Origin and Cause
Origin and Cause
Bang. You're dead. When I was a boy, a homicide was a homicide. Call the cops. Get forensic to the scene. Take photographs. Get fingerprints. Do plaster casts of tire treads. Analyze cigarette ash. Send semen or blood samples to the lab. Arrest. Don't arrest. Prosecute. Don't prosecute. Jury trial. Convict. Set free.
I watched cops and robbers on television and wanted to grow up and be a policeman. Max Bramble: Homicide Detective. That's how I saw myself. The way other boys felt about the World Series ... that's how I felt about justice. Good. Bad. Right. Wrong. It was better than baseball cards. Justice was a high-contrast morality play. A black-and-white movie. No fuzzy lines. No smears. No obfuscations. No obliterations of boundaries.
Then the Supreme Court got busy. It threw away its fine-line black ink pens, took out its pastel chalks, and proceeded to draw an impressionistic clown's mask on the face of justice.
So I didn't grow up to be a cop; instead I became a lawyer. I defend individuals or corporations who are being sued in a civil court of law. And the Supreme Court ruling that affected me and my old friend Justice the most involved a case called Dole versus Dow.
Before that landmark ruling, a plaintiff (the person doing the suing) had to prove total negligence on the part of the defendant (the person being sued). Even one percent negligence on the plaintiff's part meant that he couldn't recover any damages.
After Dole v. Dow, though, the plaintiff only had to prove comparative negligence. This meant that if the jury found in his favor, a percentage of his own negligence would be factored in when awarding damages, and the financial award would be reduced accordingly.
Or, to translate that into English, when Timmy was growing up, if he climbed a cyclone fence, broke into a schoolyard, shimmied up a drainpipe, scampered along the roof, and then crashed through the skylight over the gym and broke his back, he would have been arrested in the hospital, injury or not, for criminal trespassing.
Now, with comparative negligence as a criterion, Timmy can flick the glass off his broken bones and tell Mom to call his attorney. Then he can sue the school for six million dollars (factoring in his pain and suffering and loss of future earnings), claiming that the school's Risk Managers should have planned for the possibility of trespassers and put security bars over the skylight to protect Timmy (and them) from his actions.
If the jury finds in his favor (they usually do), Timmy's six million dollar award might be reduced by one or two million because of his comparative negligence in having been up on the roof in the first place.
So, he'd get only four million dollars for violating the law and destroying school property, instead of six.
Woe is Timmy.
I'm getting rich on Dole v. Dow.
And, no, not because I represent the trespassers of the world. And I don't practice criminal law, either. My idea of justice isn't getting a thug off on a technicality. What I do, though, and what I'm pretty good at, is defending my clients in civil-liability lawsuits. Meaning that if I had been the defense attorney for the school with the skylights, by the time I was through with Timmy, his parents would not only have lost the case, they'd even have had to pay the school's court costs -after we'd won.
I switched to product-liability law after the Catholic Church got involved in a homicide in the little town of Burgess, New York-a homicide that, because of the church's intervention, rapidly became a "celebrated case." Don't ask me why they got involved. It was a big mistake in terms of public relations.
Seems Hugh James was an altar boy (they all are), and his mother, devout, decent, long-suffering (they all are), was inextricably involved in the c