When attorneys Terrence Low, Anthony Canata, Andy Kralios and Susan Sachs teamed up this fall to take the case to the First Circuit, the odds of winning – and getting paid – were slim.  But they believed in the case and relished the idea of taking on Prudential and its team of lawyers from all over the country.  So they began meeting every week in the wood-paneled conference room at Attorney Low’s office, researching, writing and editing a brief that would make their case to the lofty Justices of the First Circuit in Boston.

Attorney Low explained, “I put together a team of lawyers that I thought were smart, dedicated and willing to take on a case because it was the right thing to do even if we didn’t have much chance of success.  Judge Ponser is very well respected, and with good reason.  Getting the Circuit Court to overturn his decision was a long shot.”

The team met every week to discuss their progress over sandwiches from the Cornerstone Café, editing the brief, discussing the best ways to make their argument and grappling with the details that go into a complex legal brief for submission to one of the highest courts in the land.  “It was practicing law the way you hope to practice it when you decide to go to law school,” Attorney Canata said.  “You have a case you believe in where the odds are against you and the issues are complex, but you get to work with some dedicated people and try to make a difference.”

Their teamwork paid off last week, when the First Circuit overturned Judge Ponser’s decision and ordered Prudential to pay out the $300,000 life insurance policy at issue, plus fees and costs.  In announcing the decision, the Circuit Court cited Prudential’s violations of ERISA regulations, chastised it for ‘conjuring’ up new defenses in litigation, and found for Attorney Low’s client in part based on the ‘unexplained inconsistency’ in the company’s disability determinations – all arguments put forth by the team of lawyers from Springfield.  “It was a great decision from our perspective,” said Attorney Kralios.  “We felt vindicated when the Court said that we were right about the law, and went on to make the findings of fact that we thought were there from the beginning.  These kinds of cases are extremely difficult to overturn on appeal.”

Their win may also make it easier for other, similarly situated plaintiffs to prevail.  In reaching its decision, the court rejected Prudential’s argument that the insurance policy at issue had a different definition of the term ‘disabled’ than the policies in which it awarded benefits.  Attorney Sachs, a lawyer who takes on these kinds of cases frequently, believes that the decision may put insurance giants on notice that they cannot blithely dismiss their own, or another agency’s, findings of disability when making disability determinations.  Attorney Sachs summed it up best: “We were right, and we prevailed in a way that left nothing to interpretation.  And that is a really gratifying feeling for a lawyer, one of the best a lawyer can have in the practice of law.”

If you have read The Shock Doctrine, you have followed the tragic arc of Friedman’s “Chicago School” economic policies.  The myth is that selling off the common assets of a nation to private enterprises and deregulating finance and business leads to efficient economies and material progress.  The reality is that the rich and powerful use Chicago School economics to justify the transfer of public wealth into their pockets and to justify their conducting business without regard for the public good.  The system begins from a corrupt concept, namely that the expansion of private property and the deregulation of finance and business are morally neutral decisions.  It leads, inevitable, to a culture of corruption, because it is in the nature of unregulated businesses to exploit for profit when nobody is watching.

It is obvious to anyone who has been paying attention that Chicago School economic theories make for disastrous moral outcomes.  What is also true, however, is that such morally abhorrent policies can only come into being in a country where the rich and powerful unduly influence political and economic policies.  In terms that any free market proponent would understand, no country of millions would support a system that enriches the few and impoverishes the many if everyone had equal influence over economic policies and if everyone was acting in a rational, self-interested manner.  To successfully implement an economic system with such unfair outcomes within a ‘democracy,’ then, there must be undue influence over the elected leaders by the few who stand to be the winners.  In other words, the system must be corrupt.

It is no surprise, then, that 30 years into its experiment with free market economics and deregulation, Americans have lost faith in their political and financial leaders.  The growing political unrest is not so much because our economic policies have derailed the economy.  It is rather that the rich and powerful have derailed our democracy, a fact that has come to light during the financial crisis.

Democracy implies, at the very least, that each and every citizen has a full and equal share in making the decisions that affect our lives.  In a healthy democracy, the economic policies must logically benefit a majority of the people.  An economic policy that results in a wildly skewed distribution of wealth in favor of the very rich indicates either an ignorant electorate or a corrupt system, or both.  The answer to our current crisis in American politics is not higher taxes, growing the economy, increased government spending or corporate tax cuts to provide or spur economic growth.  The only real answer is to fix our corrupt democracy.  The only way to ensure a moral economic policy is to guarantee each and every citizen a full and equal share in deciding our political and economic policies.

