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Sexual Abuse

What Is Justice and When Is It Served?

“Winning” isn’t problem-solving, so playing to "win" isn't helpful.

After the judge in the Bill Cosby trial declared a mistrial, I read an article by Pat Saperstein titled Lena Dunham, Kumail Nanjiani, Alleged Victim React to Bill Cosby Mistrial that was published in Variety. I certainly wasn't physically present during that trial and my knowledge base regarding the facts and circumstances of that case is limited to that which I've read or heard in the media. I am therefore not going to state my opinion on the case itself. I do, however, have a very strong opinion with regard to the following statement issued by Lena Dunham shortly after the mistrial was announced:

"When women see justice served, their own fear & trauma are eased. When they don’t, survivors of sexual assault have to watch every day as the legal system calls them liars and denies their truth. It’s an unimaginable grind. My heart is with every survivor reliving the erasure of their own experience today."

I completely agree with Dunham's sentiment and had a very visceral reaction to it for a variety of reasons.

First of all, I don't happen to equate what does or doesn't occur inside a courtroom with "justice." In fact the following is an excerpt from The Grave Mistake of Confusing Concepts of Justice and Fairness With the Law, an article I published in Huffington Post in 2013:

"One of the gravest mistakes people make is equating law with concepts of justice and fairness. In fact, the following phrase is engraved above the entrance of the United States Supreme Court building: 'Equal Justice Under Law.' It is important to note that it does not say 'Equal Justice' because that is limited to the context of the 'Law.' In other words, a court’s role is to resolve cases and controversies in accordance with the law, and to interpret the law, if necessary. By the way, 'fairness' is a synonym for 'justice.'

In order to conclude that 'Equal Justice' and 'Equal Justice Under Law' are the same, one must believe that laws are based upon concepts of fundamental fairness.... The law is the law and justice is justice. If the law is not necessarily just, how can 'Equal Justice Under Law' be just or fair?...

You may have noticed that I did not refer to 'Equal Justice.' My reason for removing the term 'Equal' is that whether or not 'Justice' is applied 'Equally' has been an ongoing source of debate throughout history."

How can "legal justice" and "justice" possibly have the same meaning, when you consider the role of attorneys in our legal system? In that regard, the following excerpt from Don't Mess With Roy Cohn speaks for itself:

"Of all the attributes of a good lawyer, cynicism is certainly among the foremost. How else could one weave a defense for a client who is guilty? Like mock UN assemblies for college kids, one day you argue the Soviet Union's position; the next, the United States', What you say has little to do with what you believe. In fact, convictions can get in the way You're an advocate, not a judge. Your interest is form, not content—the process. Surprising the prosecution, entertaining the jury, flattering the judge, leaking information to the press, figuring out angles, coaching testimony, unearthing sympathetic witnesses, feigning anger or sorrow—they're all part of the game....

The rules of the game don't count as much as winning....

His cynicism is taught in the most respectable law schools. Lawyers are supposed to be essentially amoral; advocates, not judges; to represent a client, not the truth; to create a reasonable doubt, even if you have none: to turn a trick for a fee—doing whatever is necessary, short of breaking the law yourself, to protect a client.

That distinguished jurist Oliver Wendell Holmes wrote, 'For my own part, I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether.'...

Every time a lawyer advises his client to preface his testimony with, 'To the best of my knowledge' or some other hedge, as likely as not he is being true to Holmes's accepted wisdom.

As Mr. J.P. Morgan once harrumphed, 'I do not want a lawyer to tell me what I cannot do. I hire him to tell me how to do what I want to do.'"

If you're seeking justice in a court of law, I'm afraid you'll likely be sorely disappointed.

Regardless of how you define "justice" and whether or not you believe it's the same as "legal justice," the feelings people experience when they believe justice to have been served are similar irrespective of whether or not those people happen to be women and whether or not we're talking about "survivors of sexual assault." By the same token, the feelings people experience when "the legal system calls them liars and denies their truth" are similar regardless of gender and circumstances.

Please don't misunderstand my point. I am by no means minimizing the validity of Dunham's sentiment, as it applies to women survivors of sexual assault. However, do understand that men can also be "survivors of sexual assault." Do you think that Dunham's statement doesn't apply equally well to them? How about those, regardless of gender, who have been victimized when "the legal system calls them liars and denies their truth."

This is exactly what I was trying to convey when I said the following in my article Injustice at the Hands of Judges and Justices:

"When judges and juries make factual findings that essentially rewrite history, the legal result cannot be just. I can't being to describe how it feels to listen as a judge shares the fictional story of events and circumstances that never actually occurred and applies the law to those facts. It is an experience you will never forget and it will haunt you until your dying day because only then will you understand why you will never again want to pursue a matter in a court of law. Legal justice is by no means the same as fundamental fairness, and when it isn't even based in reality, it is nothing less than legal injustice."

I've personally experienced such injustice. I've had the legal system call me and every witness that testified in the trial involving a creditor claim against my mother's estate, other than the claimant himself, "liars and deny [our] truth." Durham is absolutely correct when she refers to it as "an unimaginable grind" and "the erasure of their own experience."

I didn't attend law school because I wanted to practice law. You see, while the case involving my mother's estate was far in the future, I had already personally witnessed and experienced the realities of our legal system. I wrote about those experiences in a 7-part series of articles titled Lessons I Learned from My Parents, which I published in 2013. I attended law school because I hoped to gain insight that I could use to assist people in not suffering injustice through our "justice system."

What I didn't expect was to be told by the individuals working in my law school's career center that the only jobs available at the time for recent law school graduates involved the actual practice of law.

