Skip to content

Rocket Dockets: Streamlining Democracy out of the Legal System

2010 November 18

I understand democracy as something that gives the weak the same chance as the strong.

— Mohandas Gandhi

Following last year’s Citizens United Supreme Court decision in favor of unchecked corporate campaign financing, discussions about the inordinate amount of leverage the corporate sector has over American public institutions could be considered kicking the proverbial dead horse. But the extension of that power deeper and deeper into the heart of American civic life constitutes a gutting of the substance of those institutions, the implications of which should unsettle us.  While the corporate lawyer with unlimited resources at his or her disposal is often the clichéd symbol of corporate leverage in the courts, the criticism of the legal system has typically been that there are insufficient measures to level the field, not that the form of the system itself is structured positively in favor of corporate interest. Often the argument in defense of the American legal system is that while bias on the part of individuals is a variable difficult to account for in the structure of the courts, the shape of the legal system itself is predicated on a fair,  judicious set of processes that at least in the de jure are unbiased.

That position, frankly, continues to lose traction in the face of recent developments concerning foreclosure cases in Jacksonville, Florida. This July, the state of Florida allotted 9.6 million dollars to creating a special court with the expressed purpose of eliminating 62% of the foreclosure log-jam in the system. While the reason is understandable, the way in which Florida is addressing their mounting foreclosure crisis poses certain hazards to our legal system. Retired judges, in closed door proceedings, preside over as many as 25 cases an hour, and as Matt Taibi of Rolling Stone writes, they “could well be throwing one ass on the street every 2.4 minutes.”  Press is not permitted in the room. If, in the cursory glance a judge gives one of the several files sitting on his desk, he notices an error on the part of lenders, or if representation for a lender fails to appear, the case is rescheduled. If the defendant commits the same errors, the ruling is immediately in favor of the bank. Fairness in the process? Apparently not at the expense of a clogged system. And certainly not in the interests of homeowners lacking the resources to challenge a banking system that evidently engaged in fraudulent financial practices, the scale of which is unprecedented. Conversations about mortgage-backed assets and subprime lending aside, what concerns me in this situation is the democratic fitness of our court system, and why these “rocket docket” cases have scary implications.

Efficiency v. Justice

CNBC recently ranked Florida as second nationally for the highest rate of foreclosures. This means that 1 in every 155 households is in jeopardy of losing their house. Consider that Florida is one of the 23 states where a judge is required to sign off on a foreclosure, and you begin to understand the scope of the crisis, and why there is such a push to streamline the process. Enter the rocket docket, a method that could have been suggested by a corporate efficiency expert. Of course, corporate efficiency standards are notoriously incapable of accounting for people in any substantive manner. Further, such methods have considerable implications concerning our justice system. Corporate efficiency is not employed in interest of pursuing the truth, or effectively resolving conflicts in a judicious manner; rather, such streamlining is used to pursue a predetermined end, distinctly the type of bias courts are supposed to avoid. The goal desired determines the process. What is the desired end of a foreclosure hearing?  Think about it this way: a verdict in favor of the homeowner, is seen, more often than not, as a delaying of the inevitable. Verdicts in favor of lenders, however, clear the docket, and place a period at the end of another foreclosure case. In this sense, the court’s expressed aim of eliminating 62% of the foreclosure  backlog already accords with the lender’s expressed aim of foreclosing on as many properties as quickly as possible, in order to recoup losses by placing homes back on the market.

Transparency

Is a primer on the importance and consequent freedoms of the press in a liberal democracy really necessary? The reasonable response is no. It’s about transparency, and citizens’ right to  know how their legal system might be setting dangerous precedents.   Given the dubious nature of these foreclosure hearings, it’s not surprising that judges would be, as Taibi puts it, “anxious” about reporters being in the room. That discomfort, in the case of a foreclosure judge named A.C. Soud, should result in admonishing an attorney for having a reporter present is disturbing.

…about an hour later, April Charney, the lawyer who accompanied me to court, receives an e-mail from the judge actually threatening her with contempt for bringing a stranger to his court. Noting that “we ask that anyone other than a lawyer remain in the lobby,” Judge Soud admonishes Charney that “your unprofessional conduct and apparent authorization that the reporter could pursue a property owner immediately out of Chambers into the hallway for an interview, may very well be sited [sic] for possible contempt in the future.

Transparency in the legal process is spinal in a democracy. Our institutions are necessarily revisable according to the wants of citizens; any measure to intentionally prohibit the probe of the public into the actions of the courts is undemocratic. So-called “rocket docket” judges refusing to allow media in these closed door sessions does not accord with either the values of an open society, or the mandates of a democratic legal system. Moving parts in a democracy must be open to conjecture and criticism, regardless of concerns of expediency or public perception. It’s also simply a matter of common sense. If the process is fair, why hide it?

