Today Sonia and Angel stopped by. Four years ago, a tiny little Spanish speaking grandmother came to our offices begging for help. Her daughter, Sonia, had suffered complications during delivery and had bled extensively. Now she was in a coma, her kidneys had failed and she had a raging infection. Worse, the next morning, the hospital was planning to send her to a public hospital — in Honduras.

The U.S.News – Best Lawyers® “Best Law Firms” rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in their field, and review of additional information provided by law firms as part of the formal submission process.

To be eligible for a ranking, a law firm must have at least one lawyer who is included in Best Lawyers as part of the annual peer review assessment. Both Joel Robbins and John Curtin have received that distinction year after year. For more information on Best Lawyers®, please visit bestlawyers.com.

I suppose the answer is that God did not let this happen; a person made this happen. God could no more prevent the young man in Connecticut from shooting than he could force another person to be good against their will. Man’s free will necessitates that God does not prevent man from acting badly. If God forced people to be only good, we couldn’t choose to be good. We could be no more than mindless robots, capable of doing no more than what we were programmed to do.

The same God, that would not stop someone from shooting a parent’s child, lost his own child to the evil actions of a crowd. As God looked down upon his son being nailed to a cross, he could not make the Romans stop. He loved man too much to make us his slaves. God does not prevent tragedies. God is there afterward to help us rise above the evil.

Robert Kennedy quoted the Roman poet Aeschylus after the tragic death of his brother, John F. Kennedy.

“Even in our sleep, pain which cannot forget falls drop by drop upon the heart until, in our own despair, against our will, comes wisdom through the awful grace of God.”

After John F. Kennedy was taken by a man who chose to take his life, our country pulled together. As a country, we fulfilled Kennedy’s promise to put a man on the moon. As a country, we followed our better spirits and passed the Civil Rights Act. As a country, we pulled together and put our differences aside for that moment. For every misdeed, for every crime, for every lie that man commits or makes, God is there afterwards to turn evil, wrong and injustice into good, right and justice.

What can God help us to realize? Maybe the death of the children in Connecticut can cause us to make sure that we appreciate every day with those we love. Maybe the fact that life is so unfairly short sometimes can inspire us to live life with gusto. Maybe the fact that a young man could do this may cause us to try and help someone who might be mentally unbalanced and in need of help. Maybe it might cause someone to be polite instead of rude, knowing that our choices can matter for good or for bad.

May we as a country take this horror in Connecticut and use this horrendous tragedy to become better, love more, hate less, and use the freedom that God gave us to do good.

Amen

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The method used to compile Best Lawyers remains unchanged since the first edition was compiled more than 25 years ago. Lawyers are chosen for inclusion based solely on the vote of their peers. Listings cannot be bought, and no purchase is required to be included.

Congratulations, John and Joel!

As Grisham notes, however, the genre has focused almost exclusively on criminal law and criminal trials. Our “insatiable appetite” for legal fiction does not extend to the “drama” of breach of contract actions, will contests, patent lawsuits, or antitrust claims. Forensic evidence and witness interviews trumps the excitement of reviewing thousands of pages of documents or grueling day-long depositions. Civil litigation has failed to spark the imagination in the same way the criminal justice system has.

But there are many exceptions to this rule, and Hollywood has produced a fair number of movies involving the civil litigation process. My goal is to highlight my favorite ten movies that celebrate those of us who practice in the civil, rather than criminal, areas of law.

Medical Malpractice: The Verdict (1982). Paul Newman plays a washed-up attorney, Frank Galvin, whose partner hands him a “sure win” medical malpractice case to help him get back on his feet. However, not surprisingly, things go terribly wrong before Frank is able to pull himself, and the case, together at the last moment. A wonderful performance by Newman. This movie is listed as the 254th “greatest movies of all time” in Empire magazine’s list of the top 500 films.  However, the concept of a scotch-swilling medical malpractice lawyer is inherently unbelievable.

Environmental Law:  Erin Brockovich (2000). Julia Roberts plays real life paralegal (now attorney) Erin Brockovich. In the movie, Brockovich was a single mother of three, working as a file clerk for her personal injury attorney. She stumbles upon a case of groundwater contamination involving a California utility. Roberts won an Academy Award for best actress for her role in the movie, and the film was also nominated for best picture.

