The legal system often doesn’t work the way you think it works

The legal system is rarely about having an incredibly nuanced understanding of case law or spending a lot of time carefully reading the law as written.  Rather, it’s about politics, strategy, judges being human beings, and the art of convincing others with good storytelling.  What this means is that somebody who knows enough about how the legal and judicial systems actually work can get away with doing things that they really shouldn’t be doing.

Part 1: Judges are human beings

Judges often do what they feel is right

In some cases, judges will come out and say that they want to ignore the law.  In the court case where Judge Rosemarie Aquilina oversaw Larry Nassar’s sexual abuse case, she states that she would have imposed cruel punishment on Larry Nassar if it were legal:

“Our Constitution does not allow for cruel and unusual punishment,” she said. “If it did, I have to say, I might allow what he did to all of these beautiful souls — these young women in their childhood — I would allow someone or many people to do to him what he did to others.”

Judges think about what the right judgement would be.  Then they figure out the law that would support the action that they want to take.  Many areas of law are subjective and afford the judge a great deal of discretion.  Or, there may be conflicting laws at work.  This gives judges plenty of room to maneuver and find some legal justification for what they want to do.  Some judges will sit behind a veil of professionalism so that they create less controversy and have less drama in their lives from unhappy litigants.  But they tend to do what they feel is right.

Things that stop judges from doing whatever they want

If the law is clearcut, then judges should not deviate from the law.  Usually this doesn’t happen unless a judge has extreme personal values and bends the law way too much.  Judges are occasionally sanctioned because some human beings are outliers in terms of how crazy they are.

More commonly, politics play a role in what judges are a little afraid of doing.  If lawmakers have recently changed the law and a judge brazenly ignores the politicians’ intent, then the politicians may try to get the judge fired for openly defying them.  Judges have to pay a small amount of attention to the desires of people who can have them fired.  In some countries, politics often play a much larger role as politicians have more control over the judicial system.

Judges can be lazy

Some parties in lawsuits tend to present a laundry list of allegations and a mountain of evidence.  Judges have limited amounts of time.  They often don’t read everything.  Because they have to budget their time, they may not actually spend time reading through everything carefully and reviewing ALL of the evidence.

A lawyer who wants to rack up billable hours will ignore this.  They will write long legal documents that are very boring to read.  The judge may start falling asleep halfway through the document.  If the storytelling is poor, the judge may lose the plot and have a hard time understanding what the story is supposed to be.  If the language is dense (especially with legal contracts), the document will take longer to read than normal.  A judge may not want to spend the brainpower needed to figure out what the heck is going on.  They may instead quickly read the document to get the gist of what is being said.

Judges need summaries of what a party in the lawsuit is arguing.  They need summaries of evidence presented.  If the evidence is complicated such as an expert witness talking about a highly technical subject, the judges don’t have the time to become an expert on that topic and often lack the sophistication to be able to spot bullshit.  A judge’s ability to comprehend a party’s arguments and complexity is something to pay attention to.

Judges will sometimes openly show their bias

When judges write something as part of the lawsuit (e.g. interim rulings), they may not always put time and effort into hiding their bias.  Or, if they simply don’t like what one party in a lawsuit is doing, they will openly tell them without any effort at hiding their preferences and biases.  Things that can cause judges to pick sides are:

  1. Grasping at loopholes and technicalities.  If one side resorts to very dubious legal tactics, a judge may call them out on it.
  2. One side is being deceptive and appears to be hiding the truth.
  3. One side acts unethically during the court proceedings, e.g. lying, brazenly withholding disclosure from the other side, etc.
  4. One side’s lawyer is really obnoxious or really annoying.  This can be really unfortunate for the lawyer’s client if they don’t understand how important a judge’s bias is.  Recall that judges often do what they feel is right.  An obnoxious lawyer’s client may be collateral damage.
  5. Guilty parties acting like total dicks and/or not showing remorse for their crimes.  Had Larry Nassar pretended to show remorse over his crimes, he would not have been sentenced so harshly.
  6. Rudeness.  On Youtube, there’s a video of a teenager (Penelope Soto) giving the judge attitude as well as the middle finger.  After she continues to give the judge attitude, the judge orders her back to the stand and raises her punishment.  Twice.

