Perhaps if the strict constitutionalist should take a close look at our Judicial system of case law, the system would be unconstitutional on the face. Under the constitution, the legislative branch of government is the lawmaking body of government. The function of the Judicial system is to adjudicate and apply the laws made by the lawmaking bodies of the nation. Yet, new case law, the foundation of the judicial system, is being born DAILY through the ruling of judges. When a judge hands down a ruling and that ruling survives appeal with the next tier of lawyer-judges, that ruling then becomes law-case law! This happens so consistently that we finally become subject to case law rulings of lawyer-judges rather than laws made by the lawmaking bodies in the nation. Is the judicial system making law?

All to frequently, our lives become subject to the rules of the judicial system as case law is applied, rather than being subject to codified or statutory laws enacted by the lawmakers. Certainly the system may begin with enacted laws, but the variations through the application of case law by the lawyer-judges can change the ultimate meaning. Such a transformation of law is called "judicial discretion" by the judicial system, when in fact it is a redefinition of the laws. As you move through the system and particularly through the appellate system, one discovers that "judicial discretion" has a width and breadth of the Arizona Grand Canyon. Embark upon an appeal, and one will find "judicial discretion" by the trial judge is seldom disturbed and almost an untouchable.

Let's take a look at where this "case law" syndrome has taken us in society. The basic premise of the case law system is to present an example of a previously adjudicated litigation that survived appeal which bears a similarity to the instant case in litigation. This system is absolutely ludicrous in many instances in litigation. Lawyers and lawyer judges will actually challenge a complaint because there is no "case law" recorded in the state as a precedent! I once filed a complaint against a lawyer for "lawyer deceit and collusion". There was a state statute on the books describing the offense. The lawyer filed his answer and claimed there was no recorded case law and therefore there was no precedent for the complaint and it should be dismissed. Guess what? It was dismissed.

Case law illudes to the fact that no offense is unique or original, that there has to be some previous litigation that is similar. This concept of course tends to lead us away from the importance of codified or mandated law and toward modified law of a lawyer-judge back in recorded history, who in reality re-defined the codified law to his own personal opinion or concept in many instances.

The other danger in a case law system is that we are constantly making comparisons in civil or criminal proceedings or trials which have absolutely no similarity or relevance. The contemporary example of that is the "Rodney King" case which began in 1991 in California. Then came the "Reginald Denny" offshoot trial triggered from the L.A. riot. Reginald Denny was an innocent party in the wrong place at the wrong time. He was dragged from his truck as he passed through the riot torn area of L.A. and was almost beaten to death by a group of hoodlums. Then what do we see? A media focus beginning that emerged comparing the Rodney King case to the Reginald Denny case. The two cases have absolutely no relevance or similarity except in the definition of "beating". In the Rodney King case law enforcement officers pursued a known criminal, supposedly using abusive force in that pursuit which came to be known as a "beating". In the Reginald Denny case a group of rioters criminally assaulted an innocent victim and almost beat him to death. But in a case law system lawyers are constantly looking for similarities and it is not difficult to "sell" the media on the idea of comparison. If one wants to play this out to a ludicrous end, should any of those who criminally assaulted Reginald Denny be found innocent, then undoubtedly the Feds should come in and reopen the case because that is what happened in the Rodney King case.

Much of the European and Latin American legal systems rely upon statutes and codes or what is called codified law. The American judicial system relies almost totally upon the law of precedent or case law. America has struggled and still is struggling under the case law system. Much of that struggle has come from people who had to gain political, religious and civil rights under a case law system where there was no precedent. While racial inequalities are being overcome in the case law system, women, children and the elderly still have a mountain to climb in overcoming inequalities in law. And how about the growing ranks of non-lawyer pro se litigants who are the focus of blatant constitutional discrimination by even the courts-but no case law-no precedent! Legislation is frequently required to mandate equal protection through new legal statutes.