OWS has offered no systematic, reasoned way to close the growing income gap because none exists within our current system.  What we [I am in accord with the sentiment behind OWS] are talking about is making sure that the rules we have in place guarantee that everyone has a certain baseline standard of living and an opportunity to succeed.  In other words, we want to guarantee certain outcomes of the economic game that we all play.  And once you decide to do that, there is no logic, no mathematical equation for determining how much should be taken from the rich and given to the poor.  There is no way to determine just what the right mix of taxation and social programs strikes the proper balance, because the only measures are the results that we see in the relative distribution of wealth and the way that we all feel about it.  In other words, we are working in a world of outcomes and feelings, not structural frameworks, rules and systems.

Moreover, it is just this kind of redistribution that makes conservatives reach for their blood pressure pills.  Whether you call it a graduated income tax, modified capitalism or plain old socialism, for the average red-blooded American, redistributing wealth is seen as an unacceptable penalizing of success in a country built on rewarding individuals for their hard work.  And they have a philosophical point.  Yes, our tax code is a graduated one.  Yes, we redistribute money by way of social programs to help those at the bottom.  Yes, OWS is to a large extent a reaction to our system’s institutionalized inequality, the changes in the last 30 years that guarantee outcomes that benefit the wealthy.  But within the framework of our modern economic system of private property, ‘free’ markets and representative government, redistributive tactics to promote more acceptable outcomes are modifications grafted on as an afterthought to a system not designed to guarantee outcomes.  And any serious historian will tell you that institutionalized inequality is built into the game as far back as the dawn of civilization, so tinkering with the modern rules would be a rather shortsighted resolution.

So where do we look for a framework that promotes the full development of individual achievement and fair outcomes?  How can we envision a world in which the OWS movement does not look like sour grapes or socialism, and where the success of Wall Street executives is woven into the public good rather than indicative of our torn social fabric?  As it turns out, recent developments in the study of “noncognitive skills,” things like emotional intelligence, social intelligence, and other aspects of our unconscious selves, may provide one.

For one thing, we now know that we are not the rational, individualized, self-interested beings that economists suppose us to be when creating their models for efficient markets.  In fact, the research suggests that we cannot develop an individuated self without the benefit of lifelong interactions with other human beings.  Humans learned to survive by working together with a common purpose, and it is out of this context that what we call our ‘individuality’ emerged.  As a result, we experience our full humanity by striving with one another, in such a way that individual achievement and status are irreducibly linked to our participation in the group.

For another thing, human beings are hard-wired for fairness.  Everyone from infants to Supreme Court Justices has a built-in sense of what is fair, and an instinctual way of reacting to perceived unfairness.  Whether we philosophize about it or create intricate ways to measure it, the reaction itself is not subject to conscious thought.  We see unfairness and we feel outrage.  When the unfairness is resolved to our satisfaction (again according to some inner feeling not subject to conscious control), the outrage goes away.  If you are looking for real world examples of this, consider how it is that judges, juries, lawyers and defendants agree on what a fair sentence is for a crime.  Or ask yourself how we decide what is fair compensation for a bodily injury due to another’s negligence.  For all of the law’s supposed rationality, we just do not have any way rationally to measure fairness, though we make judgments about it all the time.

Which brings us back to the search for an intellectual framework for the visceral frustrations so many millions are feeling today.  If individuality and common purpose are two sides of the same human coin, then we begin to see the inherent flaw in modern economics, capitalism and the corporate structure.  An economy based on radical individuality and self-interest can satisfy, at most, only part of our human nature.  It will consistently reward our individual success, but will never fully satisfy our need to work together for a common purpose.  We strive, or compete, to actualize our individuality and to survive as individual beings.  But we share, or cooperate, to actualize our greatest possible potential by mutually supporting those without whom we could not be individuals in any real sense, and we do so that we may survive as a community.

The import of all of this is that mechanically redistributing wealth from the rich to the poor does not change the basic problem.  Corporations are designed to seek short-term profits for shareholders.  Private enterprise rewards ‘rational self-interest in the market place,’ otherwise know as ‘greed,’ for those who do not recognize a euphemism when they see one.  Labor unions fight for jobs, wages and benefits, but they only look like they are helping the little guy because in almost all cases they are representing the little guy.  But when labor has the upper hand it will take whatever it can get, just as ownership does (just ask the MLB players union), because that is the nature of the system.  True, governments in the 20^th and 21^st centuries have created social programs to protect at least the weakest among us, but such safety nets are always under attack, and tend to represent the least amount of cooperative help necessary to prevent violent protest against the system as a whole.