Presumption

American consumer culture tends to trump fiscal responsibility. We have a tendency to live beyond our means, and are often encouraged to do so. It would be remiss to have any discussion concerning democracy without mentioning personal responsibility, and the necessity of potential homeowners managing realistic financial expectations. The other shoe of an adjustable rate mortgage, as so many buyers have learned the hard way, is often a backbreaking balloon payment. This culture of shortsightedness is not, unfortunately, a luxury the working and middle class can afford. But what is often glossed over by supply-side enthusiasts critical of homeowners is that American fiscal shortsightedness, a gravitating toward immediate satisfaction while forestalling inevitable consequences, is a national concern, top to bottom, cashier to store owner to hedge fund manager. Rocket docket foreclosure courts, as is, presume that if a loan is in default, the cause must be mismanagement on the part of the borrower. It’s why these makeshift courts place the onus principally on the defendant. Any failure on the part of the lender (of which, according to Taibi, there are many) is forgiven, while failure on the part of a defendant seals their fate. Isonomy, the necessary equality of citizens before the law, demands that there is congruency in the process for all parties involved. To do otherwise betrays a bias in favor of banks. It’s undergirded by the false trope that responsible homeowners don’t default. Such reasoning serves to justify the speed in the process, which further disadvantages a homeowner whose mortgage may have several overlooked discrepancies with lenders at fault.

What must be kept in mind is the fact that people, real people, are losing their homes, in the midst of record unemployment and a fragile economy. This is the real tragedy here. But that’s in part why we have a legal system based on democratic principles, right? To achieve some semblance of parity, if not socially or economically, at least before the eyes of the law. There are supposed to be levers in place, in a democracy, for those at the bottom to have a fighting chance. This is certainly not to suggest that the American justice system does not have a history of cozying up to power, or that entities with limitless resources haven’t been gaming the system from the jump.  But we should very concerned, whenever the gaming is done blatantly, and with extreme prejudice. Our legal system is one that is shaped concretely tomorrow by the way things take shape today. Ours is a law constructed out of precedent. What precedents are being set in small conference rooms in Jacksonville Florida? How much more than our homes are we potentially losing?

One Response
  1. Colin permalink
    December 9, 2010

    “If… a judge … notices an error on the part of lenders, or if representation for a lender fails to appear, the case is rescheduled. If the defendant commits the same errors, the ruling is immediately in favor of the bank.”
    This reads that, in the case of an attorney present but an error in documentation, the prosecution would be rescheduled for, but the defendant not. Could you please link to or otherwise substantiate the claim that a defendant’s case will be ruled against in the case of an attorney present and an error in documentation?

    “…a verdict in favor of the homeowner, is seen, more often than not, as a delaying of the inevitable. Verdicts in favor of lenders, however, clear the docket….”
    Quite true. But the vast majority of these cases involve non-payment.
    If someone paid and is wrongly accused, a canceled check settles the matter instantly and in some cases the defendant is reimbursed for lost time and attorney fees (this was the policy of someone I spoke with who worked at a firm handling the docs in Va., but I have no idea if its statewide let alone nationwide).
    Most of these issues of prosecution error are documentation that have nothing to do with whether the bills were paid; more a lax take on sloppiness than injustice, in my opinion.

    “‘rocket docket’ judges refusing to allow media in these closed door sessions does not accord with either the values of an open society, or the mandates of a democratic legal system.”
    No it doesn’t, but didn’t Taibbi go one day, and isn’t he reporting on one judge? I suspect if someone were to report this behavior to his boss or some upper-level Fla politician they’d be like “dude, wtf are you doing? you can’t do that!”

    Re: “presumption” paragraph.
    Taibbi’s article was very misleading. For every case he saw, there was an attorney present for the prosecution, so I’m not sure where you’re getting the idea that if a case is brought forward for the prosecution without an attorney it will be rescheduled. When the prosecutor forgot to bring a file, and the judge rescheduled, and Taibi said “technically there was no representation!”… yeah Taibi just made that up. That’s his special interpretation, which is simply wrong. The lawyer was there, he just forgot to bring the file. Big difference. Documents are not people you can talk to and reschedule with.

    If you have any evidence of people who paid their bills and are now homeless, please present it. (I am well aware that mistakes are made and they make headlines, but if any of those people were actually thrown on the street I think it’d stay in the headlines.)

    My biggest concern with this process is where the major banks sometimes have one branch that will field calls about requests for loan restructuring, and will instruct the homeowner to default on their loan in order to be eligible. Then another branch files for foreclosure. While this is wretched, technically they didn’t pay and there’s no legal defense that I’m aware of. This practice should be banned and a hefty fine should be placed in effect… and people requesting loan restructuring should be informed to record their phone calls about it to protect themselves.

    I do appreciate Taibi’s perspective on how, by ending each case, we close the door on investigating the initial evil: the swindlers who got people into deals they couldn’t handle. Yes, many of these people just ran into hard times, but some were doomed from the start. Unfortunately, I have no hopes that the massive resources which would be required to look into this will ever be allocated as such. As frustrating as that is, I can hardly blame Fla for wanting to get these through the system.

Comments are closed.