Justice is supposed to be blind, but is it also supposed to be random?
I recently read where a foreclosure defense attorney who is definitely one of the good guys and has gotten many favorable rulings for homeowners said that—paraphrasing—his victories are “random” to a larger degree than most people would think.
He does point out that he still actually has to do the work, i.e., put together a proper pleading, cite the relevant law correctly, make the right arguments, etc. In other words, what is meant by “random” in this case (pun intended) is not that he can just show up empty-handed and with no case preparation and it could go either way. Rather, what he means is that it depends on which judge shows up, which attorney for the bank shows up, how the relevant documents are phrased, etc.
Still, this attorney’s comment confirms what a number of people in the anti-foreclosure community have long suspected—that “the law” really has nothing do with whether or not one will be made homeless or not. The facts of the case are not the sole deciding factor. Maybe not even the biggest deciding factor. Maybe not even part of the court’s calculation.
Get off your high—and low—horse
I want to make clear that I do not at all mean to impugn this attorney in any way. I’m just glad that someone within the system and who is squarely and unequivocally on the homeowners’ side admitted it. It explains a lot and in some ways helps comfort the disturbed and disturb the comfortable.
That is to say, when a homeowner bemoans the loss of their home despite the law and the facts being in the favor, that homeowners’ disappointment and anger is easily painted by some as sour grapes and/or conspiracy theory. In fact, it is often homeowners who win their cases—or strongly believe that they will win—who gloat over those who lost, accusing the losers of not doing it right, not understanding the issues, not having the right attorney, not having an attorney at all, not using the magic words and the magic argument, etc. Turns out, though, that it’s random, so the losers shouldn’t feel so bad and the winners shouldn’t feel so good because it could’ve gone either way at any time.
Is this acceptable?
The question must be asked, though, is this apparent randomness acceptable? Is there not some way to prevent said randomness? I was under the impression that law school would’ve taught that following the law is the goal, but apparently in law school, those who can most successfully argue both for and against the law are the superstars. This is presumably done in order to promote arguing for the law by having a student come up with—and then counter—arguments against it. Indeed, this article from Westlaw sums this point up quite well:
“The other side.
The hardest part of legal analysis, I think, is to keep one’s mind open to all sides of an issue. We tend especially in the adversary process to blot out opposing positions. We take a stand and justify it. But there is almost always another side, or several. And you can’t be sure that your view is (a) correct or (b) properly articulated and defended, unless you have asked yourself: “What can be said against my interpretation of the facts and the law, what would the other side argue?” A really good examination answer not only suggests the preferred solution, but it develops both sides of the problem.
You should master the technique of arguing in the alternative. If you deal with an issue and resolve it, and you are aware that had you resolved it the other way you would have had to deal with other issues consequent to the other solution, argue the point in the alternative. Don’t duck issues that the facts do invite you to discuss.”
Yes, it is certainly good to know what your opponent might try to use against you. But one would think that just because an attorney who has become a judge has been trained to argue “in the alternative,” that does not mean that said alternative can be seen as being an acceptable decision.
Meanwhile, those of us who didn’t go to law school are taught that the law is the law—i.e., it is what it is–not what it can argued either way that it is (or is not), judges are impartial, and the truth will out due to the adversarial nature of the system, etc. A Raw Story columnist puts it this way:
“In his diatribe, Senator Cornyn also said that the judiciary should be “an enforcer of political decisions made by elected representatives of the people.” I guess he hasn’t read a rudimentary civics textbook recently. The job of enforcing the nation’s laws would not be the job given to judges—the job of a judge is to interpret the laws, and when necessary, to arbitrate between laws that are in conflict with each other or with the Constitution. Judges are meant to be impartial and completely separated from and unaccountable to the elected representatives of the people. That is why federal judges are appointed to life terms, and thus removed from the political ebb and flow governing the daily life of politicians today.”
I realize that to some degree, this is getting out in the weeds, but then again, so is the idea that a homeowner who goes to the trouble to hire an attorney (or not) to fight a bank can keep or lose her house based on essentially nothing more than chance.
Don’t have one, really. Some would say that, “well, any system that involves humans is going to be imperfect.” Yes, of course. But we’re not really talking about imperfections or honest mistakes here, we’re talking about randomly making people homeless or not despite a clear, widely-known, openly-acknowledged pattern of fraud by these banks.
I actually do have kind of a solution, not that I think it will be implemented—or even that it should be implemented. Just an idea. Perhaps cases should be presented to judges as the fact pattern only, without any identifying details of the parties or their representatives (or lack thereof), just as in law school: A alleges that B defaulted on a loan with a, b, and c evidence, while B alleges that A committed fraud with x, y, and z evidence. The judge doesn’t know which bank or servicer is involved and doesn’t know whether the homeowner is black or white, rich or poor, skinny or fat. Nothing else but the facts of the case. Like, nothing else. Maybe that would help. Or not.
But we gotta do better than random…