Perhaps the first and most persuasive argument for codified law is the badly needed legal reform of a lawyer based judicial system. A case law system promotes business opportunity for lawyers. The case law system becomes more deeply mired each passing day with legal technicalities denying individual access to a system of equity and justice except through payment of a ransom to a lawyer to guide and move you through the system. This further entrenches lawyers as a ruling class in America, a danger which must be absolutely stopped. As the case law system becomes more technically complicated it continues to become a less efficient system and a more expensive system denying access except to the wealthy. With the majority of lower income Americans unable to afford the cost of justice, this is precisely where we are today! We have arrived there in large part because of a case law system of "unequal justice".

The second important argument for codified law is that the case law system has become a big joke for generations of criminals. Criminals know they can beat the case law system easily. Criminals have no reason to fear a case law system that can get them probation or a pleabargain. DWI's continue their slaughter of innocent victims because they have discovered a revolving door in the case law system and all they need is a lawyer to lead them through each trip to court. A bastion of lawyers stand ready and willing to make the trip for a fee. In the USA, with every three ticks of the clock criminals are committing a property crime. They have no fear of the case law system.

Codified law is black and white and does not have to rely upon the judicial wheel of fortune or misfortune by lawyers and lawyer-judges. If a criminals' fate is mandated and sealed according to a statute, he cannot play the wheel of fortune. Laws mandated by statute would deflate the crime statistics promptly and create a revolutionary opportunity for deficit reduction. Laws mandated by statute would also cut into the lawyer revenue and therein lies the battle for legal reform.

More to those inside the system than those outside the system, the American Judicial system has become an institution. As painful as it may be for those in the hierarchy to face the fact, as distasteful as it may sound, the judicial system is for the most part simply a lawyer culture in a huge business enterprise looking for business opportunity. Even more disdainful is the fact that the system has become a massive closed membership bureaucracy for lawyers and lawyer-judges with the masses picking up the tab for the closed membership, with the average John Doe no longer able to afford the price for equity and justice.

The average layman in America believes a court is a court, but the American Judicial System is not that simple. The court system has become a massive, sprawling closed membership bureaucracy for lawyers and lawyer-judges. Unfortunately it's litigants have become victims of the system at every turn.

After more than two hundred years we have permitted a system to become so glutted with mountains of case law, the system now, a dominant lawyer culture has arrived at a very enviable position. It literally takes the proverbial Philadelphia lawyer to get through the maze of legalese. This means of course we have allowed a system of equity and justice to evolve into a business making business for itself. The system has literally become a product for sale, on the terms of the system, that the masses must purchase for the sake of equity and justice, when in fact there is little to none-what a herculean fraud!

Our entire legal system came into existence in society for the basic premise that laws will help each of us to live more harmoniously together. It is the opinion of this writer there exists a greater danger today than ever before that the pinnacle of this system, the judicial system as a whole, may very well be the originator of much disharmony and hurt in our society.

The judicial system as is discussed on this site simply refers to that system set up in society to preside over and adjudicate the laws within its jurisdiction. This includes the courts, judges, lawyers and bureaucratic departments of government both elected and appointed to represent the people, the state or the accused. The laws over which this system presides today is a conglomerate of codified law, legislation, endless volumes of case law, constitutional law, or administratively adopted rules and regulations.

The judicial system has become a six headed snake that can bite its victims at will and without warning. When the snake is in the grass, we know to be aware of it. When the snake is caged in front of us we become complacent, never suspecting the door is ajar and the snake is poised ready to strike at any moment. So it is with the judicial system and it is baffling to the layman to say the least.

Every profession has its rotten apples and every profession has outstanding examples. The judicial system is no different in that respect. The obvious difference however is that the judicial system holds a power base in all our lives. Unfortunately the rotten apples in the barrel continue to rise to the top and remain as "officers of the court". Show me one judge that can stand great scrutiny for their judicial decisions based on codified law, constitutional law and common sense and I will show you ten that cannot stand the scrutiny.

