What is man’s greatest asset? Is it the opposable thumb? Or is it the ability to form abstractions and to imagine things? Clearly, our minds are a wonderful tool. But how well do we use this tool?
Our minds seem to like symbols a lot. Religious, social, and governmental groups all have important symbols and credos. We recite oaths, salute flags and talk solemnly about honor and duty and pride.
If a tree falls in a forest and no one is there to hear it the earth will still have a huge dent in it where the tree fell. But if the human race disappears tomorrow then what will happen if a flag catches fire? Will that diminish the universe in some way? I guess what I’m asking is: aren’t symbols only helpful if they elevate our thinking in some way? Is it possible that symbols actually diminish our thinking at times? Is it possible that they diminish our thinking more than we realize?
We like rules too. Rules are like symbols in that we rarely question their purpose. Rules were created to guide behavior, but often they wind up becoming barriers to action. People who have to apply rules like them because they eliminate the need to exercise judgment. If one has to make a judgment then they also have to be prepared to defend that judgment. And, often people who are adversely affected by the judgment will be upset. As with symbols, I have to wonder if rules don’t often diminish our ability to think critically.
A client of mine hired a contractor to do work on his home and gave him a $20,000 deposit. The contractor did no work and kept the deposit. The contractor was a scoundrel and had done the same thing to many other people. I wasn’t surprised when he didn’t challenge the lawsuit I filed against him. Since he didn’t file a formal response to the lawsuit I asked for a "default judgment." Actually, I sought the default judgment against his company since that is who my client signed the contract with.
I went to court with my client to present the necessary testimony so that I could get the default judgment. Before I presented my case I checked in with the docket clerk. He looked at my paperwork and suggested that I needed an "Affidavit of Non-Military Service." The reason for this piece of paper is that if you plan to default a person the court needs to know if that person is a member of the military. If so, then the court would need to determine if they were called away to serve their country. We don’t want people to be defaulted because they weren’t able to answer a lawsuit because they were serving their country.
However, I was not defaulting a "person." I was defaulting a corporation. Corporations don’t serve in the military. Corporations have perpetual existence. And corporations have agents for service of process. This corporation had an attorney as its agent for service and he had received the complaint and done nothing about it. So, that’s why I didn’t think an Affidavit of Non-Military service was necessary. The clerk, however, believed that the affidavit was a sacrosanct requirement. To avoid a disagreement I went back to the form desk, grabbed an Affidavit and had my client fill it out. Then I notarized it.
When the judge called our case my client explained what happened. He had hired the contractor after Katrina to do work on his home and his business. The judge asked him questions that insinuated that he had been foolish to hire such a contractor. Why was that relevant? It wasn’t. But it made the judge feel like he wasn’t simply rubber-stamping the default judgment request. He didn’t want to seem like someone who simply did things in an unquestioning manner. So the judge asked tough questions, even though the questions were irrelevant and belittled my client. The judge seemed to be suggesting that my client didn’t deserve a judgment against a company that had essentially stolen his money.
After the testimony, I offered the contract and the cancelled check as exhibits and moved for a default. The judge asked if I had prepared an Affidavit of Non-Military status. I said that the default was against a corporation, which I believed didn’t require such an affidavit. The judge then grew visibly impatient, and asked again if I had prepared the affidavit or not. I said that I had, and offered it up.
He snatched the affidavit and examined it, and then nodded approvingly. With a hint of reluctance, he granted my request for a default judgment. Behind him was a large crest with the symbol for the State of Louisiana and a United States flag. On the bench next to him were the scales of justice.
Ah, symbols. What would we do without our rules and our symbols?
Still, it’s nice to know that if you’re fighting in a foreign land, defending your country’s symbols and its system of justice, you have at least one thing going for you: you will not be defaulted if someone brings a lawsuit against you. Unless, of course, that person is willing to fill out a form affidavit claiming that you are actually not a member of the military.
But, realistically, what are the odds of that happening?
P.S. If you want a better practice, start using the 80/20 Principle.
The judge was a jerk and probably shouldn’t be on the bench. He clearly violated the canons of judicial ethics; By asking about irrelevant matters, he gave the appearance of bias and was discourteous to your client.