Our system of capitalism is broken because those at the top have become disconnected from those at the bottom.  Our system of government is broken because our leaders have become disconnected from the people who elected them.  And those disconnections do not accord with the way that humans were designed to live.  The myth of our modern system, that it allows the maximum fulfillment of individual potential by making people free to succeed on their own talents, is not optimal for human beings, because we were designed to find fulfillment by working together for a common purpose.  The pervasive feeling of unfairness we are seeing is a reaction to a world in which neither those at the bottom nor at the top can feel fully fulfilled, because there is no common purpose in our daily economic lives.  Until a win on Wall Street is also a win on Main Street, and until our political victories advance the cause of the people and not just the pols, we will have done nothing to address the visceral frustration that our present system engenders.  Until work feels like a mission calling upon all of our individual talents in pursuit of a common good, we will struggle to find meaning and bicker about who has what and how much is too much.

The ultimate expression of the American experiment in self-government is the Four Freedoms Speech delivered By Franklin Delano Roosevelt in 1941.  In it, he lays out the foundations for democracy:

“[T]here is nothing mysterious about the foundations of a healthy and strong democracy. The basic things expected by our people of their political and economic systems are simple. They are:  Equality of opportunity for youth and for others. 
Jobs for those who can work. 
Security for those who need it. 
The ending of special privilege for the few. 
The preservation of civil liberties for all.  The enjoyment of the fruits of scientific progress in a wider and constantly rising standard of living.”

These are the benchmarks against which we measure the health and strength of our American democracy.  They are the principles that guide our self-government; the framework for evaluating our political leaders; the moral parameters for judging the work of our financial leaders and private enterprises.

We see today the failure of American democracy to meet these benchmarks.  The elite have unprecedented advantage and privilege, while too many live either in poverty or insecurity.  We have too little opportunity, employment and security for a nation as great as ours.  The status quo is unacceptable and unsustainable.

We have looked to our political leaders to restore the foundations of our democracy.  They have not done so.  Instead, they have protected the very individuals and institutions that have put it in jeopardy.  They have attacked the traditional programs through which we have maintained the health and strength of our democracy: pensions, unemployment insurance, Medicare, Medicaid, Social Security and other programs.

They have failed us in critical ways for too long.  They have failed to address the rising costs of higher education.  They have failed to prepare entire segments of our population for college or the modern workforce.  They have failed to force our polluters to implement sustainable practices that will preserve our environmental security.  They have refused to limit our military strength in favor of collective international security.  They have refused to require the privileged to make sacrifices, in the form of increased taxes, to secure and stabilize the foundations of our democracy.

We protest against our financial leaders.  We protest their breach of our trust, which led to the present economic crisis.  We protest their continuing pattern of greed. We protest the erosion of our democracy that is a direct consequence of that greed.  We protest the unwillingness of our political leaders to protect us from that greed and its consequences.

We demand that our financial leaders act responsibly.  We demand that our political leaders create and maintain safeguards to restore and ensure the foundations of a healthy and strong democracy.  We demand that equality of opportunity, dignified employment for those who can work, security for those who need it, an end to special privilege for the few, the preservation of civil liberties, and an ever-widening increase in the standard of living once again become the starting point and benchmark of all discussions of social and economic policy.  These are our demands, and they are nonnegotiable.

First we had the Tea Party Movement.  Tea Partiers “endorse reduced government spending, opposition to taxation in varying degrees, reduction of the national debt and federal budget deficit, and adherence to an originalist interpretation of the United States Constitution.”  (This, from Wikipedia).  Tea Partiers tend to see government programs and entitlements as wasteful attempts to give to others what they themselves worked so hard to achieve.  They are tired of the government taking their hard-earned dollars and giving them to those who ought to be able to make it in America, as they did, through hard work.  They tend to believe that those who have become successful in America ought to be able to keep what they’ve earned, rather than being forced to give it to the government, which will in turn give it to people who didn’t work for it and don’t deserve it.  Whether on Wall Street or Main Street, they expect people to earn their keep.

