From the Desk of Ellen J. Shemitz

Many of the immediate questions before us, as I write this column, will be long resolved by the time this publication reaches your desk, among them: the impact of the $700 billion (plus) bailout, the identity of the next president of the United States, and whether the phrase “you betcha” becomes a regular call to action from the White House or the punch line of a political joke. But there is another matter, one of critical importance to the health of our nation, which will remain unsettled: that is, the impact of the ongoing assault upon the rule of law and the Constitutional balance of powers. 

Over the past decade, calls for deregulation and executive privilege have undermined the legal framework of our government. On September 27, 2008, the New York Times published these thoughts from Ben Stein, a lawyer and frequent contributor to the op ed pages: “[B]y far the most terrifying item I read in my morning paper last week was this: Mr. Paulson demanded that Congress forbid judicial review of his decisions on use of the money in the mortgage bailout. This would amount to an abrogation of the Constitution. Not only would his decisions be sacrosanct and above the law, but so would the actions of his pals in the banking world in connection with this bailout. . . . This may be the most dangerous attack on the law in my lifetime....”

This attack on the rule of law is hardly without precedent; one need look no further than the years leading to the Great Depression. In his first inaugural address in 1933, President Franklin D. Roosevelt emphasized the importance of regulation and accountability to guard against “the evils” of the old order. In his second inaugural address, FDR stated: “In … these last four years, we have made the exercise of all power more democratic; for we have begun to bring private autocratic powers into their proper subordination to the public's government. The legend that they were invincible--above and beyond the processes of a democracy--has been shattered. They have been challenged and beaten....”  
Back to 2008. The question we face is one of leadership. Just who is going to lead the call for return to the rule of law, for the “proper subordination” of private interests to the democratic process? Or put another way, who better than trial lawyers, plaintiff attorneys committed to protecting the rights of the individual, to pull back the curtain and expose the assault on our Constitution for what it is? After all, it is the very promotion of the rule of law and the protection of individual rights of redress that lie at the heart of the NHAJ mission.

In September of this year, the NHAJ Board of Governors held its annual Retreat, a time to take a step back and assess the long term health and direction of the organization.   The retreat began with one essential question: what does NHAJ stand for? Expecting quick consensus among 24 highly articulate and opinionated trial lawyers usually requires a suspension of disbelief, but in this case the attorneys in the room spoke with one voice: the mission of the NHAJ is to protect people who have been harmed by the misconduct of others by seeking redress in the civil justice system. Put another way, the mission of the NHAJ is to preserve the rights and liberties of all people through adherence to the rule of law. The Board went on to adopt a three year plan to advance our mission by: (1) developing and maintaining the highest standards of professional practice; (2) promoting public policies that preserve access to the courts; and (3) building and maintaining NHAJ capacity and sustainability.   It is the second goal that speaks most directly to fundamental challenge to the rule of law. To support our mission, NHAJ must take an active role in the public policy arena, with a stronger legislative presence and increased public outreach and education.

Linking our three year plan to the critical economic and legal questions of the day may seem a stretch, but I believe it is legitimate. We have the ability and the duty to raise our voices in support of the rule of law, accountability and transparency. We have the ability and the duty to combat efforts to undermine access to the courts. We have the ability and the duty to call local and national leaders on their votes when they run afoul of our fundamental principles.

In the last issue of the Trial Bar News, I bemoaned the negative connotations some attach to the phrase “trial lawyer.”  The campaign to tarnish the image of consumer advocate attorneys has been carefully crafted and relentlessly pushed. Just take a look at the most recent report and press releases of the US Chamber of Commerce, the DC based business lobbying effort which received $23 million from AIG to support its campaign to eliminate corporate accountability. In lobbying for financial bailout without the right of judicial review, the Chamber blamed the current economic debacle on the twin evils of over-regulation and trial lawyers, insisting that efforts to prevent investor fraud are nothing but misguided efforts of lawyers “foolishly attempting to drive all risk from our markets.”
As the true misconduct of AIG and others is held up for public inspection, trial attorneys working to protect individuals wronged by the misconduct of others, can rightfully reclaim the high moral ground and draw attention to our core principles and values of fairness, accountability, transparency and the rule of law.  For it is the rule of law and trial attorneys' invocation of such law to target misfeasance that protects all of us from what FDR so powerfully termed “private autocratic powers.”

Click Here for Past Messages from the E.D.