… And a constructive suggestion for a different route …
Eighteen months after one of us, Scriba, was given a sewage bath in Stinson Beach, we can address the question that the scientist and environmentalist Rollie White posed in an earlier post. He asked what it would take for local residents to do something about their failure-prone septic tanks. ‘What could trigger the Stinson folks to say, “There’s got to be a better way to do this”?’
The wretched answer, so far, is litigation — and only litigation.
Our landlord, incensed by our insistence that her house did not meet basic standards of habitability, initiated legal action. We had no choice but to respond in kind. Judging by our experience, many, many, others will have to follow in our footsteps, trailing through courthouse corridors, before the community of Stinson Beach sits up and takes notice.
It is simply too bad that until then, one of us, directly affected by the town’s sewage management choices, was proud of being a complete stranger to litigation – except for a microscopic small claims court case in the 1990s, for which she was prepped by a consumer activist group founded by Ralph Nader.
The aggressive responses of the owner of the defective rental house on Stinson Beach and her two sets of lawyers to a polite request for financial redress left Scriba with no alternative to becoming a co-plaintiff in a lawsuit of the kind that – for the parts of it involving personal injury – calls for being slit open and gutted, like a fish, to establish exactly how and to what degree you were hurt; having those claims attacked in ugly, invasive ways by defence lawyers; and enduring bullying and intimidation in a failed attempt at mediation. In stark, ironic contrast, nothing in the life of the chief defendant — a real estate broker — is opened up to examination. That will happen later, at the trial.
As Scriba is a foreigner in addition to being a virtual litigation virgin, this experience of what The Economist has called ‘the adversarial, prove-me-wrong traditions of American law’ is a cultural education. At the end of it, will she have witnessed America – the country with a constitution shaped by a promise to treat everyone as equal ‘in natural law’ – live up to its image as the ‘shining city upon a hill’ and ‘light of the world’? Or, the opposite of all that? – a personal experience of reflexive litigiousness sucking oxygen and enjoyment out of American life at the small-scale, individual level, not just paralysing democratic government in Washington, the subject of the Economist column we have quoted.
Three reflections on recourse to the law as the only available instrument of justice and change for people damaged by Stinson Beach’s sewage management choices:
@ If the rules for operating septic tanks in the area had a range of penalties attached to non-compliance – as they should, according to experts on communal self-government – outsiders ignorant of the risks in local sanitation arrangements would be better protected, and litigation would be unnecessary in most cases of septic failure. Without any penalties – short of complete shutdown, for extreme violations – enforcement by the sewage authority is toothless.
@ There are no protocols, no standard procedures, and no rituals for dealing with the septic injuries inevitable where ecological conditions are far from ideal for septic tanks (as even defensive landlords recognise). Should there not be – at the very least – some equivalent of the reflexive exchange of insurance information at the scene of traffic accidents? In addition to requiring proof that landlords have followed the local sewage authority’s advice about informing tenants of the hazards of septic tanks, should there also be a rule ensuring that tenants involved in septic accidents know about the horrific medical consequences that can ensue? As for rituals, a bunch of flowers and card with a single handwritten line of apology – in addition to prompt action on attempting repairs – might have taken the edge off the shock and outrage we experienced in our three ‘septic backups’ in just over two weeks.
@ The scale of the wasted time and money in litigation is spectacular — beyond belief — because of the effort involved in repeatedly countering the same calculated lies, justified as ‘surreal reasoning’ acceptable as part of a process far less interested in facts. Almost any thinking adult knows about the eye-popping hourly fees of law firms, and the tendency of lawyers to draw out and complicate disputes. What litigation virgins seldom know and Scriba never expected was legal prose – and particularly one summary of the progress of the case by a lawyer on the other side – twisting not just the occasional fact (quite bad enough) but almost every last one, line-by-line, on page after page. In an earlier experience of this lawyer’s litigation style, he actually categorised unwanted, accidental contact with sewage as something a jury would see as ‘an everyday experience’.
If he and attorneys like him were obliged to substantiate every such claim and putative statement of fact in documents organised like Wikipedia entries — studded with hyperlinks to objective sources of information — that could, at one stroke, dramatically improve efficiency and slash legal bills.
In the way lawyering can legitimately be done today, the fact-twister ignored every scrap of incontrovertible truth — established as such more than once, through elaborate documentation by us in parts of the case. He summarised his arguments on behalf of his client as if there had never been any such substantiation.
As readers of this blog know, Scriba’s co-plaintiff and domestic partner is Advocat – a practising lawyer himself. How could anyone get away with presenting a court with a document in which almost every true statement has been turned back-to-front? she asked. ‘That’s just part of our adversarial style, and it’s always been like that.’ But if the court has people studying all the documentation behind lawyers’ statements, Scriba continued, they will see what the fact-distorter has done. Surely there are such readers, vetting exercises in extended fantasy like his –? ‘It depends on the particular court. Sometimes there are and sometimes there aren’t,’ was his answer. Ah! then we might have to waste hours re-substantiating what we already have – several times, on some points? Search for and point, yet again, to the relevant pages in the fat stack of photocopied records that someone at the office of the Stinson Beach County Water District spent hours supplying for this case? His answer: quite possibly, yes.
Digitisation has made referencing, proof and substantiation so easy that it is shocking that a Wikipedia-esque presentation of arguments is not already de rigueur – and standard practice.
What has litigation done to a year and half of our lives? For Scriba, typing this post, the answer could easily make a book that would virtually write itself, riding a flood tide of distress and fury about being subjected to the consequences of someone else’s unfortunate decisions about septic tank repair and maintenance.
No such account will be attempted here – yet. But, for a taste of the experience, imagine expecting to get straight down to work on returning from an out-of-town journey, as we did in the second week of November. Imagine noticing an item attracting a lot of attention on news sites in that week – and realising that it was the perfect prod for interesting a certain book editor in one manuscript that Scriba has been struggling to complete in the aftermath of the septic horror. She spotted the item on a Wednesday. But on Thursday, Friday, part of Saturday and the whole of the following Monday, arguments about the wording of certain documents in the septic lawsuit derailed both her original schedule for work on her manuscript, and the adjustment of it that communication with the editor would have entailed. The documents were for a judicial hearing on the Tuesday that ended up stealing half a writing day – and, for reasons we will not try to explain, the window to the editor closed, after that.
Now extend that experience backwards to repeatedly losing control of work-related plans and timetables over eighteen months. Imagine feeling, over and over again, as if your whole life was consumed by litigation chores and unpleasantness. To that, add the news – during that long interlude — of a diagnosis of a hellish ailment in your mother. Imagine being forced to explain to her – after a plane ride of approximately fourteen hours, in what will turn out to be her final weeks on earth – why your existence has become so chaotic.
‘Be careful with other people – try to do no harm, if you possibly can,’ someone dear to Scriba used to say often, years ago. ‘You never know what could be happening in parts of their lives you know nothing about.’ That is advice she has tried to live by. The pile of printed-out exchanges about the septic crises with our former landlord shows that we were patient and forbearing, and, even if they became icily polite near the end of our time in the house on Stinson Beach, were never less than civil.
Could she not have extended the same consideration to us – asked herself if there wasn’t a more humane alternative to the ‘adversarial, prove-me-wrong tradition’?