Now we have the Occupy Wall Street movement.  Generally speaking, the Occupiers want an end to corporate greed and a system resulting in a more fair distribution of wealth.  We (I tend to agree with their views) tend to see a system that is rigged in favor of the rich and powerful, a system that gives a few people a huge head start and leaves the vast majority virtually no chance get ahead or even to make decent lives for themselves.  We want regulations to make the game fair, and the winnings more evenly distributed, while ensuring that even those destined to lose life’s race can still live with some dignity.

Enter Dr. Peter Whybrow, by way of Michael Lewis’ new book, Boomerang.  Dr. Whybrow, Lewis explains, sees America as a place where everyone, rich, poor, and in between, has lost the ability to self regulate.  Humans, he explains, developed over the course of 3 million years to live in a world of scarcity, and are therefore programmed to “acquire as much as we can of things we perceive as scarce, particularly sex, safety and food.”  Americans, however, live in a society that has “grown rich by devising better and better ways to give people what they want.”  In the face of this culture of temptation our primitive brains cannot self-regulate with a view either to the future or the common good.  As a result, the stockbroker pays himself millions, even while running the economy off the cliff.  The rest of us make our purchases on credit and insist on entitlements.  And the bill is coming due.

The Tea Partiers and the Occupiers are both looking for political solutions to this cultural lack of self-regulation.  In that sense, they are a response not so much to the financial crisis itself, but to our leaders’ culpability for the crisis.  They are protesting against leaders who have been unable or unwilling to impose restraint on Wall Street greed and/or government bloat, leaders who are either complacent or complicit in our overly indulgent lifestyles.  Though one side blames Wall Street (greed at the top) and the other blames government giveaways (greed in the middle and at the bottom), together they complete the picture of a culture bent on wealth at any cost.

But the Founding Fathers created a representative form of government where the leaders are largely insulated from the people who elect them, precisely because they did not trust the people to make prudent, well-considered decisions.  Our Constitutional safeguards are expressly designed so that our leaders can make just the kinds of difficult decisions in our long-term interest and for the common good that they now seem unable to make.  Instead of calling us to our collective moral duty, however, our leaders have taken up the cause of one group against another.  They refuse to tell us the truth: that our culture of temptation and indulgence is a national crisis in need of a collective solution.

In the end, there can be no one-sided victory.  Politically, when one segment of a culture imposes restraints on another, that is not self-regulation, it is domination.  When one group continues to indulge while imposing limitations on another group, that is oligarchy, not equality.  Practically, when some in a free society are able to indulge in everything they want, and the rest of us are able to see and hear their every indulgence on television, on the Internet, in movies and in all the ways available to us 24-hours a day, the rest of us will get it, too, howsoever we can.  Psychologically, blaming the rich, the poor, the unions, immigrants, or others is a projection of our unregulated, unsustainable consumption onto some other group.

This present crisis may prove to be the end of the idea that an ever-growing economy is the solution to all economic problems.  It may also be the end of the idea that we can rationally use the greed of the few to sustain the needs of the many.  It will not, however, be our last reckoning so long as America continues to be the land of instant gratification.

There is a lesson for those whose profession is adversarial in nature, and it is this: it is a mistake to take the fight as your focus.  Said differently, lawyering is a constant invitation, for lawyers and their clients, to let their cases consume them.  When this happens, we inevitably use the court system to seek vengeance or vindication.  What we usually find is that we have given the case more of our time, money, and energy that it merits, at the risk of losing the balance that is so necessary to a healthy life.

I am not immune to this phenomenon.  Yesterday in court I found myself arguing with another lawyer about the merits of a motion that I had filed.  Somehow, while trying to express my view of the motion and address the points he was making, I found myself wanting to win the argument.  I found myself making a judgment about him – that he was being obstinate – rather than accepting that he simply had a different view of the same facts and law.  As is usually the case, I was no more successful for my expression of frustration at the other attorney.

The temptation for my clients to engage in these kinds of exchanges, of course, is much greater.  These cases are about them – whether they committed a crime, or are entitled to a settlement, or qualify for a disability program – and are therefore deeply personal.  Though I have to respect and understand their position, the fact of the matter is that in almost all situations their cases should not be the focus of their lives.  Yes, there are cases when one is on trial for his life.  Yes, there are ‘bet the company’ lawsuits that will determine the fate of a business.  Yes, there are colossal issues facing all of us, every day, that demand our attention.  And yes, we have enormous reserves of courage to face such challenges, when they arise.  But it is a mistake to tap these reserves in our daily lives, seeking vengeance and vindication in coffee shops and courtrooms, consuming ourselves with fights that are tangential to what is important to us.

