Time for another patented rant.
When talking to your clients, you always need to be careful with the words you choose, of course. But this rant is about a particular phrase that I think attorneys use too often when speaking to clients which leads to much confusion because as attorneys we understand the phrase differently from the clients. That phrase is “the justice system.”
When an attorney says, “We have to work within the justice system,” he or she is referring to the agglomerated government bodies, private attorneys, and NGOs that interact within the trial court, appellate courts, and administrative agencies to achieve resolutions to disputes — often by settlements that ostensibly are acceptable to all parties but which, in truth, often — strike that — always leave the client with a taste of the bile of defeat or surrender. That is because what the client hears when their attorney refers to “the justice system” is “I give you my most solemn assurance that there is a system that will absolutely provide you the justice you believe you so richly deserve and exactly as you choose to define that justice (even if I tell you that it cannot be achieved).”
You see, clients want “justice” on their own terms, and to the client “justice” means “all of my fondest hopes and desires provided to me right now and in addition for someone else to pick up the tab.” This is rarely — strike that — never what the legal system will be able to provide the client.
There is one very large exception to this generality, and that is the seasoned criminal defendant, who often understands the “justice system” to mean “getting my just deserts” except when by some fortuitous event (usually an inexperienced law enforcement officer or prosecutor making an unforced error) permits the malefactor to instead receive his “just desserts” with whipped cream and a cherry on top. Indeed, these clients often seem to understand the “system” better than many attorneys.
As attorneys, we need to school our clients on the difference between abstract justice — something to which the moral arc of the universe purportedly bends at length — and what the law will permit them to obtain — which is often far less than they desire and often not at all what they want to receive. The first step toward doing this is to ban the phrase “justice system” from our client-directed vocabulary. Now matter how hard we try, we are not going to get clients to accept that a system that purports to deliver “justice” cannot simply provide the result desired without all this pesky adherence to procedure and requirements for such seemingly irrelevant things as evidence and legal justification.
We must remember that for the overwhelming majority of laypersons, judges are all-powerful beings who, if they so desired, could set all the wrongs of the world right with the stroke of a pen (and consequently are ogres of the most malevolent sort when they do not deliver the client’s conception of “justice”). Concepts such as due process, jurisdiction in its many forms, and the ultimate authority of the elected branches to enact and enforce the law are, if even vaguely remembered from a long ago civics lesson, so much irrelevancies to the power of the judge (not the “court” — for laypersons likewise do not see the institution, only the person in the robe).
So, if not a “justice system,” what do we call it? The “court system” is too narrow, for the system encompasses more than the courts, while the “legal system” is too vague — especially as the client is likely to assert that any result that does not deliver their idea of “justice” is, de facto, not consonant with the that which is legal.
I propose that “the system” or “the process” would perhaps be closer to the mark as the term to use with clients — “we must work within the system, and let the process work out.” Of course, this type of weasel words is not likely to inspire confidence in the potential client — but it would at least stifle the expectation that “justice” will be achieved.
End of rant.