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FOURTH REICH RISING
A CITIZEN’S VIEW OF AMERICA’S LITIGATION LAWYERS
RANDALL ENOS
BY THOMAS N. BURGESS
The more disquieting histories of World War 2 often
times precede and portend that event by way of the ordinary.
Set in the 1930s in Germany, they are authored by noncombat
ants and penned with the objectivity needed to quaff a beer,
meet a lover, or have a suit or a cuckoo clock mended. The
writers doubtless illumine an ill-fated people But they are
unsure of what the luminance reveals, since public sentiment
seems so complacent and so ordered. And though daily life
concerns them, it haunts us. The political scene is ominous but
the routinism of these chroniclers makes it more so. Among the
Americans present in that time and place, Ambassador William
Dodd in his Diary and William Shirer in his Berlin Diary are fine
cases in point.
Mainly, they premonish the readers. The Germans are
there under the storm clouds, swept day by day further under the
jackboot. But aided by time, we are better tutored to ponder the
events, view the bulletins, and anticipate the repressions. And
when witnessing history thus — and musing on the public
acceptance — it is then, I'm convinced, that the phrase “those
poor dumb bastards' is put to its most apparent use.
This is not, however, its only fitting use. My American
fellows and I could well be the poor dumb bastards of our new
century. We are living under similar storm clouds and pursuing
our lives beneath the shadow of a very pervasive and insidious
jackboot mentality. Like the citizens of Hitler's pre-war republic,
we are also similarly occupied — and accepting of its presence.
Few of us are enraged to challenge it and with our failing to do
so, the worst kind of history may repeat itself, as both our sensi
bilities and our economy simultaneously fail us.
The prospect seems transportable through time —
despite warnings that emanate from those 1930s warnings;
namely that Olympian parades and ethnic flummery aside, it
was authoritarianism and fear (and a perverse conceptualizing
of economic goals) that worked to keep a tight lid on the
German consciousness. And much like Germans confronted
with the Schutztaffel, our nation, as comprised of its citizenry,
is spending an excess of time in abject fear of certain lawyers.
Like the Brown Shirts, the Black Shirts, and other factions of the
Reich, litigation lawyers are today using both greed and fear to
expand their dominance of our economy — and their doctrinaire
grip on our judgments. They accomplish this while concurrently
promoting themselves as the ultimate stewards of democracy
— indispensable to every family in this land lest that family
is attacked by others of their trade. It is the perpetuity ploy of
martinets. And given the controlling tie between the lawyer trade
and societal precepts, it is totalitarianism in the making.
So with the vesting we’ve made in our nationalism,
we should be troubled. Not until now was it intrinsic to our
national selves to be fearful of, and subdued by, some coercive
uptown professional’s club. The American experience was to
be contrasted with the repressions everywhere — and our law
and its practitioners were to be a comfort. But they increasingly
are not since part of our American tenure was to make some
(honest) equity, keep and enjoy a bit of it, and still have
presumably natural interchange with our countrymen — this
without the dread of licensed knights-errant who see liability
revenues in every human endeavor and are allowed to daily
harness the courts as it suits their litigation machine.
Lending substance to this fear, a lawyer in North Carol
ina flatly stated to me that he maintained an “equity redistribut
ion retirement business.” He then elaborated by telling how,
by way of random lawsuits, he simply took money from retired
people with savings and awarded it to other folks who had either
less equity than the defendants — or anticipated having less for
their retirement. His view of himself bore a corrupt righteousness
but, in today’s United States, he was no less empowered for it.
In fact, his endowment made him quite fearsome — and I might
add, ever more creative and unrestrained. Predictably, the fulcra
for his many claims originate in the things that older people
fumble in life — resulting in a claimant’s superficially dinted car
or a claimant's chipped tooth or a time lag that cost the claimant
a moment’s dignity, a little identity, or some ephemeral option
for true happiness the claimant was working on.The prospects
are endless and, by hook or crook, the lawyer extorts his bucks
and keeps his caseload in motion. I actually had some rejoinders
for him — comments referencing Kafka and Hitler and a few
other charmers. He laughed. Fingered his diamond cufflinks.
However, like the citizens of the Reich and their view
of fascists, I can’t say too much now, can I? I could get sued,
you know! Worse yet, I might someday need a lawyer as the
result of getting sued — and then where would I be? In further
articulating this fear, Americans are no longer in the habit of
saying, “/ am afraid of the law.' Rather, they say, “/ am afraid of
lawyers." The former statement implies: “I am mindful of the
rules here — as I understand them — and I doubt it that it’s wise
to go against them." Expanded, the latter statement translates:
“I am fearful of what lawyers will make of a malleable system of
rules and how they will forcibly reconstruct those rules in order
to take my savings away from me."