Judges are human beings who happen to have a lot of power over the parties in a lawsuit.  Don’t be dicks to them and apologize to them if your lawyer is being a dick.

Bias can telegraph the outcome of a case

If you want to know how a lawsuit might end, you can read what the judge has been writing (or saying in court).  If they telegraph their bias, it points towards how the case will end.  In the criminal case against Martin Shkreli, the judge quickly disliked Shkreli after he harassed Lauren Duca on Twitter and made a troll comment where he put a bounty on Hillary Clinton’s hair.  In a somewhat surprising move, the judge revoked Shkreli’s bail even though white collar criminals aren’t particularly dangerous while out on bail.  A CNBC reporter tracked down a lawyer who gave his opinion:

Another top New York lawyer, Gerald Lefcourt, earlier said that while Shkreli probably should be allowed to remain free on bail, “I think the judge is probably at wit’s end with respect to… his conduct.”

When it came to sentencing, Shkreli received a relatively harsh sentence versus his white collar peers (7 years in jail) because he didn’t listen to his lawyer (which his lawyer was candid about) and acted in a way that was inconsistent with showing remorse.

Snap judgements

Judges can unfortunately make incorrect snap judgements about the parties in a legal proceeding.  They may wrongly write off a witness or one side of the lawsuit as lacking credibility.  Because they see a lot of people lie in court, they will inevitably form ideas about behaviours that correlate with lying.  If both sides in a divorce battle openly fight each other in the courtroom, the judge may assume that both sides are willing to exaggerate the truth to create stories of abuse.  This can be devastating to children if abuse is actually occurring and the judge assumes that both sides are throwing around baseless accusations.

Or, judges may have preconceived notions about partners who abuse their spouse and children.  Most people in the world don’t get domestic violence.  Most domestic violence victims behave in ‘weird’ ways:

  1. They do not leave right away.  This is going to take some explaining, because healthy people just assume that everybody else is like them and that abuse victims should make obvious decisions.  The reason why domestic violence victims don’t leave is because their brain forms illogical connections between their actions and abuse, as if their actions somehow ’caused’ the abuse.  They often feel that they are somehow responsible for the abuse because they aren’t good enough.  Because of this, they desperately want to change their abuser so they stay in the relationship trying to change them.  They often return to the relationship several times after leaving.  Even after the abuser is gone, they may still want validation that they will never get.
  2. They may cover up the abuse because they are scared, they feel obligated to their abuser, or they would feel guilty for harming their abuser.  They may hide the abuse and/or lie to protect their abuser.
  3. Many abuse victims say that they still love their abuser.  Abuse victims often express love for their abuser because they hope that their abuser will magically change and give them the validation that they’ve been looking for.

Most judges won’t understand any of this.  So when a legitimate abuse victim finally tells their story, the judge may not believe them because their past actions seem “inconsistent” with abuse allegations that are coming out of nowhere.

Part 2: Working the system

Governments can be incompetent

Suppose that you have a parking ticket.  In some but not all jurisdictions, the various government organizations have not banded together to share information about license plates.  This means that fines cannot be applied to license plates that are from certain other states or provinces.  There is no system in place to collect on the fines.  So if you simply have the right license plate… there actually isn’t a mechanism in place to punish you.

More commonly, many but not all courts are overloaded with cases.  This means that there are significant delays in the legal process, opening up the possibility of a loophole defence: the defendant’s constitutional rights were violated because they did not get a fair trial.  It is unfair to defendants if the impending trial has been hanging over their head for a protracted period of time and causing them distress.  It is possible to work the system to induce delays so that their client’s constitutional rights would be violated and then used as a reason for the legal action to be dropped.

Taking advantage of the jury option

In certain types of cases, the defendant can choose whether to have a trial with only a judge or a trial with a jury.  Because juries and judges make decisions differently, the expected outcomes will be different.  The defendant’s lawyer should pick the more favorable option.

The defense team can try to stack the jury in the defendant’s favor.  While they aren’t supposed to do this, they often do it anyways.  There are various arguments that they can use as a pretext to exclude a particular juror from serving.  If the defense team believes that dumb and uneducated jurors would be advantageous, then they will bias the jury that way.  The entire process may be incredibly discriminatory because jury consultants (people who specialise in stacking juries) will make assumptions based on gender, sexual orientation, race, class, age, etc.  Jury consultants often hold themselves up as experts in racism, ageism, ableism, discrimination, stereotypes, etc.

