Occupy Wall Street
vs.
The American Ruling Class

The role of a trial lawyer in America is… ? Hold that thought for a moment. When I was 14 years old, my eighth grade educated, Irish mother gave me a very practical lesson in life: “Money rules the world.” Since we had none, I saw her comment as unsettling then… in 1957, as well as a self defeating prediction for my future. Instantly, I knew that, in order to have some control over my destiny, I would have to prove her wrong. So, I replied that “truth, justice and hard work” ruled the world. Nine years later in 1966, I started the University of Detroit Law School to prove my point. Now 21 years after my mother’s death and 42 years after I graduated from law school, I hang my head as I lament… my mother was right.

American Ruling Class

Make no mistake about it. There is a “ruling class” in America. It’s comprised of two powerful groups who have a monopoly on power and wealth… American capitalists and elected politicians. Absent an occasional uprising of courage (think women suffragettes, Rosa Parks, “freedom riders,” Vietnam War protestors, etc.), the rest of us are merely hostages whose lives and financial security hang in the balance the “ruling class” creates. “We the People” are usually helpless to challenge the concentration of power in the “ruling class.” Even our right to vote seems illusory as we vote in a new group of politicians with different faces and different promises, but with the “same-o, same-o,” “ruling class” mentality… “don’t take a courageous stand, and do the right thing, or you may not get reelected.” As the great writer, Leon Uris, noted in his prologue to Trinity: “There is no past; there is no future; there is only history repeating itself over and over, now.” And, so it seems… as I reflect on America’s ruling class and their defining role in the Great Depression of 2008.

The American capitalist segment of the “ruling class” (think insurance industry, corporate America, investment bankers, money managers and Wall Street – not small businesses) have but a single focus… the financial bottom line. Their purpose is to take in and keep as much of other peoples’ money as the law will (or will not) allow. “Greed” is in their DNA. In fact, all of us bear the evolutionary imprint of greed in our DNA. Before the use of currency, the evolutionary instinct of survival created “hoarding” (the more food and goods accumulated, the better the chance of survival), and “gluttony” (the more food stuffed in excess of actual need, the better the chance to survive the uncertain period until the next meal). The evolutionary remnants of caveman “hoarding,” “gluttony” and “greed” live within us today as vestiges of our survival instinct.

Make no mistake about it. The evolutionary imprint of instinctual greed drives the American capitalist segment of the ruling class. They are in it for their own excessive need for financial profit… gross profit, adjusted gross profit, net profit, profit, profit and more profit. And, even if they have enough money for five or ten lifetimes, their own sense of importance, self image and uncontrolled “ego” compels them to strive for still more and more as they repeat their mantra: “money is power and power is money.” For the American Capitalists, the goal is money, money and more money, and the power money brings. The American capitalists have no interest in the “common good”… although, coincidentally, during good times capitalistic ventures do provide (as the economists in the Reagan administration would say) “trickle down” benefits which, in 2011, appear to be nothing more than “minimum wage” trickle down (without benefits) for those lucky enough to find a job, any job.

On the other hand, the focus of the elected politicians segment of the American “ruling class” is (or should be) squarely on the “common good.” Yet, the American capitalist segment of the “ruling class,” violating the prohibition “lead us not into temptation,” exploit the weakness of human nature by plying our elected politicians with money, power, favors and, most importantly, with the “tacit” understanding that, if you play ball with us and our “special interests” agenda, we won’t target you for defeat in the next election by contributing millions to your opponent’s campaign. As Tom Udall, Democratic Senator from New Mexico, told New Yorker magazine reporter, Larry Doyle, in 2010:

“People know in their hearts – they know this place is dominated by special interests. The overall bills are not nearly as bold because of the influence of money.” The power and influence of special interest money is so big that many of our elected politicians have left political office to become lobbyists, and get richer by funneling special interest money to their elected, politician friends and compatriots they left behind in the halls of government.
The obvious problem. The corruptive influence of money and favors from the “ruling class” capitalists passed on to our “ruling class” politicians bought “ruling class” capitalists what they paid for… a steady green light of “unregulated” capitalism – all contrary to the common good and the voice of “We the People.” And, how do the “ruling class” elected politicians respond? They rationalize their compromised integrity by telling “We the People” that “markets know best” and “what’s good for capitalism is good for America”… reminiscent of the “Greatest Generation’s” anecdote that: “what’s good for General Motors is good for America” (while, today, General Motors exits from bankruptcy hoping to survive and repay the billions the American taxpayers floated them in bailout funds).