In criminal cases, defendants focus on police officers or district attorneys they think are ‘out to get them,’ alleged victims who ‘are ruining their lives,’ or a system that is ‘unfairly singling them out.’  All of this may be true, but it does not change the fact that the case is only about whether there is proof beyond a reasonable doubt that they committed a certain crime.  A criminal defendant cannot prove he is innocent, because he is presumed to be innocent.  He cannot ‘get back’ at the police, or their accuser, because the case is not about anyone’s actions except their own.  Likewise prosecutors, victims, defense lawyers and other players in the system who see a courtroom as a forum for personal vengeance or vindication, whose interaction with the courts is a series of fights with their counterparts, are doomed to lives of frustration.

As applied to civil cases, attorney Low summed up this issue rather succinctly recently when he wrote, “It is not the proper function of the civil justice system to seek punishment for another person’s actions, however outrageous. The civil system provides fair compensation for losses.”  Whether criminal or civil, the message is the same: do not expect more from the legal system than it offers, and do not make more of your case than it merits, because the transaction costs of vengeance and vindication are almost always prohibitive.

To drive this point home, I often talk to my clients about the larger context of their lives.  Do you have a drinking problem?  A drug problem?  Well, you have to make sobriety the main focus of your life, because you cannot live a balanced life as long as your next drink or your next high is more important to you than your family, your work or your plans.  Are you a parent?  A boss?  A teacher?  A homeowner?  A caretaker?  Well, a responsible person takes care of the people and things in his life, and that is not possible if you spend your life fighting with people.  Are you stricken with health problems?  Or a set of circumstances that are overwhelming?  Then you need to take care of yourself, and set your life on the most healthful course that you can, and few things are as detrimental to health and well being than a life of conflict.  Are you spiritually tortured?  Or drawn to a higher power?  Then your life must have time and space for your search, time and space that you will not find if you fill it up with anger and conflict.

Simply put, a person with a proper perspective in life has much and more that must come before the fights that we are invited to join in our daily lives.  By keeping our focus on those fundamentally important things, we more easily recognize what we can – and cannot – hope to gain from the conflicts all around us, both in and out of the courtroom.

In the United States, the modern formulation of the government’s role in a more fair and balanced economy came into being in the early part of the 20^th century.  On the revenue side, the issue came to a head with the passage of the Wilson-Gorman Tariff Act of 1894 (which included a 2% income tax on income over $4,000) and was resolved with the passage of the 16^th amendment in 1913, which effectively ushered in the era of graduated taxation of all income.   On the distribution side, it took the Great Depression, and the New Deal programs designed to combat it, to bring about programs to protect the poor, the old, the sick and the otherwise vulnerable.  The basic formula as it has evolved is this:  taxes are progressive as necessary, requiring larger payments from the wealthiest, which revenue is in turn distributed to the least among us through the provision of basic food, shelter, clothing, education, health care and other services, with decreasing amounts of assistance for the less unfortunate.

To have a direct discussion about debt and deficits, then, it would seem obvious that we must have it in terms of the present distribution of wealth, so that we can intelligently decide whether, to get our fiscal house in order, what is needed is a larger contribution from the top, or a decrease in goods and services to the bottom.  On this score, a quick glance at the statistics, or simply putting your ear to the ground of the national discourse, will confirm the obvious: the rich in America are getting richer and richer while the poor are becoming poorer by the day.  Framed this way, there really is no debate about how to handle debt, deficits and the debt ceiling today.  To fulfill the proper function of a modern government in a difficult economic time, especially one in which the difficulty is felt only on the bottom while those on the top prosper, the government must use its powers to redistribute wealth and restore fairness to the system.  In a word, it should raise taxes on the wealthy, while protecting the programs already in place to help those in need.

To the extent that the Tea Party, the Chicago School economists or any other group advocates a system that does not redistribute wealth, i.e. to the extent that they suggest a change in this basic formula, they are radicals or extremists.  If their response to a perceived debt crisis is to advocate for a policy that does away with a progressive tax code and removes the safety net of programs now in place, then they are using a crisis as a pretext to further their radical agenda.  The American people must be made to understand that such formulas would lead to a radical departure from present policy, that such ideas challenge our basic understanding of what our government does and should do.