Employment Law: Philadelphia (1993). Tom Hanks plays an AIDS-infected attorney, Andrew Beckett, at a large Philadelphia-based law firm.  Fired from the law firm, purportedly for work-related issues, Beckett hires his own attorney, played by Denzel Washington, and proceeds to sue his prior employer.  As usual, solid performances by both Hanks and Washington.

Family Law: Kramer vs. Kramer (1979). Dustin Hoffman plays Ted Kramer, a New York based advertising executive who finds himself caring for his young son when his wife leaves him. An early “father’s rights” movie, with excellent performances from Dustin Hoffman and Meryl Streep.

Products Liability: Class Action  (1991). A defective car and one attorney’s efforts to obtain relief provide the backdrop for this 1991 legal thriller. Gene Hackman plays the plaintiff’s attorney, and Mary Elizabeth Mastrantonio is his estranged daughter and, coincidentally, the manufacturer’s lawyer. In one particularly accurate scene depicting modern litigation, the manufacturer seeks to hide a particularly damning piece of evidence by hiding it in boxes and boxes of documents delivered to the plaintiff’s attorney.  Trust me, this is a real life litigation strategy.

Appellate Law: The Pelican Brief (1993).  I liked it, but the book isn’t even close to one of Grisham’s best.  However, it does star Julia Roberts and Denzel Washington, has plenty of action, and does involve appellate law (the murder of two Supreme Court justices as special interests seek to gain an advantage on the Court). Probably the weakest link on my list, but I’m including it anyway.

Environmental Law (again): A Civil Action (1996): Like Erin Brockovich, this movie, starring John Travolta, is based upon a true case, and again, another groundwater contamination case.

Mental Health/Family Law: I Am Sam (2006). Sean Penn plays a father with a developmental disability seeking custody of his seven year old daughter (played by Dakota Fanning).  Michelle Pfeiffer plays his lawyer.

The Hereafter: Defending Your Life (1991): I’m probably cheating with this one, but I’m including it anyway. Albert Brooks plays a Los Angeles advertising executive who dies in a car accident on his birthday and, at “Judgment City,” must defend his life. Good performances by Brooks, Meryl Streep, and Rip Torn.

Mental Health: Miracle on 34th Street (1947).  Is there really a Santa Claus? This issue is addressed in a commitment hearing in this Christmas classic. Starring Maureen O’Hara and Natalie Wood, among others, and awarded Academy Awards for Best Actor in a Supporting Role (Edmund Gwenn), Best Writing, Original Story, and Best Writing/Screenplay.  It was also nominated for Best Picture.

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The notion that trial lawyers are at war with the concept of “personal responsibility” comes from a warped concept of what that term means. These days, the person shouting “personal responsibility” the loudest, is all too often the person trying desperately to AVOID being held responsible. We hear the litany of “personal responsibility” from negligent doctors, careless drivers and irresponsible manufacturers. They say that people “ought to take personal responsibility for what happens to them.”

This sounds good, but there is a subtle distortion in this statement which has profound consequences. I make choices and decisions in my life, and I am perfectly willing to be accountable if I am wrong. But what if I am wrong because I have been lied to, or someone has withheld information crucial to my decision? Am I personally responsible for other people’s choices as well? What happened to the personal responsibility of the liar? If I have to take full responsibility for what happens in my life, what happens to the accountability of others?

I may make a free will decision to proceed through an intersection, believing that I have the right of way.  If I am wrong, it’s my fault.  But if someone else runs a red light and destroys my car and my health, should I “take personal responsibility’ for what has happened in my life?  What kind of logical or ethical principle holds me responsible for the bad decisions of others not subject to my control?  What benefit is there to excusing the negligent, and blaming the victim?

Some people seek the benefits that go with high paying, responsible careers, but seek to avoid being held accountable when they fail to execute their responsibilities competently and carefully. Wall Street CEOs who drive companies into bankruptcy, and walk away with “golden parachutes.” They think investors should take personal responsibility. Doctors, who enjoy the deference and respect paid to their profession, but think they should be excused when they fail to live up to the trust patients put in them. They think patients should “take personal responsibility for their health.” But when a professional claims the high salary and prestige of a position where people will rely on them, the professional cannot complain when people hold him or her accountable for not being reliable. Personal responsibility for health is all well and good, but relying on the advice and guidance of one’s doctor is how we as individuals meet that responsibility. The quality of the medical services and advice is the doctor’s responsibility, not the patient’s.