Today, Americans envision civil law as embodied by
lawyers — most often, litigation lawyers — and this notion
sustains a very legitimate fear in this country. In the foregoing
sentiments, lawyers are no longer viewed as simply affiliated or
synonymous with the law. Rather, it is now assumed they have
replaced the law Free-contingency has legitimized the fusion
CREATE A DECLARATION OF EQUALITY fa
of greed and belligerence — both traits released into a realm of
infinite possibilities. As a consequence, these lawyers are now
the proprietors of huge fault-allocation factories — and our
equity and honest judgments are shipped to them as unrefined
goods to reprocess and mark-up. Additionally, as litigation
lawyers become an ever more disproportional — and dispropor-
tionally wealthy — segment of our society, they become the
errant and corrupt faction they have long faulted other groups
for being. They simply take what they want and, although we
have long understood that the law was ever with us to practice,
we also assumed that it was no one’s to just take. That happens
only when totalitarian states are formed.
Without question, their burgeoning population is fuel
for their arrogance. And if you want to see where, early on, it
all gets nurtured, go to most any large university and look for the
biggest building there. Lawyers make visible alumni. (Try getting
them to endow a school of education, nursing or social services.)
One stroll through a law school and you feel like you are
wandering the halls of Himmler's Wewelsburg Castle, watching
the young SS hatchlings as they stroll from class to class,
feeling their empowerment over those who teach children,
tend the sick, or maybe make shoes or build homes. As to
their enrollments, the schools are now charged to crank out
apprentice predators in the way Hitler charged his populace
to produce Reich-babies.
One day last spring at a west coast university, a profes
sor of education had formally reserved a common area in the
law school. Due to numerous campus events, her regular class
room had been appropriated and she needed only an hour or
so to complete her curriculum for that day. Her students were
displaced but managing. They were among those priceless
young Americans who were earning their credentials to enter the
demeaning hell of our public schools; to try to teach America’s
children and to try exposing them to a positivism and a humane
ness that society is not quite providing at present.
At one point in her lesson a law student came upon the
scene, taken aback by the idea of this space being occupied.
Displeased, he approached the professor, interrupting her
lecture and saying, "Why are you here? How long are you going
to be here?" Straightaway the teacher tried to counter this
stridence with calm — and replied that she had arranged for the
area due to campus circumstances. When the young lion got
less reasonable still, the teacher explained what they were doing
and mentioned that he some day might have children in public
school. To this he stared blankly for a moment and then said,
“My children will never go to public school!" He then turned
smartly and marched off at a clip.
Some months before this incident, another education
professor stated that with our present litigious environment,
up to 30% of her department's time-intensive curriculum is now
displaced — not by techniques in the nurturing of young minds
— but by issues regarding liability. So let's establish who is
raping the education of this country — as they have plundered
all our other institutions. With their extortion of public schools,
lawyers can afford the private schools to which that obstinate
young lion alluded — additional to all the other things they can
afford.
To a degree, the attitude could be written off. Aside from
their youth and their contentious view of the world, law students,
after all, are compelled to be business folk — of a sort. They are
groomed to be sleek and swift entrepreneurs and, in theory, this
should not be at variance with the American enterprise ethic.The
greater problem comes when their arrogance is compounded —
not only by their grip on the lawmaking process but by their
explosive numbers relative to all (productive and constructive)
entrepreneurs. It portends the things lawyers will do to American
enterprise and ultimately to all other facets of American life.
In order to illustrate what they will do (and are doing)
I will use the phrase “pushing the envelope." It’s one of those
zippy little idioms credited to both NASA and yuppie vernacular,
but it doubtless speaks to our energies and our innovation. It is
supremely entrepreneurial. So transporting it to the American
marketplace, I could theorize for instance that when an agron
omist "pushes the envelope" we hopefully get better food and
assuredly more food. Likewise, when a biochemist pushes the
envelope we get more beneficial medicines along with still more
of the trivial ones — in truth, both being good for the market.
Architects, builders and stripteasers can all, by pushing the
envelope, give us more of their talents which produce more of
their product — and also more unexpected variants, which then
hopefully find still more beneficial applications.
But what occurs when a lawyer pushes the envelope?
Well, we can get more laws numerically of course. But of these
can come ever more variants that, though immediately benefic
ial for some claimant, are societally corrupting. They either
entrap us because we can't stay abreast of law innovations or
victimize us because lawyers arrived at a whole new legal
concept as we stood in the dock, being sued. And like other
entrepreneurs, lawyers get colleague applause for the inventive
ness. What defendant/society gets is akin to what the Pentagon
sells: a lot of innovative “equalizing" that we presumably need
for one hell of a lot of money — except, upon closer examina
tion, the military comes up as being easier to turn one's back on.
Our generals don’t attempt a run on each of our wallets — at
least not on a basis that could break us individually. And despite
their specialized and cryptic dealings, their "creativity" is still
monitored and overruled by citizens other than themselves.
IF YOU WORK
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