But even if what the political right seeks is aggressive rather than radical policy change, calling for lower taxes and smaller government, a less aggressive redistributive policy, the debate is still one-sided against them.  As it turns out, a healthy redistribution of wealth, rather than the more anemic one advocated by the non-radical right, fosters overall economic growth and individual opportunity.  It is no accident that the strong middle class that resulted from our present redistributive model of government has driven unprecedented economic growth.  The more people who prosper in an economy, the more people there are to drive the economy with increased purchasing power.  As for individual freedom, it is a fact seldom mentioned in the American discourse that there is more upward mobility in many European countries, where greater government redistribution of wealth creates educational and other opportunities for larger groups of people, than here in the U.S.  In short, the argument for lower taxes and smaller government has to be made on either radical or ideological grounds, because on practical grounds the argument has no footing to speak of.

There is a proper place for the arguments from the right within the context of the proper redistributive role of government.  At some point, over-redistribution stifles the incentive to produce at the top and dampens the desire to succeed at the bottom.  Let everyone live in a system that ensures every individual a six-figure income, regardless of employment or production on their part, and soon there would be nobody left out there working and producing the wealth needed to sustain that kind of redistribution.  The argument from the right in the current debate would go something like this:  “Our present economic crisis is the result of a massive redistribution of wealth downward.  Despite the fact that 9.2% of people are out of work, 8.3 million children are without health insurance, 43.6 million people are living under the poverty line, millions of young persons are drowning in school loan debt and millions of families own houses that are underwater, and despite the fact that the wealthy on Wall Street created this economic mess in the first place, nevertheless the problem in this country is that those on the bottom have been given too much for too long, and it is time to cut them off.”  Now that is an argument I’d pay to hear drumming on Fox news night in and night out.

It is simply a fact that our government does, and should, redistribute wealth.  Why this is a political third rail is beyond me.  Why Joe the Plumber became famous just because President Obama told him that spreading the wealth is a good thing I cannot fathom.  Only the radical right suggests divesting the government of its role in bringing about economic fairness.  Only a political leader in the pocket of millionaires, billionaires and multinational corporations could suggest that we need policies that would foster more, rather than less, income disparity in our country today.  And only a public knowingly or unknowingly favoring ideology rather than practicality, that does not understand the present redistributive function of the government and the way we benefit from it, would go along with a further redistribution of wealth upward during the present economic crisis.

First, the basics.  There are two basic branches of law in our system, criminal and civil.  Criminal law is that branch dealing with the wrongful actions of individuals and organizations.  In criminal law, the action at court is brought either by a state government or by the U.S. government.  The government that brings the action must prove the defendant guilty beyond a reasonable doubt.  Upon a conviction, the government has the right to seek justice in the form of a jail or prison sentence or, if permissible, the death penalty.

Civil law, by contrast, involves the relationships between private individuals and organizations, specifically the rights and obligations owed one to another at law and those rights and obligations agreed to between private parties.  The bulk of civil law has to do with creating these rights and obligations.  We call the creation of these rights and obligations ‘transactions.’  An agreement, or transaction, can be a simple contract, the sale of a house, a merger of two corporations, even a marriage – anything reflecting the intention of two or more parties to bind themselves to certain obligations towards each other recognized by law.  Civil litigation is a subset of civil law.  It is that area of civil law that has to do with resolving, by an action at court, the inevitable disputes between private parties over whether one or the other side has failed to live up to an agreement, or to some general duty of law.  In such private actions between parties, the moving party must show that it is more likely than not that they have been wronged.  Upon such a showing, the court has the power to make the injured party whole again by awarding monetary damages or other relief to the party that brought the action.

One final, gigantic area of law is what is referred to as administrative law.  In our modern system of government, the vast majority of rules about what we can and cannot do, about what rights, benefits and obligations we have, are administered by governmental agencies.  Social security benefits, the creation and sale of securities, such as stocks and bonds, environmental laws, and many, many other areas of modern life come under the jurisdiction of one or another administrative agency.  Broadly speaking, rights, benefits and obligations that are due to us by the government, on the one hand, and obligations we have that are not the result of private agreements, and for which the penalties are civil, and not criminal, fall into the category of administrative law.