Attrition

For parking tickets, some municipalities treat them as a revenue stream.  To increase revenues, the municipality can setup the courts to make it difficult for citizens to fight their parking ticket.  The court systems don’t let you apply for a court date online, don’t offer night court so that citizens have to take time off work, etc. etc.

Legal fees are expensive.  If it is beneficial to inflict high legal fees on the other party, there are various legal tricks that can be used to prolong the court case and to force the other side to rack up legal fees.

In criminal cases, there are various ways in which a lawyer can legally harass the key witness (especially in rape cases):

  • Have them testify in the same room as the person who hurt/raped them and in close proximity to their abuser.  (Courts may be improving in this aspect.)
  • Invade their privacy by using the discovery process to obtain their medical records and psychiatric history.
  • Hire a private investigator to stalk them.
  • Ask private and personal details about a rape victim’s sex life, kinky tastes in sex, etc.  They may slut shame the victim to attack their credibility and to argue that they ‘wanted’ the sex.  (Courts may be improving in this aspect.  Also, rape victims can get their own lawyer or victim advocate to curb these shenanigans.)

Part 3: Storytelling

Keep it simple

Judges and juries have difficulty understanding complex cases with conflicting facts.  If the jury has been stacked with less educated individuals, they may have difficulty grasping complex topics.  Good, simple storytelling helps because nobody likes to read boring legal documents, to try to understand really complicated things, or to spend too much brain power after they’ve been in the courtroom for hours.  Being understood makes a difference.

Appeal to emotions and values

A good lawyer will make subtle emotional appeals to the judge and/or jury’s sense of right and wrong.  Part of OJ Simpson’s defense strategy in his criminal case was to appeal to people’s feelings about racism.  The defense wanted to get across the story that Simpson was a black man being unfairly targeted by a racist institution (the police).  Technically lawyers are not supposed to prejudice proceedings by bringing in irrelevant arguments.  But then they find a pretext to do it anyways.

Credibility and plausibility

Some stories naturally lack plausibility.  The stories of most abuse victims are hard to comprehend: they don’t leave right away, they stay in their abusive situation far longer than they should, they sometimes protect their abuser with lies, and most of them still want their abuser to validate them so they express love for their abuser.  A good lawyer can coach them on how to make their story more credible and how to appear credible as a witness.

Part 4: Anticipating what others will do

Human memory is highly unreliable

If there are multiple witnesses to the same crime, the stories will be all over the place.  This is because human memory is unreliable and will get details wrong.  It gets more unreliable as time passes.

To preserve a witness’ credibility, it is a good idea for them to take notes soon after the events have transpired.  Then, if they need to report to the police, they can work with a lawyer to think about the best story to tell the police.  Then they can prepare a written statement so that their message is exact (as opposed to an oral interview and a cop playing broken telephone).  The lecture “Don’t Talk to the Police” on Youtube gets into why playing broken telephone is a bad idea.  The lecturer recommends that you do not talk to the police without talking to a lawyer first.

On the flip side of the coin, attacking the other party’s credibility is usually beneficial.  The strategy is the same except in reverse.  If there was a crime between two people, you would want the other side to talk to the police without a lawyer.  This will likely create many inconsistencies in their story to pick apart.

Many people will tell small lies (or confess) to the police

Many cops will try to take advantage of people’s stupidity and ignorance to put them in jail.  In the lecture “Don’t Talk to the Police“, the cop who talks in the second half of the presentation discusses tactics that he uses to put people into jail.  He uses various questioning tactics to bait the suspect into talking when they shouldn’t (hint: don’t talk to the police without talking to a lawyer first), to get information from the suspect to use against them, etc.  If a criminal has committed a crime but you don’t have any good evidence, you may want to report it to the police.  The police may be able to extract a confession or other evidence from the suspect.

Some witnesses are likely to lie

Because lying can often be predicted, it can be useful to incorporate a witness’ expected paths of action into a legal strategy.  Suppose that you are fighting a parking ticket.  The parking enforcement officers regularly pretend to have photographic memories because they want to see evaders get punished.  In reality, they never remember the specific details of a ticket because (A) they ticket so many cars and (B) they usually testify months after the fact.  (However, their memory of street layouts will be excellent because it’s their job.)  So if they get the make of a car wrong on the ticket, they will likely pretend that they can “remember” what the make of the car was.  They will be overly confident about their memory and this will hurt the prosecutor’s case when you present evidence about the actual make of your car.  This is a gimmicky loophole that exists if the parking officer happens to make a mistake in their notes/ticket.