The end result? During the first decade of the 21st century, the “ruling class” of America, with its corruptive and reckless brand of unregulated capitalism, destroyed our economy by creating a “housing bubble” of horribly inflated home values… the precursor to the Great Depression of 2008. The American “ruling class” also brought us “credit default swaps,” non-transparent insurance policies, that banks and mortgage companies used as a hedge against their own reckless, subprime loans that helped fuel America’s devastating “housing bubble”… the same “credit default swaps” that brought super insurer AIG (American International Group) to its knees along with the rest of us non-ruling class members of America.

Bet… The American Economy To Fail

Some of the smarter Wall Street money managers even devised a plan to win billions (not millions) by betting on the collapse of the American economy. These smarter-than-the-rest, handful of money managers developed computer models that enabled them to see the “housing bubble” on the horizon as well as its imminent collapse. They then purchased insurance policies known as “credit default swaps” for a relative pittance, and just waited for the collapse of the American economy. And, when the American economy collapsed a year or two later (as they predicted), these handful of money managers parlayed their bet against the American economy into billions (not millions) for each of them, and they rose to the ultimate position of power in a world where “money rules the world” while the rest of us non-ruling class Americans were left with the wreckage… the loss of our biggest assets: our homes and our future financial security.

Where is the criticism from the American “ruling class” for those few, opportunist Wall Streeters who used opaque and unregulated “credit default swaps” and made billions by correctly betting on the collapse of the American economy? Where is the criticism of our American Congress that stood by passively with their head in the sand doing nothing while their fellow “ruling class” members, the American capitalists, ran our economy (not theirs) into the ground? Where is the criticism for our Congress’ dismissive treatment and marginalizing of warning voices like President Clinton appointee Brooksley Born? While former Vice President Cheney’s daughter brands trial lawyers who dare to represent those “accused” (for emphasis, “accused”) of terrorism as un-American, where is her outrage (or her father Dick Cheney’s outrage) for those homegrown, economic terrorists who saw the meltdown of the American economy on the horizon, and then made billions betting on the American economy to fail when the “housing bubble” burst? The Answer: There is no outrage because the Wall Street brethren are the Cheney family’s comrades-in-arms in America’s “ruling class.”

Runaway Capitalism… Subverting Common Good

Thanks to the “green light” of unregulated capitalism that our “ruling class” capitalists bought (and paid for) from our “ruling class” politicians, and thanks to the “housing bubble” that our “ruling class” capitalists drove through that unregulated green light, the rest of us non ruling class Americans plunged into the “GreatDepression” of 2008… the harshest of downturns which included: the eroding of the property tax base which virtually bankrupted state and local governments (as well as our children’s educational institutions), which included the insolvency of institutional pension plans that were supposed to protect retiring Americans, which included the substantial diminishing of our IRA accounts and savings accounts that were earmarked to sustain us in our later years of life, and which included the accumulation of toxic assets on the balance sheets of the banking and mortgage capitalists… who then shut down our credit markets, the very life blood of capitalism – despite the 750 billion dollars President George W. Bush set aside in TARP funds (Troubled Asset Relief Program) to bail out the “too big to fail” banking and Wall Street financial institutions.

The “Great Depression of 2008” also brought us bankruptcies of everything from “Mom and Pop” operations to General Motors, Chrysler, their suppliers and numerous other “trickle down” insolvencies, as well as double digit unemployment. Now, middle-class, American kitchen tables are filled with anger, anxiety, depression and heartache where there used to be happiness, joy, story telling and expressions of love and compassion. Now, us non-ruling class Americans sadly salute the final benediction and death knell of our American working class – America’s strength… its beloved middle class. Hyperbole? Poetic license? I wish it were so.

Ironically, the total losses to the American economy from bank robbers (such as Jessie James, John Dillinger, a working man’s hero of the last Great Depression, “Pretty Boy” Floyd “the outlaw,” “Baby Face” Nelson, Willie Sutton… “Your Honor, I rob ‘banks’ because that’s where the money is,” and the rest)… never put a dent in our economic engine of capitalism, but the American “ruling class” capitalists, riding our politicians’ wave of unregulated – “laissez-faire” capitalism and greed,

brought our economic engine of capitalism to its knees, crashing right down on top of the lives of our suffering masses. And, all that unbridled theft of American resources and all that financial ruin without accountability. The financial guru of unregulated capitalism, Alan Greenspan, apologized to a complicit American Congress because his ideological model of unregulated capitalism, “Markets Know Best” (even unregulated, “fraudulent” markets), was recklessly wrong. But, there was no accountability… no accountability, but lots of rewards for the misdeeds of the “ruling class” as we non-ruling class Americans were forced to bail out the American capitalists with billions of dollars in taxpayer money just to save our economy because, after all, the American capitalists were “too big to fail.” And, now, we non-ruling class Americans face the distinct possibility of future financial failure as we try to figure out how to bail out… the “bail out” of crescendoing debt.