Straight out of law school I became a corporate lawyer.  That is to say, I joined a firm of lawyers (about 300 or so in a downtown Boston firm) dedicated to representing corporations, as opposed to representing individual persons, in all kinds of legal matters.  In a corporate firm, a transactional lawyer is one whose main task is to assist corporations in their various legal transactions: creating and offering stock for sale on the market, complying with the reporting requirements of the Securities Exchange Commission, preparing initial public offerings of stock, putting together deals whereby one corporation merges with, or takes over, another corporation, and other similar kinds of transactions.  Corporate litigators, by contrast, are the guys the transactional lawyers call when one of their transactions has a problem, resulting in the need to file a lawsuit or defend against one brought by the other party in the deal.  Litigators are also the people who defend corporations and their top executives when the company is accused of insider trading, patent infringement, white collar crime, noncompliance with SEC rules, violations of environmental regulations, and on and on.  There are other specialties in corporate law – labor law, tax law, patent law, and others – but transactional lawyers and litigators are the two largest groups.

Upon joining the firm I had the option of entering either the transactional practice group or the litigation group.  For those entering corporate law, what area of practice you pursue is something like deciding on a major in college, or perhaps deciding on a specialty in medicine.  One hems and haws, thinks and rethinks, but ultimately, in hindsight, the decision one makes is almost always the one that should have been obvious from the start.  For me, litigation was the natural choice.  My impression of transactional work is that it is the bastion of lawyers interested in business and finance, and is peopled by those who either came from professional families or those with a mind for business but an interest in law.  Litigation, by contrast, tends to be the bastion of lawyers interested in politics, and is peopled by those who either came from working class families or those with an interest in government or an ambition for public office.  As someone who falls squarely into the latter category, becoming a litigator, in retrospect, was a no-brainer for me.

The technical, strictly legal answer to this question is no, I have never represented anyone I know is guilty.  The reason is simple: my clients are presumed to be innocent, and they are not guilty unless or until they are found guilty by the trier of fact.  Since I can never know that a judge or jury will find my client guilty, there is no way for me to know, before a verdict is rendered, whether they will be found guilty or not.  To be strictly technical, then, I actually know that the clients I am representing are not guilty, in the eyes of the law, while I am representing them.

Admittedly, this view of things sounds like a colossal dodging of the question, and even most criminal defense attorneys do not hide behind it.  But it does feed into a view of criminal work that, for me, answers this difficult question the vast majority of the time.  A person accused of a crime is innocent until proven guilty beyond a reasonable doubt based on the evidence.  The job of the prosecutor is to present evidence that proves guilt beyond a reasonable doubt.  My job, as a defense attorney, is to create a reasonable doubt in the mind of the fact finder.  It is not to prove my client innocent.  I am not, therefore, arguing that he ‘didn’t do it,’ or suggesting that I believe that he didn’t do it.  Nor do I have to ask the finder of fact to go that far in their decision-making.  It is enough that the evidence leaves a reasonable doubt, and all I ask the fact finder to do is to return a verdict of not guilty because the evidence admits of a reasonable doubt.  And in the cases that I have taken to trial, there has always been evidence that I can suggest raises a reasonable doubt.

Though this answer is, for all practical purposes, satisfactory to defense lawyers and most people who ask them about the issue, it would seem that there is something visceral lurking behind the question that is not addressed in that response.  To find it, we must ask ourselves what we imagine when we think about a lawyer representing someone he knows is guilty.  I suspect that the typical non-lawyer imagines something like this: a violent, dangerous individual accused of a heinous crime – rape, murder, a vicious assault – where there is plenty of evidence to convict him and get him off of our streets.  But in steps a slick lawyer, smooth-talking the jury, hoodwinking the judge, running circles around the prosecutor, who keeps out the most damning evidence and helps the sicko walk out of the courtroom a free man.  That, it seems to me, is the image that drives the question, and it is to this image that I must address my response.

There were over 10,640,000 crimes in the U.S. in 2009 according to Disastercenter.com.  Of those, approximately 593,000, or 5.5%, were crimes of murder, rape, or aggravated assault.  Remove aggravated assault, and the number drops all the way to .9%.  In other words, statistically speaking, criminal defense lawyers rarely handle the kinds of crimes that drive our fear of wrongful acquittals.  On the other hand, consider this:  The United States has the highest prison population rate in the world, 756 per 100,000 of the national population, followed by Russia (629), Rwanda (604), St Kitts & Nevis (588), Cuba (c.531), U.S. Virgin Is. (512), British Virgin Is. (488), Palau (478), Belarus (468), Belize (455), Bahamas (422), Georgia (415), American Samoa (410), Grenada (408) and Anguilla (401).  This, according to Roy Walmsley’s World Prison Population List.  Together, these statistics lead to the following conclusion: it is much, much more likely that a criminal defense lawyer is keeping someone out of prison who does not belong there, whether guilty or not, than that he or she is keeping someone out of prison whom all of us agree should be there.