If you get paid to have people rely on your advice, you shouldn’t complain when they DO rely on it. Don’t whine if they hold you accountable for carelessness. Don’t complain that the consequences of seeking education and responsibility are that you are held to a higher standard than a layperson. You took on the “personal responsibility” when you chose the career.

When I was a child, my parents taught me that taking responsibility is only part of what is required. If I broke a window in my neighbor’s house, it wasn’t enough to own up to it. I needed to make amends for my carelessness by paying for the window out of my paper route money. It is not enough to be responsible – we need to be accountable as well.  Too many of the folks who cry “personal responsibility” these days are simply trying to avoid accountability. And that, from a moral, ethical, and logical viewpoint, is simply wrong. As a trial lawyer, I LIKE the concepts of personal responsibility AND accountability – so long as they aren’t being used as cynical excuses by the negligent to avoid their own culpability!

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The audience chuckles at the prospect of the Sheriff tricking courts with a pretextual claim that underwear is being stolen when in fact it is just another way of stigmatizing those accused of crime. In fact, the audience merely heard a second pretext which covered the more cynical true reason for pink underwear. In discussing his reversal on the issue of immigration with a reporter, Sheriff Arpaio revealed the true purpose behind pink underwear. “You know what my joke is: I can get elected on pink underwear. I don’t need this illegal immigration to get elected.”[2]

Sheriff Arpaio doesn’t care about the color of his inmates’ underwear. He doesn’t care about what is right or about what is good correctional policy. He cares about doing what is popular. He cares about getting reelected. The cruelty or inhumanity of the Sheriff’s policies or decisions is never considered, only whether the general public will eat up the publicity.

In November 12, 2001, Erik Vogel is floridly psychotic. He enters the jail after wandering through his neighborhood aimlessly.  He is paranoid and schizophrenic.  When approached by police officers, he says that he needs to speak with the President.  They fight until one of the City of Phoenix police officers recognizes that there is a better way.  Rather than fighting, the officer says that they could take him to the president.  The fight stops. Erik is arrested and taken to the jail.

When he arrives, he is identified as mentally ill.  He is supposed to be taken to the mental health care unit.  He believes he is in the World Trade Center.  He keeps saying that the satellites are watching.  He characteristically buttons his shirt all the way up and is a very shy person.  When told that he has to dress out into the pink underwear of the jail, he refuses.  Erik believes that he is being dressed in pink underwear as a precursor to being raped.  In his psychotic state, it is real to him.

Regardless of whether pink underwear should be worn by pretrial detainees (who according to the law cannot be punished until they are convicted), should a mentally ill man have his clothes forcibly removed by many unfamiliar men stripping him naked while on the dirty jail floor so they can place him in pink underwear while he screams that he is being raped? Who wins? Did the Detention Officers win as they placed the pink underwear on a mentally ill person? Did the public win?

Or do we all lose? In striving for public adulation, the policy of pink underwear is enforced against everyone, including the mentally ill. Detention officers have to fight to put pink underwear on those that aren’t capable of understanding the joke. Erik Vogel stays under his bed in the mental health care unit for three days and dies the day he thought he would have to return to the place he thought he was raped.

Pink underwear matters when it is based upon a lie. Pink underwear matters when it reveals mindless cruelty without exception, where it forces Detention officers to fight with psychotic inmates instead of allowing them to be taken to the mental health unit in a restraint chair to be sedated and changed into jail clothes or be allowed to wear white underwear that hasn’t been died pink yet.

Pink underwear matters because it evidences the fact that our Sheriff has put his ego above his oath to uphold the Constitution. That should never happen in our country.

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Yet, every two years in November, as we fill out our voting ballots, we confront little more than a two item menu. For President: Democrat or Republican. For Senator: Democrat or Republican. For Governor: Democrat or Republican. For well over a century, these two parties have controlled American politics from local to the national level. In economic terms, the two parties have a duopoly; the “market” for political power is not free or open, but dominated by the two parties.

Not surprisingly, numerous recent polls show that a majority of Americans are unhappy with both parties and the domination of politics by the two parties. Politicians themselves have joined this chorus; most recently, former Republican presidential candidate Jon Huntsman called for the formation of a third party, notably, phrasing his concerns in economic terms: “All I can say is I’m looking at the political marketplace and the duopoly is tired and we’re stuck in a rut.”