In today's judicial system if the technicalities don't get you then you can count on politics to be the lurking snake. Certainly we like to think that some areas of society are above petty, mean politics. However, man is basically a political animal. We organize ourselves into groups with doctrine and political philosophy to our own liking. We draw a circle and let those people in who embrace our political philosophy and try to keep those people out who have other philosophies. We see it in government, business, schools, families, communities, churches and even religious doctrine. Why should we believe it does not exist in the judicial system. Indeed it does exist and any one of us can be the unsuspecting victim of politics in any given courtroom. The vast majority of the judges sitting on the bench are there because of politics in one form or another. One must remember-above the magistrate court level all judges are lawyers wearing a robe. They didn't grow into the system as judges, they grew into the system as lawyers with loyalties to and affiliation with other lawyers. They still have those same loyalties and affiliation which makes for political temptation. I have been involved in a million dollar business litigation with a jury trial in progress when the judge broke for lunch. Much to my amazement the visiting judge went to lunch at the country club with our adversary attorney. When we won by jury decision, the judge showed great disappointment and stated openly in court it was not the way he would have decided it! While his statement had no effect upon the jury, it created problems later on down the road when the plaintiff appealed and his lawyer quoted the judge. Fortunately for the system that judge is now retired but I am sure his politics while on the bench is still being felt somewhere. I am sure the mother of a little girl found murdered and buried in a shallow grave would also question that judges politics when he allowed a criminal out on a low bond. Days after being bonded out that criminal went on to abuse and murder the little girl while out on bond. Years later that murderer became the longest resident on death row in New Mexico, he was executed in 2001.  Could this low bond have been an example of a political favor from lawyer-judge to the lawyer representing the criminal?

In the absence of a major overhaul, reform or replacement of the judicial system, the layman has no other alternative but to learn the dangers of the system and how to avoid its pitfalls.

The bureaucratic and hierarchal design of the judicial system can cause an even greater trauma than that caused in court decisions handed down on technicalities. That trauma is time and expense to a plaintiff or defendant. This aspect can become absolutely overwhelming. The unsuspecting layman who enters into litigation thinking there will be a clear cut winner or loser has another thought coming. The chances of a clear cut winner or loser in any litigation of any import is almost non-existent. One may have a verdict rendered in his favor, but this is often just the beginning. If the litigation is of little import, it is possible that your lawyer fees will offset any monetary gain. If the litigation is of large import, an appeal to a higher court is almost certain. Then there are at least a dozen ways to postpone, continue, and stall any litigation to avoid a timely decision. Ultimately if there is a damage award, then there are the different chapters of the bankruptcy laws that can clog the system for years and even dismiss the judgement. It is entirely possible that an innocent victim in prolonged litigation can be forced into bankruptcy with no other choice! One must surely question such a system that was designed to protect Americans against wrongs.

A classic example of the win/lose syndrome in the judicial system is the Texaco-Pennzoil case. In 1984 Pennzoil makes an offer to buy Getty Oil. Texaco supposedly makes an illegally timed offer to buy all the Getty marbles and succeeds. Pennzoil sues Texaco for damages. Now begins the battle of the sharks! A Houston Texas State court awards Pennzoil a damage judgement in excess of $8 billion. At this point undoubtedly both plaintiff Pennzoil and defendant Texaco plan an appeal. Texaco gets a federal court to lower the appeal bond requirement from $11 billion to $1 billion. Pennzoil lawyers take the bond issue to the supreme court and the supreme court rules against Texaco and restores the $11 billion appeal bond requirement. One can easily see that short of any logic coming out of the judicial system, it has been a legal checker game making lawyers wealthy in the process. Pennzoil now has made it to the kings row and Texaco has no kings-or do they! Hold on the checker game is not over. Texaco has one more move-a real classic provided by the system itself. Texaco files for protection under chapter 11 of the federal bankruptcy law. Pennzoil is left there with the bare face of its trump king hanging out. The irony of it all is during the interim of this judicial pingpong game Texaco and Pennzoil had the opportunity to arbitrate the matter and settle it out of court. If media reports are correct that Pennzoil refused a sizeable offer in settlement, this case turned out to be a classic example where the winner loses! Because Texaco filed for protection under the Bankruptcy laws, a settlement was finally reached with Texaco paying Pennzoil $3 billion. Texaco then left the bankruptcy court and proceeded back into the business of marketing its oil products instead of underwriting the judicial system and the lawyers. At the foundation of the Texaco/Pennzoil litigation was a lawyer who plays for the "home run" named Joseph Jamail. Jamail, who represented Pennzoil received an estimated fee of $400 million. This was not the first or the last for Jamail. In the 1970's, this lawyer won a $6.8 million settlement from the Remington Arms Co., for his client who was injured in a hunting accident. At last count, Jamail's current home run litigative project was representing Northwest airlines in a humongous lawsuit against American airlines

