imperative of money.

So, is there a solution to this conundrum?

One solution is to truly make lawyers who practice in court, "officers of the court". Many lawyers love to trot out this noble-sounding phrase when it suits them, but it is clearly honored more in its breach than its practice.

If they were truly made officers of the court, they would be paid in the same way that judges are paid. They would receive an annual salary. Of course, this would produce a dramatic drop in the number of lawyers, but that is not necessarily a bad thing. Today, there are over a million lawyers in the U.S., and more than 70,000 lawsuits are filed EVERY day. Based on 5 work days a week, that totals 18,200,000 lawsuits a year. That averages out to one lawsuit for every 16 people. As every lawsuit involves at least 2 parties, that means that 1 in every 8 citizens are involved in a lawsuit EVERY year. As many lawsuits last longer than a year, that figure goes even higher. Of course, there are qualifiers to the above data, but the figure is still staggering. And the above figures do not include criminal cases.

While nobody knows for sure the staggering cost of the American legal system - the most expensive in the world - the tentative figures are mind-boggling - trillions. The cost exceeds the gross domestic product of most countries. And none of it produces wealth - it simply transfers money from one pocket to another.

The above proposal would allow individuals and corporations to have private lawyers outside the courtroom - but it would forbid them to practice in a court room. Courts are supposed to be arenas of truth, and money and truth do not coexist.

The above proposal would also level the playing field. Well-healed litigants are famous for fielding "dream teams". The outcome of a case should not depend on the depth of ones pocket. One would be given a panel of lawyers to choose from for ones case.

While such a system has the disadvantage of not allowing one to choose whoever one wanted in court, the advantages are overwhelming. Wealth would not be a factor in the resolution of the dispute. The mightiest corporation would be on the same level playing field as the most impoverished citizen. For the lawyers, the culture of representation would be radically different. As their compensation does not depend on the outcome of the case, they are free to pursue the truth wherever it might lead. Strictly enforced rules would ensure that they act with true professionalism - not the feigned variety that currently inflicts so much damage.

No system is ever perfect, but the proposed system could hardly be any worse than the present system. Litigants could be required to fund the cost of the program depending on their resources, with appropriate arrangements for the indigent. As the salary of such court lawyers would be a lot less than what a private attorney charges, the costs to litigants would be dramatically reduced.

One concern is that these court appointed lawyers would become bureaucratic paper pushers. While this might be a danger for a relatively small few, experience in other areas suggests that this is not a major concern. In universities, professors are not allowed to act as private businesses towards their students. They are paid a fixed salary. And yet, nobody claims that American universities are not vibrant institutions. They lead the world in all sorts of areas.

Likewise with court lawyers. A similar vibrant culture could be nurtured. Freed from the economic pressures that currently afflict the life of a lawyer, court lawyers could devote themselves to the same goal that professors pursue - truth.

CONCLUSION:

While the above proposal may seem far reaching to some, the true gauge is the condition of the present situation. Nobody doubts that the present system is inequitable, financially devastating and illogical. As the wag observed, "You get as much justice as you can afford". The average person simply cannot afford to file a lawsuit - or even defend against one. And where the system puts money and truth on a collision course, no society can benefit from that.

Of course, thousands of lawyers are going to protest, though support for the proposal may be broader than one first thinks. Either way, unless a society has the courage to tackle its problems head-on, the rust will continue to eat away at the fundamental structures of that society. With the legal system, we are at that point - and beyond. The clock has already struck midnight. When dawn arrives, will it dawn on us that we have a very, very serious problem? Bandaids do not solve serious problems.