Notably, Americans’ concerns with a two-party system are not novel, and were voiced by our founding fathers themselves. In 1789, only a year after our Constitution was adopted, John Adams stated:

There is nothing which I dread so much as a division of the republic into two great parties, each arranged under its leader, and concerting measures in opposition to each other. This, in my humble apprehension, is to be dreaded as the greatest political evil under our Constitution.

George Washington, in his farewell address on September 19, 1796, stated:

The alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissention, which in different ages & countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders & miseries, which result, gradually incline the minds of men to seek security & repose in the absolute power of an Individual: and sooner or later the chief of some prevailing faction more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of Public Liberty.

While our founding fathers distrusted political parties, and feared the rise of a two-party system, they inadvertently contributed to the very political Frankenstein that they dreaded. As the founders of one of the first true democracies in the modern era, our founding fathers did not have the advantage of research on the impact of voting methods on the development of political parties. Thus, the form of voting utilized by our founding fathers was the most intuitive form, called “plurality voting,” in which the candidate with the most votes wins – even if the candidate did not receive a majority of the votes cast (“majority” meaning 50% or more votes, not simply the one with the most votes). The net result is the “spoiler” effect, in which the presence of more than two candidates can result in the election of the “least desirable” (from a normative standpoint) candidate.

This “spoiler” effect most recently impacted a national election in the 2000 presidential election. The fate of the Bush/Gore election rested on the results from Florida, which produced the following final results:

CANDIDATE     VOTES       PERCENT

Bush                2,912,790     48.847%

Gore                2,912,253     48.838%

Nader                97,488         1.635%

Al Gore lost by 537 votes; presumably, had Nader’s supporters chosen among the two major candidates, he would have gained more than the 537 votes necessary to win Florida.

The impact of plurality voting on political representation was studied at length by French sociologist Maurice Duverger, who theorized that a plurality rule election system tends to favor a two-party system. Duverger’s work, published in the 1950s and 1960s, is now known as “Duverger’s Law” or “Duverger’s Principle.” A corollary to this rule is a “double ballot majority system” (requiring a run-off between the top two candidates of an earlier election) or “proportional” representation leads to multipartism.

The spoiler effect of plurality voting may rear its ugly head in this fall’s general election. Maricopa County’s sheriff, Joseph Arpaio, is running for reelection, but is possibly vulnerable due to scandals and suggestions of corruption within the Sheriff’s Office. However, he is opposed not by one, but two, honorable and capable candidates, Phoenix Police Sergeant Paul Penzone, a Democrat, and Scottsdale Police Lieutenant Mike Stauffer, an independent. Should these two candidates receive a majority of votes between them, but fail to obtain exceed Arpaio’s vote total, the Sheriff could be reelected without receiving a majority of votes.

Our founding fathers did not have the benefit of the work of Duverger and other sociologists and political scientists. However, our Constitution does not require plurality voting that leads to the two-party system. Article I, Section 4, of the Constitution, leaves the manner of elections to the States:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations. . .

Either Congress, or our State legislature, has the power to end the duopoly of the two parties and create a voting system that maximizes the free market of political ideas and power. Whether they have the will and courage to do so is, of course, an entirely different matter.

Sidebar: Presidential Elections That May Have Been Swayed By The “Spoiler” Effect:

YEAR       WINNER                ”SPOILER”            DENIED VICTORY
1800   Thomas Jefferson   Charles C. Pinckney          John Adams
1844   James Polk                   James Birney                  Henry Clay
1848   Zachary Taylor         Martin van Buren            Lewis Cass
1876   Rutherford B. Hayes    Peter Cooper              Samuel J. Tilden
1884   Grover Cleveland          John St. John              James Blaine
1912   Woodrow Wilson      Theodore Roosevelt      William H. Taft
1968   Richard Nixon            George Wallace          Hubert Humphrey
1992   Bill Clinton                    Ross Perot              George H.W. Bush
1996   Bill Clinton                    Ross Perot                      Bob Dole
2000  George W. Bush           Ralph Nader                     Al Gore

(1) The opinions expressed herein are those solely of the author, and not of Robbins & Curtin, PLLC. Robbins & Curtin, PLLC, wants to feature blogs from the individuals in the firm that represent  the beliefs of the individuals within the firm but not of the firm itself.  IMHO or “In My Humble Opinion” blogs are not necessarily the opinions of the firm but represent well thought out opinions that should enter the public discourse.

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