There are thousands of such cases of not so great import, not media worthy, that slide through the courts of this land with the exact same results each year. It sometimes takes a Texaco - Pennzoil case to educate the layman about the many legal problems you may encounter in the judicial system and how to use the bankruptcy court to an advantage.

One of my favorite people in the annals of history was a lawyer named Abraham Lincoln. Lincoln who most of us know as president had his share of adversity. He gave this warning to lawyers. If at all possible avoid going to court and seek a compromise solution instead. This advice has of course fallen upon deaf ears as the system has evolved into a lawyer business opportunity over the years and an over abundance of lawyers are fighting over a big field of bones. Some have become much like social parasites roaming the earth for a situation of human misery-preferably one that is heavily insured.

As many of us know so well the time element involved in litigation simply because of the bureaucratic and hierarchical design of the judicial system is astronomical. Now we look at the fees of the lawyer and his perspective. If there is money in the case, most lawyers will drag it out. Even in cases where a lawyer of excellent character and skill is involved your case can become victim to a crowded court calendar with months passing until your case is calendared. Other items that will set the cost meter to running are, several required appearances in court for motion hearings, research of the issues, interviewing witnesses and in general double checking the facts and issues of the case going to trial. Finally the biggest time killer of all and a favorite tool of the lawyers will be the expensive prolonged "discovery process". After all of this, there is the actual trial preparation and presentation rehearsal. In the case of jury trials your lawyer will concern himself with how you or other witnesses will come across to the jury.

With these obstacles of litigation, your lawyer becomes a veritable dispenser of his indispensable commodity which is time. This is what you are buying and that time is the highest cost in the process of litigation. If you are financially well off then your lawyer will go to court with you as long as you remain that way. If you are unable to remain financially capable, few lawyers will ride the tide with you. In some special cases where a lawyer feels his or her financial gain may be greater they will take your tort case on a contingent fee basis. In most cases however they will require you to pay "costs" as they occur which can become very sizeable. Costs can encompass a lot of items.  Classic examples are the deposition of witnesses, etc., cost of an appeal, court transcripts, copies (sometime charged as high as $2 per copy page). The judicial system today is for those who are very well off financially or those at the poverty level who can obtain court appointed representation because of lack of income. Those in between stand a good chance of being driven to the poverty level if the litigation persists for an excessive period of time.

In a final review of the judicial system it must be pointed out that public violation of laws is now in epidemic proportions. In effect when John Q. public decides to violate the laws without an orderly change in laws, he is doing his part to break the system down. So just as we have basic rights and privileges to be protected by the system, so it is that we have basic responsibility to contribute to the orderly operation of the system in any way possible, including but not limited to serving on a jury when called. The most we can do is to observe the laws of record and accept that as our own personal duty in society. Also many of the unscrupulous lawyers who thrive today are able to do so because John Q. Publics' greed has been triggered and he sees a crack in the door to covet his neighbors property. If not his neighbors property, then the property of his or someone else's insurance carrier, or other deep pockets.

So what is the answer? Millions of Americans are learning how to take over their own legal affairs and even represent themselves in court. The Self Help Law Center Of America http://www.atps.com/shlc/repts.htm now offers hundreds of self help law products through their nationwide distribution program. While most lawyer-judges do everything possible to deny standing and status to the pro se litigant, at least the pro se litigant can avoid one of the snakes in the system and that is an unscrupulous lawyer looking for a business opportunity.