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Judicial jeopardy: where business collides with the courts.

Judicial Jeopardy: Where Business Collides with the Courts.

Richard Neely. Addison-Wesley, $19.95. Judge Richard Neely confirms the corporate general counsel's worst nightmare: in courtrooms across the land, bullies in black robes eagerly slam big business with costly suits brought by whining consumers and malingering workers. The law provides little protection because judges consider statutes and precedents old hat. Political and economic hunches--or worse, petty prejudices--shape important decisions. Afterwards, pointy-headed law clerks fresh from Ivy League campuses are unleashed to "cut and paste the appropriate legal principles necessary to justify the result.'

Neely, a respected member of the West Virginia Supreme Court, calls Judicial Jeopardy a "practical strategy' for how business can fight back. He must have envisioned a battle plan for readers with little interest in balance or complicated analysis. The judge doesn't say the boys in the boardroom are always right, but in this book anyone who opposes them looks dishonest or villainous. Neely's one-sided anecdotes about corporate litigants would make a Chamber of Commerce propagandist blush.

The judge never explains why he addresses his subject in such a narrow-minded fashion. He also fails to acknowledge that he only covers problems involving business being attacked by hostile outsiders, such as personal injury plaintiffs. He ignores the huge majority of commercial litigation in which companies use the courts to clobber each other.

Neely doesn't even deliver on his basic promise. Most of the book's tips range from vague to obvious. One example: "To a practicing businessperson the crucial point is that individual judges and their young clerks have a tremendous effect on the decisions they write.' What an executive would do with this kind of revelation is a mystery.

Other advice gets clouded by contradiction. Neely repeatedly urges business to save money and prevent adverse precedents by settling cases out of court. But he recommends "fighting frivolous litigation as long and as hard as possible.' He doesn't so much as hint as to when to surrender and when to circle the wagons.

By scrupulously avoiding ethical questions, Neely overlooks the possibility that by doing good, business might also do well. On the issue of settling rather than slugging it out in the courts, one criterion a product liability defendant might use is whether the company had hurt innocent people. The A.H. Robins Co., for example, probably could have limited its own damage from the Dalkon Shield contraceptive fiasco if it had responded responsibly to early complaints from consumers, compensated women who had suffered, and eliminated the product.

Unflattering generalizations about judicial character litter the book. Neely describes an intellectually undistinguished profession which cynically disguises political choices as legal principle. Despite the mounds of unsupported hype, however, the foundation for a cogent argument actually begins to emerge here.

In the 1930s, academic critics known as legal realists first unmasked the fiction that judges could scientifically deduce the law and passively apply it. The realist description of judges' ability to manipulate statute and precedent to serve personal agendas still makes many people uncomfortable. But realism has seeped deep into the legal establishment. Lawyers routinely ask courts to ignore legal technicalities in favor of social concerns; judges, meanwhile, manufacture elaborate theories of good "public policy' to justify decisions.

Neely urges business to capitalize on the realist insight by feeding judges more sophisticated policy arguments: forget the abstract rigamarole, just explain how many jobs will be lost and families uprooted if the company loses money and closes plants. Neely doesn't develop the idea much further than that, but he alludes to the creation of a more candid legal vocabulary for dealing with economic issues. Others, however, have written with more clarity about this transformation and how its early stages have already benefited litigants who learn the new language.

Unfortunately, in his zeal to prove that traditional legal arguments frequently don't satisfy courts, Neely equates convincing briefs with extra-legal junkets. He recommends that companies lobby judges exactly as they do legislators: invite them to pseudo-academic conferences which appear even-handed but inevitably lead to the conclusions the corporate sponsors desire. Neely goes to the ludicrous extreme of plugging a favorite resort for such shmoozing. Judges can bring their spouses and enjoy "two lavish meals a day' for only $20 extra.

Every person may have his price, but do judges really come as cheaply as Neely implies? Most sophisticated executives would probably think not and will look elsewhere for advice on how to maneuver more effectively in court.
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Article Details
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Author:Barrett, Paul M.
Publication:Washington Monthly
Article Type:Book Review
Date:Nov 1, 1986
Words:743
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