It's no wonder that over a quarter century later and now working primarily as a mediator, that I would find this work far more personally rewarding. However, it bears mentioning that for quite some time while engaging in the practice of law, I lost sight of my truth to some degree and actually began believing that "legal justice" was the same as "fundamental fairness." Working in the field, advocating for your client and frequently prevailing in court can lead to confusion in that regard.

On those occasions in which I went to court on a matter and didn't prevail, I knew that I was merely my clients' advocate. I understood that my clients always knew more than they told me, some of which would come out in discovery, evidence submitted by the other side, and the other side's cross-examination of my client, among other things. I was certainly disappointed on those occasions in which I lost and thought I should have prevailed, but I tended to chalk it up the fact that my client hadn't been entirely forthright with me. After all, I only knew the information I was given in the course of my representation; whereas, the parties themselves knew what had actually occurred. I had convinced myself that as triers of fact, judges actually flushed out the truth.

My false belief came to a head when I stared reality in the face. That occurred when I sat in a courtroom in my capacity as the successor trustee of my mother's Trust and executor of her Will and listened in complete disbelief as the judge rewrote history. The judge could not have made the factual findings she did without silently calling me and the other witnesses liars and denying our truth. My youngest brother and I sat next to each other completely dumbfounded as we listened to the judge erase our experience and rewrite it in accordance with what she believed or wanted to believe.

The "unimaginable grind" that Dunham described is what led to my paradigm shift from win/lose to actual problem-solving and my advocacy work.

"Working as a mediator closely aligns with my core values and how I define them. Two of the values that speak to me the most and without which I would not be who I am are 'fairness' and 'making a difference.' In addition, I define mediators as 'peacemakers', not 'deal brokers,' and lawyers as 'warriors' and 'gladiators.' As I began realizing that 'legal justice' is not the same as 'fundamental fairness,' I lost my passion 'making a difference' through it."

I'd be lying if I denied the incredible high I experienced when I won a case in court. Irrespective, the false reality I'd come to believe was shattered the instant I heard the judge describe a story of events and circumstances that never actually occurred and properly apply the law to those alternative facts. What made it even more painful was that we had the proverbial smoking gun and were unable to use it or obtain certain otherwise important evidence due to legal technicalities.

Remember, a lawyer is "an advocate, not a judge. [Their] interest is form, not content—the process."

It didn't matter that I found a letter on my mother's desk, which proved the claimant was lying. You see, the discovery referee in the case deemed that letter inadmissible because it was addressed to the claimant and we couldn't explain how it came into her possession. The claimant's attorney saw the letter and knew it would destroy his client's case, so he used legal technicalities to render it inadmissible - it was as if the letter never actually existed.

The case he presented had little to do with what he believed. After all, he had seen the smoking gun, worked diligently to have it excluded as evidence, and presented a very different story to the court. As his client's advocate, it was "all part of the game" and he did what he had to do to win that game.

I attended and graduated from law school. I've been a lawyer for over a quarter century at this point. As much as it pains me to admit, the following statement from Don't Mess With Roy Cohn couldn't be more accurate:

"His cynicism is taught in the most respectable law schools. Lawyers are supposed to be essentially amoral; advocates, not judges; to represent a client, not the truth; to create a reasonable doubt, even if you have none: to turn a trick for a fee—doing whatever is necessary, short of breaking the law yourself, to protect a client."

While I still can't fathom how the judge arrived at her factual findings, I am well-aware that her findings were based upon the legally relevant and admissible evidence, which is by no means the same as having all the information.

While Roy Cohn may have personified "the problems of the law," the problem is systemic and by no means limited to Roy Cohn.

From everything I know, "winning” isn’t problem-solving. Our adversarial system really is a form of violence, which people are increasingly realizing.

A not so well kept secret is that it's not uncommon for litigators to suggest that their clients receive prescriptions for antidepressants, anti-anxiety medication, and other such drugs.

When I was involved in the litigation pertaining to my mother's estate, a psychiatrist prescribed antidepressants and anti-anxiety medication to help me function because of the impact the litigation had on me. In spite of all that, there were days on end that I couldn't get out of bed and the stress greatly exacerbated my Crohn's Disease. I was an absolute wreck and the litigation and the fear and anxiety over how it would end consumed me.

I happen to agree entirely with what Vincent Cardi said in his article, The Law As Violence: Essay: Litigation As Violence, published in the Wake Forest Law Review in 2014, which ended as follows:

"Making lawyers and the public more aware of the serious psychological harm to those involved in litigation is a moral obligation of the profession and would likely lessen the harms over time. As attorneys, we each have a moral obligation to know who will be hurt by our actions and a professional obligation to tell our clients of the harm that will likely accompany litigation....

Professor Daniel W. Shuman points out studies showing that delays in the litigation process are a particular cause of psychological harm to litigants....

Because an awareness of the likelihood of psychological suffering could be expected to deter some clients from filing suit, attorneys have a financial incentive not to advise the client of these problems. A court rule requiring attorneys to inform their clients of the serious psychological harms that often accompany litigation might be appropriate.’”

Clearly, litigators can see the severe psychological toll the litigation takes on their clients; yet, they tend to fight to win a zero-sum game.

I've had a great many life experiences which have led me to feel the way I do today. Since I write a lot about empathy conversations and the importance of understanding the emotionally substantial real life experiences that lead people to believe what they believe, I'm sharing yet another one of mine.

Whenever you are involved in a conflict or dispute, you have a binary choice as to whether you want to engage in a win/lose game, or try and problem-solve. Like professor Lawrence Susskind, "I am very supportive of a 'problem-solving' view of mediation. In too many situations, mediation is viewed as the last step in adjudication (i.e. when impasse has been reached), rather than as the first step in a collaborative effort to head off a problem or work out a creative solution."

More from Mark B. Baer, Esq.
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