Isn’t it ironic and isn’t it self serving. The “ruling class” are “dyed-in-the-wool” capitalists when it comes to putting their ungodly profits in their own pockets, but, after they crashed the American economy, those same capitalists hypocritically became socialists asking the government to bail them out. As Public Television’s well respected Bill Moyers repeated: “They capitalized their profits and socialized their losses.” And, when the question of “Why”??? the economy crashed with the “Great Depression of 2008” is asked and that question shines the light of inquiry directly on the misdeeds of the “ruling class”… the “ruling class” tries to divert the hurt, anger and betrayal of the American psyche by directing the raw emotions of us non-ruling class members toward one of their own “ruling class” comrades… scapegoat and “super thief” Bernie Madoff.

Rivaling the Wall Street gang’s subversion of the common good, we have the capitalists of the American health insurance industry who double our health insurance premiums every three to four years while skimming ungodly bonuses off the top of our health insurance premium dollars. Then, without a hint of shame, the health insurance industry justifies their theft of our insurance premium dollars by pointing to the Dow Jones increase in value of their insurance company stock… an increase in stock value they deviously contrived by bragging to Wall Street how little they spent of our insurance premium dollars on our health care needs. Oh, okay, I feel much better now that I know the handsome bonuses for the insurance executives are generated from not spending our insurance premium dollars on our health care needs. And, I guess, I am also comforted by the fact that when it comes to choosing between health care benefits for policy holders or their own bonuses… the insurance executives will do the right thing.

For a glaring example of how the power of special interest money subdues the common good, we need go no further than the State of Michigan where restaurant

and bar industry lobbyists thwarted “smoke-free,” safe environments for Michigan residents for years on the Republican’s specious “all or nothing argument,” even though the citizens of New York, California and numerous other states had smoke- free environments for years and decades. And, on a related issue, the American “ruling class” continues to keep the commercial stream of cigarettes and highly addictive nicotine (and slow suffocating death and heart disease) flowing to the next generation of shortened lives while, at the same time, they level the full power criminal justice against anyone who dares violate “ruling class” America’s fundamental morality against smoking a non-addictive, marijuana cigarette. Let’s all have Martinis with our lobbyist friends after work and celebrate the triumph of special interest money over the common good, but God save the poor sucker who lights one up for his Martini equivalent or for relief from pain because law enforcement is dedicated to chase down that “public enemy number 1.”

Given the greed and the need for power encrypted on our DNA, given the weakness of human nature in the face of the corruptive influence of money and power, given the ever present lobbyist influence shifting the focus of our politicians away from the common good to special interests, given the coziness of the “one hand washes the other” mentality and the “IOU” relationships between American capitalists and the legislative and executive branches of government, and given what author, Ambrose Bierce, calls the “conducting of public affairs for private gain”… it is unrealistic to expect the executive or legislative branches of our government to keep their eye on the “common good.”

The end result? Monumental decisions and broad policy pronouncements affecting the financial security of non-ruling class Americans are made by a handful of self-perpetuating politicians while “under the influence of money” from lobbyists, special interest groups and power brokers who are totally detached from the common good… a recipe for disaster that brought us the repeal of The Glass- Steagall Act (that since the Great Depression of 1929 legally protected us non-ruling class bank depositors and our bank accounts from reckless investment banks); a recipe for disaster that brought us bundling of mortgages that were exempt from the protective regulation and scrutiny of the Security and Exchange Commission and the Commodity Futures Trading Commission; a recipe for disaster that hid the danger of an unregulated capitalism on the common good; a recipe for disaster that gave a green light to financial managers to skim multimillion dollar bonuses off the top of Americans’ hard-earned retirement accounts even though no value was added to those accounts and very little, if any, performance given; a recipe for disaster that gave the green light to insurance CEOs to skim multi-million dollar bonuses off the top of our health insurance premiums while, at the same time, those insurance companies fought tooth and nail to pay out as little of our insurance premium dollars as possible on our medical care; and a recipe for disaster that gave us the “Great Depression of 2008” which brought our economic engine of capitalism to its knees as our “ruling class” politicians, over and over, breached their fiduciary duty to tend to the common good of “We the People.” And, all this unregulated attack on the American economy and on America’s “non-ruling class” financial security while the investment bankers, brokerage houses, Wall Street, insurance industry and their lobbyists were making millions and millions of dollars in campaign contributions to our elected politicians to keep the green light of unregulated capitalism in the “on” position, and all this while the executive and legislative branch of the government turned their backs on warning signs and voices arguing for transparency in the complex, financial maneuverings of Wall Street, investment houses, bankers and the insurance industry.

