Bleak House makes me think things you will find boring

Amy and I started watching the recent BBC adaptation of Bleak House. It's a great version, I presume, though I haven't yet read the book. However, I am fascinated and must read it soon. Thankfully, I have much travel coming up and have high hopes I shall have my desire. The crazy thing about watching British period pieces, is I am very susceptible to accents. As I type this, I am hearing the words in a British accent that, at times, slips into Cockney. I always end up thinking (if not speaking) in the accent that I am hearing.

Accents aside, this work (Bleak House) has inspired me.

Bleak house is an indictment of the English legal system, the mother of our legal system. Not at all subtly placed throughout the book are victims of the ponderous Court of Chancery. I am fortunate enough to have learned what the chancery was, but I don't recall what it wasn't. This makes it hard to describe. Suffice it to say that the Chancery Court was the court of equity in England. In the US, we have combined the two into one.

The thought I have had while watching this movie is of the advantages of the American Legal system. Certainly, there are many complaints about this system. As a "justice" system, it is seldom administers a complete justice if any justice comes at all. We call our juries "fact finders" (at least lawyers and judges do) and assume that they are in the business of finding the truth. In reality, all a jury can do is find probabilities. Yes, someone hit McDonald's for a bajillion bucks on a spilled coffee. Yes, Doctors feel victimized by malpractice suits. But, you must take our legal system in context.

As I said above, we got our system from the English. I was fortunate enough to take Medieval English Law from Professor Thomas Lund in Law School. It was a fascinating class that I took for my love of the Socratic method employed by "Tommy", not a particular love for English Law. What I got, was context.

Aside from being a lawyer of little consequence, I am the holder of a bachelor's degree in Communication. In obtaining this degree, I studied the most liberal of the arts - communication theory. This wasn't just the typical "know your audience" and "use three points to get your message across", but how we perceive and generate reality. I thought it was bunk at first, then I thought it was gospel, and now I see it for what it is.

Communication theory is quite true, but it has to be applied to itself. Reality is what we perceive and what we perceive is intelligible only in context. Here is an example:

I flip off my colleague Dave approximately 100 times a day. Flipping "the bird" has a traditional message that I won't transcribe here. It is insulting and offensive. However, one of my best friends is the recipient of more birds than a Hitchcock film. Why is Dave still my friend? Because flipping Dave off, in the context of our relationship, is not offensive. Why does Bleak House drag me into a discussion of communication theory and context? Because it gives our legal system context.

The Chancery Court in Bleak House is slow. It is not just slow, it is glacial. One character has melded the Judgment Day when Jesus Returns or a person dies and is sent to be judged by God with the day her chancery case is decided. The system is so slow that it can take generations to decide a case. In the meantime, the assets at issue in the case, are in a state of legal purgatory. On chancery victim is thrown out of court for accosting the judge and complaining that his farm is rotting while the Court determines its fate. It is like taking five days to decide who has the duty to put the milk away. In five days you can have the right answer, but the milk will be spoiled.

My interpretation of the English Chancery Court, which is clearly accurate after having watched approximately two hours of a television adaptation of a book about it, is that its highest value was justice . . . at any cost. That is, the Court would rather real lives fade into the twilight not knowing the fate of their legal interests and/or assets than make a decision that might not be correct. This also would demonstrate a legal system that believes its rulings are reality.

Does it now seem make more sense that the Americans would insert a clause into the Constitution that requires a "speedy trial" (and yes, I know we usually think of that as referring to criminal cases). I bet that the maxim "justice delayed is justice denied" is not a maxim of the medieval or even Dickensian Chancery Court. But it is a maxim here.

In response to the British pursuit of the Aristotelian legal form, the Americans chose speed and efficiency. The British said what's right is right, no matter how long it takes. The Americans said, let's take the band-aid right off, even if it bleeds a little.

My goal in this late night expulsion of thought, is to ask this country to invite some context into its discussion of the American Legal System. It isn't perfect. It isn't wholly just. But, it isn't the worst thing out there. When you look at what it was made to respond to, I think you have to admit, it probably resolved some of the larger problems [slow and ineffectual justice] it saw with the law of its mother land.

Our legal system, though subject at times [more seldom than the media would have you believe] to a runaway jury, has spawned a private sector solution to prickly liability problems that have, in general, satisfied claims by injured parties while destroying relatively few businesses and lives. I speak of, the insurance industry. I work with them and against them and can see their flaws as well as any. BUT, I think this is an instance in which the private [free market] sector saw a problem and answered it without the necessity of excessive legislation. That is, the problem was that as society expanded and grew interdependent, it became apparent that human errors could have grave consequences. The conflict was between the injured and the injuring (tort victim and tortfeasor). The victim needed to be made whole and the culprit couldn't afford to do so. Under the law, the victim can, economically, destroy the party that injured him, but it doesn't matter. Because it doesn't make anyone whole. If you sue a person who is broke to oblivion you have, in the end, nothing. But, you don't need to worry too much about that. Why? Because the private sector has devised a non-judicial and non-legislative solution - liability insurance. This way, a business or homeowner or doctor can acknowledge the risk to the public of their actions, yet not lose the ability to make a living for every mistake. Who pays for this? Everyone. It has become a truly voluntary tax.

Let's compare this with the health care issue. There is a problem - severe consequences for those who cannot or do not afford health care or health care insurance. The problem? As medical care, in many instances, cannot be denied a needy person, the entire country is paying for it via involuntary taxation. What are the solutions? Invasive and crippling government involvement tied to extensive taxation and likely rationing of care, rely on the kindness of the populace or ignore the problem.

While no one really loves liability insurance companies, at least with their system it is all voluntary (excluding auto insurance, but that is really a different issue) . The insurance companies assess your risk, and charge an amount to assume the risk for you. The market forces them to be competitive and so the amounts are usually reasonable. If you screw up, the insurance company defends you and pays for the damage you cause. If you are determined to be a greater risk for additional injuries, your premiums are hiked accordingly. Thus, those abusing or accessing the benefits paid for from the group, are forced to "pay their share" or will either leave the system and probably lose their business. If you don't want to pay the tax (insurance premiums), you don't have to, but you are at risk of losing your stuff if you screw up.

What's my point? Lawyers, for all their problems, have put together a system that creates a voluntary safety net, that requires little government regulation, creates money (i.e. is profitable) and protects the public. People who play this game can take risks, have a business and have a buffer between them and the harsh reality of most people injured by their unintentional conduct. Is it perfect? No. But when taken in its proper context, it's a pretty good solution. Until God himself comes down to handle these matters, I think I'll take this one.

Well, I need to get to bed. In the meantime, maybe you should read Bleak House and see if you get a similar perspective/context. Get it from Amazon.com here in cd form (or poke around and get a stodgy old book - or compromise and get the kindle version)

G'night.