From: Greg Burch (gregburch@gregburch.net)
Date: Sun Jun 24 2001 - 07:48:25 MDT
"Anne Marie Tobias" <atobias@interwoven.com> wrote, on Friday, June 22, 2001
9:01 PM:
> So, I am appalled when a person takes on business, and the action
> occurs (I'm offended enough at the thought), that it's OK to kill
> people if it helps the bottom line... Of course to balance that, I am
> more than appalled when a public servant, a person who has on
> him/her a sacerd trust to serve the people, feels that their personal
> interest takes precedent over the common good. For those people
> I believe a firing squad and the title traitor is best suited.
>
> That said, I picked this up of of mempool today... read it, please...
>
> http://www.guerrillanews.com/cocakarma/
>
> Seems that Coca Cola has a $4 billion lawsuit against it, for which
> it hasn't got a moral leg to stand on... so it bought a Chicago judge,
> flaunted it's disdain for the constitution... and has made sure that the
> 7th district court of appeals has broken virtually every constitutional
> accountablity possible. This is precisely what I mean when I talk
> about bad business and bad government. By the way, it is most
> often impossible to separate the two because when one stinks it's
> usually in the presence of the stench of the other. This must drive the
> Gov. Bad, Business Good guys a little crazy... but I'm sure they'll
> figure some rational for this. Kind of reminds me of the 'Matrix'...
> when Morpheus told us, we'd find out just how far down the rabbit
> hole went, he forgot to mention, it was connected to endless sewers.
>
> Read the story, it's really fascinating...
I did. Based on this one piece of journalism, I'm afraid I can't come to
any firm conclusions about the case that is discussed. Unfortunately,
although the writer (Stephen Marshall) does point out a number of times that
he was somewhat mystified by the thicket of legal jargon he encountered, he
hasn't done a good job of identifying the places in which his confusion
makes the story less than the blockbuster its tone would indicate. Many of
the things he identifies as nefarious are simply a view of the procedural
complexities unbalanced by a full understanding of the entire "life-cycle"
of a lawsuit. For instance, Marshall makes much of the fact that Coca Cola
went through the entirety of seeking dismissal of the plaintiff's claims
without at the same time seeking a ruling on their counterclaim, and then
dismissed their counterclaim voluntarily later. There is nothing out of the
ordinary about this and there was no denial of due process in this single
fact: The default rule (and it's a good one) is that a claimant (the
position Coca Cola was in after dismissal of the plaintiff's original
claims) always has the right to voluntarily dismiss their claims.
Other examples of the use of a paranoid tone in the article lend it more
weight than it deserves on its own. For instance, the mysterious
disappearance of part of the court's file is absolutely no big deal. It
happens all the time, because the court system (even the federal court
system, which is the best funded and best managed one in the U.S.) is
notoriously starved for resources. There are tens of thousands of "active"
files in the federal system in Chicago and perhaps over a million in total,
counting ones that have been archived but that must be indexed. The
information technology used by the courts is perhaps the least advanced of
any in a major sector of our social system. That a part of this file
couldn't be located is not itself an indication of anything suspicious at
all. And note that the missing parts of the file surfaced not long after
their absence was noted by one of the lawyers. This is a VERY common
occurrence, I can assure you.
The number of innacuracies in the article arising from the author's lack of
familiarity with important legal concepts is important. There is much more
of tone and less of substance than meets the eye.
> One of the more arrogant members of the 7th District court of appeals
> while in an argument with a professor of constitutional law, publicly
> said; * "Why do you teach you student those fairy tales... I've much
> more important issues to base my decisions on that the constitution
> and due process." Clearly a candidate for the Texas "He just needed
> killing" defense.
As a Texan, I'll elect to pass on that last bit, but I'll note that the
judge in question, Richard Posner, may well be one of the most intelligent
and erudite jurists on any bench anywhere. He also happens to be one of the
most libertarian jurists in the US (and therefore the world). Although I
haven't read the article that is quoted SECOND HAND (i.e. Marshall hasn't
read it either), it wouldn't surprise me at all that Posner's remarks were
intended to be CRITICAL of the cavalier attitude toward due process he was
discussing.
With all that said, even through the EXTREMELY distorted lens of the article
to which you have pointed, the case does appear to be one in which there has
been a miscarriage of justice. Part of the problem is, without a doubt, the
plaintiff's decision to prosecute his case pro se (i.e. without a lawyer)
during the key early stages of its proceedings. The recent mess that Keith
Hhenson got himself into is another example of the bad record that can be
made in important cases -- ESPECIALLY one in which a party is facing a
hostile judge -- when a party "goes naked" in court. Note that the
plaintiff WAS able to find competent counsel and, despite the article's
assertion to the contrary, there really were no major discoveries or
developments during its pro se phase that changed its merits. In other
words, the plaintiff could have gotten a good lawyer from the beginning.
Beyond that, the REAL story would be very interesting and instructive,
although likely so densely technical that few lay readers would be willing
to wade through the details. There is nothing in the world worse than a bad
judge -- take my word for it -- and few things more valuable than a good
judge. I don't know anything about the judiciary in Illinois beyond the
barest facts of the "Greylord" cases Marshall mentions, but I have had to
deal with "rogue judges" before and even endemic corruption in specific
geographic legal cultures. The fact is, though, that justice ultimately can
be done in almost every case because of the multiple layers of the judicial
system and the checks and balances built into that system. It takes real
courage to stay the course in such situations and many parties don't have
that courage; instead, they pay the toll exacted by some troll who has
temporarily seized the reins of justice and move on with their lives. To
the extent that Mr. Koboly and his lawyer are the exceptional ones who have
what it takes to stay the course, they do a great service to the rest of us.
Greg Burch
www.gregburch.net
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