“Ruling Class” Demagogues… and the Art of Distraction

And how does the American “ruling class” respond to the overwhelming and (still) ongoing financial ruin that they have wrought on America???… They simply try to cover their tracks and hide while deceptively pointing the finger of blame at innocent non-ruling class members. Now, three years after the Great Depression of 2008, the American “ruling class” cover their tracks by engaging in the centuries- old tactic of “distraction by demagoguery”… seeking to distract America’s attention away from Wall Street and the “ruling class” corruption that gave birth to the Great Depression of 2008. As we enter the year 2011, and, as our American city and State governments struggle with the loss of tax revenues and operating capital (brought on by the Great Depression of 2008 with its collapse of the economic twin towers of real estate values and employment), we are once again being distracted and manipulated by an American “ruling class” that shifts the focus of the “Great American Debate” away from themselves… through “distraction by demagoguery.”

“Distraction by demagoguery” is a Machiavellian, red herring tactic that the American “ruling class” has repetitively used throughout our history in order to control the content and the message of the “Great American Debate,” and shift the focus of the debate away from their own actions… like their role in causing the Great Depression of 2008. The strategy behind “distraction by demagoguery” is to create a sacrificial target, a pseudo-enemy target, out of Americans’ anger, fear and anxiety, and then invite non-ruling class Americans to expend all their physical stamina, their intellectual energy and their emotional angst railing against those strategically created, pseudo-enemy targets. Think of yesterday’s Hollywood “Communists” that “ruling class” Senator Joseph McCarthy so piously and so self- righteously targeted for destruction in the 1950s.

“Distraction by demagoguery” generally works because “ruling class” America is able to exploit and take advantage of the wounds they inflicted on the American psyche, like the psychological wounds they inflicted on America with the Great Depression of 2008 – wounds that run the gamut from Post Traumatic Stress Disorder on one end of the spectrum to anger, fear and anxiety in the middle of the spectrum to a general (can’t quite put your finger on it) malaise of discontent and ambivalence on the other end of the spectrum… a mood disorder that follows us non-ruling class Americans around like a black cloud, inhibiting our joy, interfering with our family lives, our relationships and our sleep. The American “ruling class” plays that American mood disorder (they created) like a finely tuned fiddle, and capitalize on the emotional disharmony that they imprinted on the American psyche by giving us non-ruling class Americans a sacrificial, pseudo-enemy target that we can all vent our anger, fear, anxiety and hurt feelings (of betrayal) on as we distract ourselves from the real issues… the actions of the American “ruling class.”

“Distraction by demagoguery” has a definite psychological allure to us non- ruling class Americans because it psychologically justifies our preexisting, wounded psyche (oh, that’s why I’m so upset), and because it alleviates our black cloud, mood disorder by giving us someone to proactively go after, someone to sink our teeth into as the “Great American Debate” continues. Then, the final demagogue to urge Americans over the top of the ramparts to chase down the pseudo-enemy target, sacrificial lamb thrown up by the “ruling class”???… their “talking heads” media trumpeting “mob-mentality,” emotion and easy to digest, broad sweeping sound bites… specifically designed to overshadow reason, deliberation, subtlety, nuance and the need to balance America’s diverse interests.

Concrete, historical examples of past, pseudo-enemy targets created by the “ruling class” strategy of “distraction by demagoguery” include: Trial Lawyers (whose only goal is to… “rip off the system”), Juries (who always seem to make “outrageous financial awards”), Scientists (like Galileo the “Heretic” who challenged the Bible by pronouncing the sun to be the center of our universe), Teachers (who challenged God’s word by promoting the heresy of “evolution” in the classroom), Catholic mackerel snappers (like John F. Kennedy who wanted to impose Papal Rule on America), Muslim hordes (who justified the Crusaders’ march to the Holy Land to kill innocents in the name of “Christianity”), Jews (like the “Shylocks” who were single handedly responsible for the failure of the German economy in the 1930s), the Hollywood film industry (like the “Communists” of the 1950s that the great visionary, Senator Joseph McCarthy, exposed), Black Ns (like F.B.I. target and adherent of civil disobedience… the “uppity” Martin Luther King Jr. who needed to be taught his place), Mexican Wetbacks, Irish Micks, Italian Wops, Immigrants in general, Medicaid, Medicare, Welfare, Labor (closet Marxists who dare to attack the sacred tenets of “Capitalism”… through their ruse of “fair wages” and “safe working conditions”) and a host of other so-called “trouble makers” that “ruling class” demagogues have targeted and distracted us with over the course of history.