It seems to me that reframing our sense of what is happening in our criminal courtrooms day in and day out goes a long way to addressing the visceral concern that drives this question of knowingly representing the guilty.  I spend far too much time fighting a system bent on prison and punishment to worry about the improbability that I may one day have to hold my nose and suggest, in a given case, that there is reasonable doubt based on the evidence when my private belief is that there is no such reasonable doubt to be found.

What I do worry about, however, is my integrity.  It concerns me that I, or anyone, would consistently fail to keep his internal beliefs integrated with his expressed beliefs.  What we experience internally and what we think of as the world around us is really one and the same thing, and what keeps us experiencing that harmony is the truth.  Maintaining our collective sense of things – living with an agreed sense of the reality we share – is more important to us and more fragile than we think it is judging by the way many of us live our lives.  But we all sense its importance intuitively by the disquieting feelings we experience when we veer from the truth, or when we realize that someone else has veered from the truth in their dealings with us.  A lawyer, or anyone, who will argue anything, for anyone, without regard for the truth has lost his sense of integrity, and that is an ugly thing indeed in this world.

Here is what Maher said: “Aren’t they [the Tea Party] exactly what the Founding Fathers feared most, which is people who are ignorant about [ ] the way the world works come to power.  That is what the Founding Fathers hated the most.  They were not for direct democracy.”  Because the comment was aimed at the Tea Partiers, this was a nice applause line for him during the show.  After all, Maher’s audience, me included, want no part of a world in which the Tea Partiers are running our country.  So Maher was able to make this comment without further elaboration, and the discussion remained focused on the Tea Partiers and the debt ceiling rather than on direct democracy.

But consider for a moment the radical import of Maher’s statement: the Founding Fathers did not believe in direct democracy.  On national television Bill Maher told us the uncomfortable truth: we do not have true democracy in our nation, because the Founding Fathers expressly opposed it.  What we have instead is a republic, a representative form of government.  And frankly, it is not very representative.  The president is elected by an electoral college, not directly by the people, a fact that dictates campaign strategies and election outcomes, as we saw most recently in the 2000 election.  One half of our bicameral Congress dilutes the votes of people living in the more populated states.  Our courts are filled with judges who were not elected, but appointed, and have the added insulation of lifelong tenure.  Even the way we cast our ballets, because we have a president and not a parliamentary system, ensures that only those who voted for the winner in an election can really say that their views are being represented.

None of this is radical.  It is simply the observable structure of our system as intentionally designed by the Founding Fathers.  What is radical is that, two centuries after the founding of our republic, we accept without question the safeguards against democracy – the safeguards against self-government – intentionally woven into the fabric of our political system.  We are all so deeply inured in the present structure of our representative government, so hopelessly loyal to the Founding Fathers and our belief that we are a great example of freedom and democracy, that we do not discuss the plain fact that our Founding Fathers were antidemocratic.

For Maher’s part, his comment was actually not all that radical.  The reason is that he referred to it in a way that vindicates the view of the Founding Fathers.  It is one thing to say, “The Tea Party is a bunch of ignorant people, just the kind of rabble that struck fear into the hearts of the Founding Fathers.”  It is quite another thing to say “The Founding Fathers treated us like adolescent children.  They gave us a voice in governing but they were sure to protect themselves from our petulant nature by creating a system that keeps the wealthy, educated class firmly in power.”  Maher certainly did not say that, not even in so many words.  Whether he would favor a system closer to direct democracy, then, is impossible to tell based on what he said on the issue during the show.

So Bill Maher recognizes that we do not have true, direct democracy in America, and he is not afraid to bring that fact up on national television.  It was a bold thing to do, even for a man not known for pulling punches or avoiding hot button issues.  I doubt, however, that a full, open, national discussion of the restraints on our right to govern ourselves will ever take place in America.  Our Founding Fathers set up a system that curbs the excesses of their children, and like good children we idolize our Fathers, even when they are still treating us like children after all these years.