Cops often don’t show up to trials for minor moving violations

While cops do hand out tickets for speeding and traffic infractions, they’d rather catch real criminals.  They may not want to sit in court and testify about how somebody was driving 15 over the limit.  A risky strategy is to apply for a court date and hope that the cop doesn’t show up.  A better strategy would be to prepare a backup strategy beforehand in case the cop does show up, although I won’t get into that here.

Some litigants will shoot themselves in the foot

While rich litigants have the money to hire great lawyers, they have issues that prevent them from mounting a good legal defense/offense.  They ignore their lawyer’s advice (e.g. Martin Shkreli’s lawyer has publicly lamented his client’s behavior) or they push for questionable legal strategies.

Part 5: Pseudoscience

Unfortunately, judges can be swayed by seemingly scientific concepts and pseudoscience.

  • Forensic “science”:  A lot of it is unproven quackery.  DNA evidence is often unreliable.  Insurance companies love fire analysis because they can “prove” that a fire was caused by arson and therefore the insurance company doesn’t have to pay.
  • Polygraph / lie detector tests:  These are unreliable.  On top of that, you can simply search Google and learn how to fool these tests.
  • Psychiatry and the Diagnostic and Statistical Manual:  After finding a copy of the DSM, you can learn how to fool psychiatrists into giving you the diagnosis that you are looking for.  There are even scientific papers on the topic of patients fooling psychiatrists into giving a PTSD or schizophrenia diagnosis.  For schizophrenia, read up on the Rosenhan experiment.

Many judges believe this bullshit so there are loopholes in some not-so-obvious places.

Part 6: Good lawyers versus bad lawyers

Signs of a skilled and effective lawyer:

  • An arsenal of legal tricks: jurisdiction shopping, tricks to intentionally delay a case, ways to hide evidence from discovery, coaching witnesses to be more credible when they testify, etc. etc.  They may use their creativity in making your story more credible, finding ways of spinning stories into their client’s favour, etc. etc.
  • Knowledge.  They understand how the courts actually work, how the judges usually rule, how witnesses often behave, how juries behave (if juries may be involved), what the other party’s legal strategy will likely be, etc.  They are familiar with unusual strategies such as delaying a case so that they can argue that their client did not get a fair trial.
  • Willingness to be ruthless.  They are willing to use questionable but effective legal strategies.  Note: judges do not like lawyers who come off as unethical and they may call out dubious legal strategies.  A good lawyer would be subtle about their nefariousness.  They will simultaneously take every step possible to delay a case (e.g. request extensive disclosure even though it won’t be relevant) while also taking actions to make it seem like they are not intentionally creating delays (e.g. asking for the earliest court date possible).
  • Good storytelling.  They can tell stories to convince a judge that their narrative is credible and makes sense.  They can break down complicated arguments and concepts into simpler elements.

Signs of a lawyer that is bad for you:

  • Disagreeable personality.  Somebody who does not come off as persuasive or likeable may hurt your chances in court.  You should probably avoid lawyers who come off as slimy or unethical because you don’t want the judge to hate your lawyer.
  • They rack up legal bills.  They find excuses to rack up billable hours in a way that doesn’t serve your interests.  For example, a divorcing parent may spend vast sums of money trying to protect their children against their abusive ex yet see very little results for the money spent.

If you have a parking ticket or minor moving violation (traffic ticket), you probably should not hire a professional ticket fighter or a lawyer.  Simply go to court and plead guilty so that your fine will be reduced dramatically.  Ticket fighters take advantage of the consumer’s ignorance because most people don’t know that they can simply get their fine reduced themselves by going to court and pleading guilty.  If you can’t take time off work to appear in court, you can have a friend or relative (or ticket fighter) appear on your behalf.  (Note: ticket fighters often aren’t licensed to practice as lawyers or attorneys.)  While the demerit points on a moving violation may have large financial consequences for you, ticket fighters don’t fight them because they don’t actually fight tickets.  They simply strike a deal with the prosecutor that you can do on your own anyways.