Now, the 2011 “new kid on the block”???… today’s poster boy, pseudo-enemy target brought to the “Great American Debate” by the good offices of the American “ruling class”… to purposely distract us by demagoguery???… the new, pseudo- enemy target???… Labor and Unions in general and “Government Employees” in particular. And, once again, the distraction by the American “ruling class” demagogues is working as intended. “Ruling class” America has now reshaped the “Great American Debate” by “sleight of hand” to purposely shift the debate away from themselves… away from their Wall Street brethren, away from the greed of Investment Bankers, away from AIG, away from the Madoffs of the world and away from other “ruling class” profiteers who brought us the Great Depression of 2008 – while, right this very moment (but removed from the scrutiny of the “Great American Debate” by “ruling class” sleight of hand)… the “same-o, same-o,” insatiable Wall-Street greed continues unabated and unseen, as “ruling class” greed is again on target to set us up for the next Great Depression five to ten years down the road (if the bailout deficit doesn’t get us before then).

While we non-ruling class Americans bite into the great distraction of the “ruling class” demagogues, and fill the “Great American Debate” with the so- called “abuses” of Labor, Unions and “Government Employees,” the “ruling class” demagogues are (if you can believe it) voting in their “ruling class” Legislatures (with the urging of their “ruling class” governors) to launch a two front attack against “Government Employees” to: (1) eliminate the employees’ right to “collective bargaining” (the inalienable, God-given right of human beings in the working class to band together in an attempt to “negotiate” and improve their lot in life, improve their hourly wages, their benefits or the safety of their working conditions) and (2) to give State appointed fiscal managers the unilateral power to nullify existing, enforceable contracts that “Government Employees” have already negotiated, signed, sealed and delivered – while, ironically, at the very same time, the States are reducing taxes on business, hoping that the new-found profits the States now hand to business with the stroke of the legislative pen will be used to create jobs, as opposed to lining the pockets of business’ executives with additional, high end bonuses… not a good bet based on history.

The message the American “ruling class” sends to America???… neither the inalienable right of “collective bargaining” for workers nor the “Rule of Law” on contractual agreements restricts them from doing what they want. If the “ruling class” demagogues are able to destroy the “collective bargaining” rights of Labor, or, if they are able to unilaterally nullify preexisting labor agreements… goodbyemiddle class (including our soldiers who fight our country’s wars, including our police and firefighters, including our teachers and including our auto workers), and… hello entrenched “ruling class” Monarchies and demagogues who will “lord it over” the financial security of the rest of us non-ruling class Americans. And,even if you favor today’s result against government employees, because it doesn’t involve you this time around, you can say goodbye to any protection by the “Rule of Law,” and you can say hello to the “Rule of Men” as the American “ruling class” now “lies in wait” with firm precedent to undermine the financial well being andcontract rights of all other non-ruling class Americans… the next time around. While Americans are distracted by “ruling class” demagogues who manipulate the content of the “Great American Debate” for their own self serving agenda, America’s non-ruling class is being economically bludgeoned while under the influence of “distraction by demagoguery.”

I am not unmindful of the financial deficits our cities and states have inherited as a result of the Great Depression of 2008 (brought to us by “ruling class” America), but what now gives that reckless, plane-wreck “ruling class” the right to force Labor to forfeit both their inalienable right to bargain collectively and their contractual rights secured by preexisting, enforceable labor agreements… just so that the “ruling class” can cover the “gambling losses” that they inflicted on the rest of us by refusing to regulate their “ruling class,” Wall Street, Big Bank brethren.

I also know that abuses in any group or social program are always open for debate, criticism and correction. There are abuses in all groups, professions and social programs, but we don’t lay waste to the entire group, profession or social program because there are abuses. Lobbyist corruption and special interest abuse exists this very moment in the halls of our Democracy, but we don’t throw out the democratic form of government because of ongoing abuses and corruption. As the great University of Detroit Law School professor, Alan Sultan, once yelled out to his bewildered freshman class in the fall of 1966: “You don’t throw the baby out with the bath water.” Now, 45 years later, we are no longer bewildered. We see what’s going on.

