“It is from numberless diverse acts of courage and belief that human history is shaped. Each time a man stands up for an ideal or acts to improve the lot of others or strikes out against injustice he sends forth a tiny ripple of hope, and crossing each other from a million different centers of energy and daring, those ripples build a current that can sweep down the mightiest walls of oppression and resistance.”
Robert F Kennedy – 1966
Our courts are supposed to uphold justice for all, or so we’re taught in school. We trust in the courts to be the final arbiters of law and justice, and that trust must remain absolute. Most every court in the Nation has an allegorical representation of justice, to remind those who pass through their hallowed portals as well as those practicing law or upholding it as judges or jurors that the law is paramount. Justice, holding balance scales is blind, supported by law books is the usual depiction.
That blindness represents fairness and equal treatment of all, as she’s not supposed to favor one side or another in any case, hence the balance. The scales are to weigh the merits of each case. She holds a sharp sword in the other hand, unsheathed, ensuring swiftness; her blindness promising that the sentences are metered without prejudice. Well, that’s the lesson in American jurisprudence iconography we all learned, in summary.
Regrettably, justice sometimes truly is blind and smart trial lawyers, practicing their craft in the sacred chambers of our courthouses know how to manipulate her, turning her all too often into dark, dangerous paths. Personal injury cases have become so abhorrently corrupted that the system is now to the point where some lawyers literally engage in acts of a criminal nature to ensure that their clients, principally insurance companies, get what they want. Certainly, that’s a clear indictment of the system, and all too many of its contributors.
Lawyers on either side of a case can be guilty. Years ago and even today, ‘ambulance chasers’ – personal injury plaintiff’s lawyers – used to exaggerate the claims of their clients in order to extract very large settlements or jury decisions, expecting the insurers to pay the costs. That was unfair and laws were changed to protect insurers and citizens against such fraud.
Rules were established to protect the defendant from fraudulent claims. Nowadays, defense litigators are using the same sort of usurpation of justice. This includes knowing, willful participation in acts of perjury in an effort to protect clients (really the insurers) from excessive payouts.
One of those rules allows the defense to engage a doctor for an expert medical opinion of the plaintiff’s injuries. Of course, the plaintiff is equally entitled to the same right – to have medical expertise testify about his or her physical condition. Expert witnesses can be honorable, decent people, or they can be deceitful participants in fraud. It is the jury’s job to determine which, and a process of depositions, and cross-examination to bring out the facts – educating jurors or judges in advance of their decisions. In no litigation throughout this land, should any expert witness ever be a routine participant, or even an infrequent actor, in perjury as such behavior seriously undermines the integrity of all jurisprudence.
When some expert witnesses performed medical exams with exaggerated reports for the benefit of plaintiffs, everyone screamed foul years ago. Today, the identical phenomenon is happening to the horrendous consternation of plaintiffs who are almost always wronged in legitimate cases. The presumption of innocence in such cases is gone, and every plaintiff is alleged if not accused “guilty” by defense attorneys, of fraudulent, excessive claims. Even if the claims are completely legitimate, that presumption is applied.
Given the history of ambulance chasing lawyers, there’s some degree of fairness to the presumption, but only to the extent of suspicion. The purpose of the defense’s right to medical or mental examination is to root out false cases. It is used these days, however, as a tool to claim, not prove, falsified medical claims. There are sufficient ways in the system to protect them, thus perjury, a criminal act, should never be used.
Not only do defense lawyers use sham medical mills – doctor’s practices devoted solely or primarily to exams for court cases, they also knowingly, willingly, and actively participate in the subornation of perjury. With full foreknowledge that the doctor is a highly paid ‘expert’ who’ll deliver the report they want, insurers and defense lawyers contract these medical practitioners to create false reports and even to perjure themselves on the witness stand.
Defense lawyers use the medical examinations as a cause to refer, publicly, to the plaintiff as a criminal, before judges and juries who are often swayed by the visual presentations, the dog-and-pony shows and the often ridiculous statements of the doctors who are paid vast sums to state misinformation under oath.
State and federal law prohibits the act of, or participation in perjury (subornation) to prevent such fraud in our courts. Few have the courage, the bravery and the integrity to show, clearly, that the lawyers, doctors and insurers are engaging in this criminal activity which undermines our judicial system.
Certainly the plaintiff’s lawyer won’t challenge it too far, since one day he or she might be sitting in the defense lawyer’s seat, and may want to use the same play. They won’t challenge the practices of the examining doctor too far either, since doing so might mean that their ability to discredit the physician on the stand might be eradicated. Few will ever take up the mantle of calling these acts of perjury what they really are – a criminal act that cannot, and must not be tolerated.
Lawyers are officers of the court, sworn to uphold, not to intentionally break the law. Yes, that sounds naïve and perhaps a bit childish, but justice is, after all, supposed to be blind. Does justice deserve to be stabbed in the back by these acts of crime? Which is worse, an exaggerated claim that can legitimately be fought, or the use of perjury as a tool to fight the claim?
When a citizen is called for jury duty, or a judge sits in judgment of a civil lawsuit, they must keep in mind that an act of perjury does not legitimize fighting a perceived crime. If the plaintiff is accused of exaggerated claims, the defense lawyer has no right to violate the system by breaking the law to affirm a presumptive allegation. Jurors or jurists must question, continuously, the legitimacy of the expert, and must weigh the possibility that the expert called by the defense is committing a crime, and the defense litigator is potentially involved in the deception presented.
So, the ambulance chasers, bad as they were, truly are no worse than defense attorneys in putting forth falsified claims. Actors in perjury, or the subornation thereof, disgrace the courts, their honorable professions, their colleagues, clients, and the integrity of our judicial system. From workers compensation cases to any civil trial, any participation in perjury for profit must absolutely, be ended.
When in the history of American jurisprudence, was license given to any participants in a legal action to violate the law in the name of winning? Shouldn’t winning be on merit, truth, facts and the litigation being based on fair, balanced and equal treatment?
Justice must be fair, equal and uncompromised by illegal acts by either side in a civil case. Without such a doctrine, our courts fail. Justice perverted is justice denied. The participants, all of them, are injured, and the citizens of this nation, built on the rule of law, are gravely harmed. Each case in which lawyers, particularly defense lawyers – often working with insurers, participate in the act of any crime to fight their case devalues our citizenship, our rights and the rule of law.