In criminal defense cases, there are some truly talented lawyers who can help guilty rich people evade justice.  Because rich people have money, they can hire excellent help to work the system for them.  That’s just the way it is.  At the same time, if a rich person has wronged you, you may be able to get a lot of money out of them by suing them.  Many civil lawyers will work on contingency so you don’t incur legal costs unless they win for you.  Again, that’s just the way it is.

Recap

The legal system is complex because it depends on people.  They are different ways in which you can convince a person that your argument is right.  There are different ways to game and exploit the system.  Sometimes you may get unlucky and run into people who want to see you lose (e.g. lying witnesses) or you run into a judge with a certain set of values.  There’s luck involved too.  I hope this post gives you an overview as to how being knowledgeable about a very specific area of law can give an advantage.  Many of the tricks aren’t obvious and would be difficult for you to figure out on your own, so it pays to do your research and to talk to a good lawyer.

 

 


Links

International law behaves quite differently.  Politics and lack of cooperation between countries play a leading role.  For Chinese stocks, the legal structures are extremely dubious.  But, because investment banks want to make a quick buck, many people conveniently ignore the elephant in the room.  See The China hustle lives on.

Appendix: How to fight a parking ticket

Apply for a court date.  If you actually get a court date, show up so you don’t automatically lose.  You can have a friend (your “agent”) show up instead of you.  Say that you will plead guilty; you typically do not need to explain yourself and the judge has heard every crazy excuse anyways.  The judge (technically they may be a ‘justice of the peace’) will dramatically reduce the fine, perhaps to a third of the original amount.  If you would like extended payment terms, just ask because judges give that away like candy.  If you bring proof that money is extremely tight for you (e.g. unemployed, homeless, etc.), then explain your situation to the judge and they may reduce the fine further.  There is a cost to fighting your ticket: you or your agent will need to spend time, transportation money, and parking costs to apply for a court date and to appear in court.

If the ticket is hundreds of dollars, then it might be worth fighting differently instead of pleading guilty.  However, you’ll need to do some research as to how your local systems work and effective legal strategies for your local system.  This information may be difficult to find.  If your court date was a year after the fact, you may be able to argue that your right to a fair trial was violated.

If you were given a parking ticket even though you paid for parking, go to the parking office with your ticket stub/receipt and your parking ticket.  They may be able to cancel your ticket immediately so that everybody can avoid a pointless court date where you will win anyways.

3 thoughts on “The legal system often doesn’t work the way you think it works

  1. The Legal System’s primary purpose is to maximize costs to all parties until one side “loses” its will (or $) to keep up the fight. Judges are involved purely for entertainment. Would anyone in the profession disagree?

    • Hi Jon, I’m sorry that you’ve had a very bad experience with the BCSC going after you (which I’ve written about on this blog for anyone else who reads this reply). Now obviously the legal system is necessary for our economy to work the way it works and to allow for people to invest in stocks. And certainly there are problems with lawyers milking their clients for money and other problems in the legal system (e.g. attrition being a legal strategy). But some of the problems that you faced has to do with politics. Politicians don’t want to admit that they appointed incompetent people to oversee the BCSC, which has allowed junior mining scams to run rampant. (Incompetent people at the BCSC have certain legal protections.) And perhaps part of the reason is because the politicians are being influenced by lobbying money and want a weak regulator that allows the financial sector to do things that it shouldn’t.

      I definitely think that if more people knew about what was going on, there would be a lot more interest in fixing obvious problems with the legal and justice systems. For example, rape victims almost never get the justice that they deserve (especially if they are male).

      • The BCSC is primarily funded by securities issuers, which unfortunately includes a lot of issuers that scam investors. BCSC thus has the conflicted task of protecting investors from the companies that provide its funding. It would make a lot more sense if investors directly funded BCSC and the Commission worked for those investors to protect their interests.

        For reference:
        “The BCSC does not receive taxpayer funding. Most of our revenue comes from local filing, registration, and application fees paid by market participants under the Securities Act. In most years, a small portion of our revenue is investment income and enforcement sanctions.”
        https://www.bcsc.bc.ca/uploadedFiles/About_Us/Publications/BCSC%20Service%20Plan%202019-2022.pdf

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