And, what’s going on is that… the American “ruling class” demagogues are distracting the “Great American Debate” away from themselves and focusing it on Labor and Unions in general and “Government Employees” in particular, and throwing up those pseudo-enemy targets as distractions for angry and betrayed,

non-ruling class Americans to chase down. The chase the “ruling class” strategically sets in motion works. While we non-ruling class Americans reflexively attack one another under the auspices of the “Great American Debate,” we fail to notice “ruling class” America laughing all the way to the bank. While America is being distracted and seduced by the American “ruling class” with their “sleight of hand” version of the “Great American Debate,” on such topics as “collective bargaining” (the only weapon middle class Labor has to fight against runaway, unregulated capitalism) and on Labor agreements (negotiated and signed as arms-length transactions), the “Rule of Law” is being systematically and unilaterally destroyed by the American “ruling class”… who will then have the absolute power of “lawlessness” to “lord it over” the financial security of the rest of us non-ruling class Americans.

America’s “ruling class” is expanding the gap between the rich and the poor at an alarming rate while they coin a phrase to tell us that the loss of wages and benefits, and the ever increasing work load of the American worker is just… the “New Reality.” But, while America struggles with the insolvency of our national and local governments, mega corporation General Electric is reported to have earned 14.2 billion in profits in 2010, and paid no U.S. taxes (repeat, no U.S. taxes period). That’s over three billion in taxes the U.S. treasury won’t get… a three billion dollar short fall that we non-ruling class Americans will have to make up so that G.E. can spread that three billion around in executive bonuses… subsidized by us non-ruling class tax payers. You have to give it up for the “ruling class” of America. They certainly know how to use “socialism for the rich” while targetingAmerican “labor” as the pseudo enemy in the “Great American Debate.” As my eighth grade educated mother would tell me (stealing a line from the 1920s song: “Ain’t We Got Fun”)… the “New Reality” is nothing more than an Old Reality: “The rich get richer and the poor get laid off.”

Last Hope… Trial Lawyers and Juries

But, we are not without hope. A sliver of hope arises out of the Bill of Rights and its constitutional ideal of “trial by jury.” That hope is entrusted to the judicial branch of government and to “trial lawyers” who will challenge America’s “ruling class” and demand their accountability before an American jury of “We the People”… trial lawyers like the ones in New York who are now seeking to impose equitable, constructive trusts on the ill-gotten billions that financial advisors skimmed off the top of investors’ hard earned savings and retirement accounts before they (merely) sent the investors’ hard earned money on down the line to the Bernie Madoffs of the American “ruling class.” And, when a jury is impaneled in those gigantic financial conspiracies (or any other case in this country), that jury (or any other jury in this country) will hear all the facts and apply the law the judge gives them and render a fair and impartial verdict, uncorrupted by the money, the power or the influence of lobbyists or special interest groups because those purveyors of self-interest capitalism will not be allowed into the jury room to whisper in the ears of jurors or to ply the jurors with money or favors for the jury’s vote… like they do with the executive and legislative branches of government. Nor will those purveyors of self-interest capitalism be able to “threaten jurors” (like they do to the legislative and executive branches of government) that the jurors better vote for the “ruling class” or they will not be able to sit as jurors in future cases. So, as a last resort, consistent with the American ideal of democracy, it is a “trial lawyer” working with a jury of “We the People” that is the ultimate “check and balance” to bring accountability to bear for the misdeeds of the rich, the powerful and the politically connected “ruling class” of America.

Ruling Class Attacks on Jury Trials

But, watch out and jealously guard the right to trial by jury for… if the rich, powerful and politically connected “ruling class” can do away with or even limit the right of trial by jury, they will be well on their way to avoiding accountability and perpetuating their position in the ranks of the “ruling class” of America forever – all to the detriment of the common good and the silent voice of the rest of us. The “ruling class” of America know they can’t intimidate the trial lawyers or kill them off as a Shakespeare character suggested. The “ruling class” also know they can’t directly do away with the constitutional right to trial by jury. But the “ruling class” of America is financially well positioned, and you can safely bet they will continue to do their very best to avoid accountability by jury. You can safely bet that… money is no object and the “ruling class” of America will do everything money can buy to artificially limit the voice of American juries that hold the “ruling class”accountable to “We the People.”

