The Game of Law

Donald E. Watson

The Orange County Register - July 24, 1994

In the magical world of King Arthur, a false champion could not defeat a truthful one. Why do we insist on applying that mythology to the legal system?
To the dismay of many legal apologists, the Simpson case is exposing corruption at the roots of the justice system.

 Worried that the case is accelerating the public's scorn for the legal system, the media's lawyer-commentators are careful to remain silent on the real reason for the public's contempt:The law is no more than a game. And no matter how entertaining, a game cannot provide justice nased on truth concerning reality.

 The game of law is premised on the notion that a false champion cannot win a contest against a truthful one, a superstition rooted in the mists of mythology. In the legendary court of King Arthur, Merlin the magician guaranteed that jousting matches between champions infallibly determined truth and justice.

 Believing that a contest between champions can determine the truth still requires believing in magic. Absent real magic, the game of law relies on misdirection, illusion, and deception. To this end, wordplay has replaced swordplay for today's semantic warriors, for words are easily twisted into images that correspond equally well to fiction and reality.

 Like the game of Monopoly, which represents Atlantic City finance with false money, addresses, and buildings, the law depicts the real world with verbal fictions. The chief misrepresentation is that courts infallibly find facts--that is, that throwing dice in the legal game uniformly yields truths.

 If this premise were true, verdicts would hinge entirely on evidence--and never on the idiosyncrasies of judges, the proclivities of jurors, the skills of lawyers, or public opinion.

 The behavior of Simpson's lawyers shows this assertion is false: They are exploiting the media to manipulate public opinion, and they will work hard to avoid trusting their fate to the crapshoot of randomly selected judges and jurors.

 Exposing the law as a game of skill as well as chance, many lawyers boast of their game-playing. One famous lawyer claims to have never lost a case in his many years as prosecutor or defender. Yet, he would boast little if he had prosecuted only guilty defendants or defended only the truly innocent. Instead, his pride stems from his gamesmanship, from his out-playing his opponents.

 The game of law also deliberately excludes truth by subordinating reality to rules based on defendant's constitutional rights.

 Citing the Fourth Amendment protection against unreasonable searches and seizures, for example, Simpson's team of lawyers argued to suppress physical evidence gathered by police before they obtained a warrant. Avoiding the absurdity of arguing that the existence of a warrant could magically validate the objective evidence, the defense misdirected attention to subjective interpretations of the words unreasonable and exigent.

 This exquisite piece of gamesmanship illuminated a serious constitutional conflict. While vigorously defending the sanctity of the Fourth Amendment, Simpson's team is trampling the Fourteenth Amendment: "No State shall ... deny to any person within its jurisdiction the equal protection of the laws."

 Simpson's protection is decidedly unequal: Unlike the quality of justice received by most Americans, he can afford the highest level of play from his highly skilled, highly paid team.

 Without explicitly denying equal protection to citizens, stewards of the law have scrupulously maintained the loophole for unequal protection: Every state endorses the private practice of law.

 This extra-constitutional device protects game-players in their quest for professional success, but does not protect ordinary citizens. They are entitled to only as much protection as they can afford. In this way, self-serving lawyers guarantee their greatest corruption: Justice is for sale.

 Today's Americans value reality-testing over sophistry, and desperately want their justice system to reflect this value. Nevertheless, skilled layers persistently exploit technicalities of the game to secure undeserved acquittals and false convictions.

 Although such results may gratify members of the legal profession, they insult the sensibilities of everyone else.

 In the final analysis, the game of law cannot produce truth because its participants don't seek truth--or justice.

 Lawyers concentrate on winning to bolster their careers.

 Judges concentrate on assuring that the players follow the rules.

 And appellate courts disregard the "facts" found by trial courts to review only whether the rules were followed.

 Vigilantism is growing increasingly popular because our legal institutions have betrayed the trust of the people.

 If legal apologists want Americans to respect the institutions of the law, they must adopt humility and candor to admit that their game does not infallibly produce either truth or justice. This step may propel them toward instituting methods for seeking justice based on truth.