Moreover, the law is rife with statements that the law isn’t supposed to rest on mindless technicalities. I don’t think the judge was so much paying homage to symbols as he was acting as a stubborn bureaucrat.
What is “legal” crime?
After reading this excellent piece I can only think, where, in our system of rules, symbols, and balances does “legal” crime fall? Never covered. Not taught in our law schools. Overlooked by everybody and his cousin in society.
I recently had a similar experience in a parental rights termination case. The father abandoned, both financially and relationship-wise, his children for several years. My client, the mother, remarried and the new husband wished to adopt the children. I filed and personally served the termination petition on the father. The father called me and left a voice-mail message saying he was on active duty in the military and couldn’t respond to the petition. Fortunately, there is a rather informative website ( https://www.dmdc.osd.mil/scra/owa/home ) that will give you an affidavit verifying whether or not a person is on “active” duty with the U.S. military. I ran the father’s information and, lo and behold, he was on active duty. A little more investigation, however, showed that his active duty was at a post within 10 miles of my office and that he was posted as a recruiter as his full-time service job. I think that a lot of people, including activated military personnel posted overseas, would take umbrage at someone using the SCRA in this way instead of the purpose for which it was originally intended.
In this instance, the guardian ad litem provisions of the SCRA were ultimately used to keep this case moving to conclusion – in spite of the defendant’s attempts to mis-use (in my opinion) the SCRA protections.
I realize the original post was about the symbols of the system – both iconic and procedural symbols, but sometimes a different route with different symbolic meaning (i.e., the Federal Code) can also provide an answer.
P.S. Mark Sullivan is a family law attorney in North Carolina and his book on the SCRA should be on every attorney’s shelf during these days of prolonged activations of our military.
Symbols have limited use and are only a means of attaining the ultimate state of transcendence. Thomas Merton talks about the limited usefulness of religious sysmbols as a means of guiding our entrance into an ultimate state of contemplation which once reached results in a resentment of those same symbols because they no longer fulfill our higher needs.
Well, that lawyer was kind of bold. Usually, the court is looking for the plaintiff to sign the affidavit. The assumption is that the plaintiff would know if the defendant was in the military. However, the plaintiff would often not know this. And, the plaintiff tends to be sort of biased against the defendant. But, that’s all besides the point. The important thing is to fill out the paperwork. That promotes the illusion of justice, which of course is more important than justice itself.
True story about a lawyer at my prior firm who lost a confirmation of default judgment over the affidavit of non-military status. The defendant was a human being, not a corporation. The lawyer decided that he himself could be the affiant on the non-military affidavit. So he goes to court and puts on his evidence, including his own affidavit. Judge looks at the affidavit and asks the lawyer whether he personally knows the defendant. The lawyer admitted that he did not, and that he did not have personal knowledge about what he testified to in the affidavit. Result: motion to confirm default judgment denied.
Your post brings to my mind the writings of the late Joseph Campbell [https://www.jcf.org], whose work I admire greatly. His focus was on mythology, and in examining various world cultures and traditions to reveal a common thread, or perhaps more precisely, a common language of the transcendent revealed through the various myths, religions and folk traditions around the world and through history.
Somewhere in the early part of “The Power of Myth” (I don’t have the book with me or I’d quote and cite) he talks about the mythological symbol of the judge’s robe, and how the bench is literally elevated above the rest of the courtroom. There’s an important aspect to this; a ritual-like treatment of an instrument of our society to compel in the ones witnessing it a certain respect. Perhaps that respect for the judiciary (and by extension, our civilized way of life) would be less poignant if the judge merely wore a suit and sat at a table eye to eye with the litigants.
In Campbell’s view, symbols are meant to pitch one’s thoughts beyond the maya/everyday world into the transcendent. Through the symbols in myths, which, upon examination reveal a number of universal principles, our thoughts are elevated into a more rarified, eternal (outside of time, not necessarily everlasting) mode of being.
And thank goodness for this. It’s a mechanism for coping with the harsh reality of nature that is red in tooth and nail. Despite the rough treatment the client received, both at the hands of the defendant and in the impatient questioning of the judge, the whole matter is advancing toward some solid state of justice.