In Michigan, the “ruling class” has waged war on the right to trial by jury, and has been very effective in doing away with, and limiting the right of juries to speak for “We the People.” Think “governmental immunity”… a reprehensible legislative enactment that takes away all accountability when our Michigan citizens are killed, maimed or injured by negligently designed roadways (like intersections with four- way green lights inviting everyone to cruise through). Think Michigan’s drug liability law which, unlike any other state in America, frees up drug companies from almost all accountability to Michigan citizens injured by dangerous side effects of

drugs (e.g. Vioxx, Avandia, Fosamax, Celebrex, Crestor, Zyprexa – no recovery or accountability in Michigan despite their deadly effect). Think also of monetary caps in medical malpractice cases that limit accountability by limiting the amount of pain and suffering damages a patient can recover even though a jury (purposely kept in the dark about the cap) awards a higher amount that the jury thought was fair and reasonable (thanks, but no thanks, jurors, for your efforts). Think of legislative restrictions of expert witnesses to give testimony to the jury. To this day, I can’t believe the Michigan Supreme Court, a co-equal branch of government, stood by impotently and allowed the legislature to invade the province of the Court’s own rule making authority by telling the judicial branch of government which expert witnesses are (or are not) qualified to testify in a court of law… especially where the Michigan Supreme Court had already adopted their own qualification of expert witnesses in the “Rules of Evidence.” Also, think “tort reform,” in general, including the most recent effort by federal legislators to pass more tort reform as a trade off to health care reform… a great idea, at least, until it is you or your loved ones who are injured, maimed or killed by the avoidable negligence of others.

Judges On The Attack… Against Jury Trials

And, now, a further attack on the right of an American jury to hold the “ruling class” accountable to “We the People.” Many judges are trading their “judicial independence” for a spot on the “ruling classes” political team. Developments over the last decade or two show that the centuries’ old hallmark of the judicial branch of government, “judicial independence,” is being compromised on a wholesale basis by some of our judges who, apparently, want to be in the power-broker loop of the “ruling class,” or who, apparently, need the campaign contributions from special interest groups and their capitalist supporters to mount a successful run for judicialoffice. Think of the campaign contribution in Caperton vs. Massey where a CEO whose company was a defendant in a pending civil case contributed three million dollars to a judicial candidate for the West Virginia Supreme Court. With the help of his three million dollar benefactor, candidate Brent Benjamin was elected to the West Virginia Supreme Court and then (surprise of all surprises) newly elected Justice Benjamin cast the deciding, tie-breaking vote saving his (three million dollar) political benefactor from a judgment the jury had rendered against his benefactor… a practice condemned by the United States Supreme Court and by the Conference of Chief Justices representing the leadership of America’s state Supreme Courts. As the Conference of Chief Justices wrote:

“The Constitution may require the disqualification of a judge in a particular matter because of extraordinary out-of-line campaign support from a source that has a substantial stake in the proceedings.”

Unbelievably, however, two “ruling class” members of the Michigan Supreme Court filed a brief with the United States Supreme Court claiming that some general “presumption of judicial integrity” should win the day, and allow Justice Benjamin to stay on the case, and save his three million dollar benefactor from a jury verdict… an opinion that fails to understand the reality of human nature (unless, of course, you look at life through the elitist prism of the “ruling class”). Thank heaven, the U.S. Supreme Court listened to the Conference of Chief Justices (rather than the Michigan Supreme Court Justices) and disqualified West Virginia Supreme Court Justice, Brent Benjamin, from saving his three million political benefactor from the jury verdict against his benefactor.

Make no mistake about it. It is glaringly obvious that the “ruling class” of America is at this very moment undermining the fundamental concept of “judicial independence” so they can further limit their own accountability under the American system of trial by jury. Think of the broadening judicial interpretations of “governmental immunity” by the Michigan Supreme Court which more and more do away with any accountability for governmental employees who carelessly and negligently kill, maim or injure our non-ruling class Americans. Think of seriously injured auto accident victims whose cases for the last six years in Michigan were taken from the jury and forever dismissed under the rule in the Kreiner case because, in the subjective opinion of the judge, the victim’s admitted serious injuries that permanently impact the victim’s lifestyle did not destroy enough of the victim’s quality of life (now, finally, overruled by McCormick vs. Carrier). Think of the “open and obvious” doctrine (today’s surreptitious “contributory negligence”) where, again, there is no accountability because the injured victim’s case is taken from the jury and forever dismissed because the easily correctable danger which injured the victim was, in the subjective opinion of a judge, “there to be seen.” This “there to be seen,” “open and obvious” doctrine was miraculously and maliciously applied by the Michigan Supreme Court majority to a blind man (Sidorowicz vs. Chicken Shack, 469 Mich 912 – 2003, read and weep)… leading to the inescapable conclusion that the only thing that was “open and obvious” in the blind man’s case was a complete lack of judicial vision and common sense which was trumped only by our Supreme Court’s callous disregard for the welfare of our disabled citizens. The former Michigan Supreme Court Justice who authored that malicious opinion, Cliff Taylor, was quoted in Michigan Lawyers Weekly’s March 1, 2010 edition: “I believe this court will be honored in Michigan history. It’s already a significant and important court in American Jurisprudence.” Really? Also, think of judges taking away civil cases (and even defenses in criminal cases) from the jury on the grounds that “no reasonable juror would find ___________” (fill in the blank)… where judges look into a crystal ball, and, as the great German philosopher Goethe says, find what they were looking for to begin with, telling us what a jury that was neverimpaneled would have done with a case the jury never heard.

Finally, in an attempt to limit their own accountability, the “ruling class” of America is attempting to brainwash and poison the mind of prospective jurors long before jurors are even called to jury duty. Think of anti-trial lawyer advertising campaigns brought to you by your local Chamber of Commerce and their deceitful half true horror stories and their effective propaganda and brain washing phrase: “frivolous lawsuit”… invariably everyone else’s lawsuit but yours. Obviously, all trial lawyers and all trial judges must confront this kind of pre-existing bias in jury selection by a thorough (and I repeat for emphasis, “thorough”) “voir dire” of the jury. Any trial judge who is truly “independent” and not part of the “ruling class” of America will have the foresight and courage to allow the trial lawyers themselves to “voir dire” the jury, and gain insight into any such juror bias and pre-existing beliefs purposely injected by such special interest advertising campaigns for the purpose of biasing future jurors and limiting accountability. Trials are adversarial proceedings between competing trial lawyers, and the most adversarial aspect of any trial is to address and ferret out preconceived notions and beliefs of jurors which would interfere with an unbiased, open minded deliberation by an impartial jury.

As Clarence Darrow said in the 1925 Ossian Sweet case, tried before Judge Frank Murphy in the Recorder’s Court for the City of Detroit: “I have never seen twelve jurors, who, if you could get them to understand a human cause, were not tried and true.” But, the “ruling class” of America, in their self perpetuating attempts to increase their power and limit their own accountability, are doing everything money can buy to make sure the jury never hears the human cause or, if the jury does, they hear it with a predisposed bias in favor of the “ruling class” and against trial lawyers and their clients.

Role Of The American Trial Lawyer

We end where we began. The role of a trial lawyer in America is… ? The answer: The role of a trial lawyer in America is to bring the “ruling class” of America before a jury of “We the People,” and hold them accountable for their misdeeds. And, if you think I’m wrong, just ask yourself who would still be the Mayor of the City of Detroit, today… if it were not for trial lawyer, Michael Stefani, who exposed Mayor Kwame Kilpatrick and his City of Detroit “ruling class,” “pay to play” junta. When trial lawyer, Michael Stefani, exposed the corruption in Mayor Kwame Kilpatrick’s administration, he woke up the Michigan Attorney General, the State Police, the Detroit Police, the Wayne County Prosecutor’s office and the Detroit newspapers… who then smelled blood and took up the chase way late in the game, finally indicting Kwame. Afterwards, Wayne County Prosecutor, Kim Worthy, called a news conference so she could pretend that she was the top- dog, J. Edgar Hoover, law enforcement officer who nailed Kwame… far from the truth. It was trial lawyer, Michael Stefani, of DeLaSalle High School, who exposed Kwame… with the rest of the “ruling class” politicians just jumping on the publicity- for-reelection bandwagon.

As my mother said, “money rules the world.” As I would say 54 years later: “a jury of ‘We the People’ trumps the money… unless, of course, the money and power of the ‘ruling class’ prevent the jury from speaking.”

Copyright © 2011 by Frederick W Lauck All rights reserved

About the Author

Fred Lauck was born and raised in Detroit and graduated from Catholic Central High School. He is an Author and long time Trial Lawyer. A 1969 graduate of the University of Detroit Law School, summa cum laude, Fred is a member of the Michigan and California State Bar associations. He has represented numerous lawyers and law firms on law firm split-up issues and has also tried numerous criminal cases and personal injury, divorce and commercial cases. For a four year period from 2007 through 2010, in People v. Wade, he successfully challenged jury verdict forms being used by some judges and prosecutors that unconstitutionally forced jurors to find defendants guilty. As a result, those flawed, directed verdict forms have been officially banned as unconstitutional. In 2005, he was honored by his alma mater as the Urban Law Clinic’s Student for the Ages and in 2006, he was named Alumnus of the Year. He has also taught trial practice at the University of Detroit Mercy.

Fred has recently published and released his three volume work: “Children of the Greatest Generation” which is available by contacting him.