The View From the Bunker


From On The Level October/November 2003

The View from the Bunker
by Bob Higdon


It is a popular misconception that the law has something to do with justice, equality, morality, or ethics. Wrong. The law is actually about a favorite technique of Haiti’s Tonton Macoute: draping a gasoline-soaked tire around a poor bastard’s neck and setting it afire. Find a lawyer who’s been in the courtroom trenches for a while, feed him six vodka martinis, and he’ll admit it. Forget right v. wrong, fair v. unfair, or justice v. injustice. Your goal is to be the first guy to find a tire, some gas, and a match. If you can locate those tools of justice before your opponent does, you’ll soon be farting through silk.

Except for occasional excesses like the FBI running amok at Waco, we, being an enlightened and compassionate society, usually stop short of striking an actual match. For most purposes, in both civil and criminal cases, it suffices to saddle the other side with a symbolic burning tire: The Black Hat. Every political contest -- a legal case or controversy is merely a structured variant of gutter politics -- begins with a race to jam that symbol of evil on the enemy’s head before he sticks it on yours. If you succeed, the white hat is usually yours by default and everything that follows is just for drill.

There’s nothing new here. It has been going on almost from Day #1 when God tossed the tire around Cain’s neck and banished him from Eden. Cain was indeed a red-handed murderer, but in actual fact guilt rarely matters. Power is invariably the issue. Ask Socrates, Jesus, Thomas More, Joan of Arc, John Scopes, or Ezra Pound. They wore their black hats into eternity, though they were as innocent as Minnie Mouse. Modern examples are everywhere. See those black hats on Martha Stewart and the CEOs of Enron, Worldcom, Global Crossing, and Tyco? People lost their pensions because those sons of-bitches wanted ermine shower curtains. Light those tires. The D.C. sniper trials will soon be underway but they’re a complete waste of time. You can’t tie up traffic on I-95 and the beltway the way these sociopaths did for weeks on end and not expect to wear those decorative Dunlops. I don’t care what the defense might be; nobody does. Give them the spikes in their nasty arms, send them to hell, and let them spend eternity trying to extinguish those fiery necklaces.

At this point you may be wondering what these legal principles have to do with your and your bike. What are the chances, you ask, that someone might think you’d look better with your head on fire? Pretty good, actually, since there’s a 38% chance you’ll be involved in a motorcycle wreck before the week is out and a 67% chance that some negligent bastard (other than you) caused it.

The first thing you’re going to need when you head to court is a good mouthpiece because people under stress can’t think straight. I recommend that you consult the guy I’d go to when someone is aiming at me with a Metzeler torch: Jake Stein. He’s the lawyer’s lawyer in D.C. He represented the only defendant found not guilt during the Watergate trials, at a time where the smoke from burning fires blotted out the sun. You probably have seen him on TV standing next to another of his clients. Monica Lewinsky.

We’ve been neighbors for almost 25 years. He and the long-suffering Susan take the bus downtown every morning. One day she came home and asked if I would talk to Jake about a motorcycle case he was investigating. Sure, I said. I’m the neighborhood bike guru.

We met a few days later. He told the story. Biker and wife on Harley, packed to the gills for a weekend ride, experience sudden loss of tire pressure in rear tire. Biker controls rear-end wobble for a few seconds, tries to brake gently, but bike falls over at fairly low speed. Husband has some road rash but wife is much worse. Head injury, permanent and grim. James spread out some photos of the accident scene. It didn’t look all that bad, but it had been enough to rearrange some lives permanently.

Hungry lawyers advertise at 2:00 a.m. on TV and take any case that shows up. Jake hasn’t been hungry for 40 years. He takes cases that interest him or that he can’t lose. This one, if he decided to represent the bikers, had a value of a few million dollars.

‘What’s your theory?’ I asked.

‘Improper installation of the tire,’ he said. It had been put on by an authorized dealer the day before his potential clients began their ride.

‘You’ll want to consult with a tire guy,’ I said. I gave him the name of an industry expert. ‘And you should be aware of some downside risks that are unique to motorcyclists.’

He knew what was coming. Who was likely to be stuck with the black hat here? It is the very first thing lawyers worry about when a case walks in the door.

‘First,’ I said, ‘I wouldn’t ask for a jury. Let the judge try it alone. I know it goes against your instinct, but ordinary people believe that motorcyclists have death wishes and consequently deserve whatever happens to them. I tend to agree with that, by the way. People who ride bikes have a screw loose. Normal people don’t ride them. You know that. So skip the jury demand and hope that the defendant doesn’t ask for one.’

We both knew that wouldn’t happen. Juries don’t like corporations any better than they like bikers. We assumed that we could throw a flaming tire around the mechanic’s neck (and, by extension, his corporate employer). But that wasn’t going to do much good if the motorcyclists, who are born with black hats in the eyes of most juries, couldn’t shake theirs. It’s a lawyer’s nightmare scenario, the case of Hitler suing Stalin. The normal reaction is to hope they both lose and rot in hell.

‘Next,’ I continued, ‘these poor people were an accident waiting to happen, and when it did happen they were almost guaranteed to be hurt. Look at the way they packed this bike.’ I pointed at one of the photos. It was pure Harley styling: a three-foot sissy bar with maybe 80 pounds of junk stacked and bungied all the way up. ‘you want to pack a bike with the weight distributed evenly and low. This is undistributed and high. Trying to control this machine at low speed, particularly with a failing rear tire, would be like trying to steer a brick.’

Jake frowned at the photo. The mechanic might have put the tire on backwards, upside down, and inside out, but if his lawyer could prove that the riders were equally, or even partially, negligent, all bets are off. That’s contributory negligence. Depending on the jurisdiction, it can reduce or even completely eliminate a recovery.

‘The helmets don’t help either,’ I said. ‘They’re called �beanies,’ named after the organ they theoretically protect but never do. You wear one to avoid tickets in states that require helmets. Is it better than no helmet at all? Maybe in an alternate universe. Would the head injuries almost certainly have been mitigated with a full-face, DOT-approved hat? No honest person could deny it.’

This was more bad news. If you knowingly and voluntarily walk into a minefield, it’s considered bad form to whine when you’re blown to bits. There is a clear risk in riding without helmets; these bikers knew it and ignored it. It wouldn’t affect the liability side of the case, but it could seriously flatten the monetary damages. Sometimes with a sympathetic plaintiff, the jury will overlook egregiously bad judgment. Is a biker sympathetic? Maybe to another biker. Maybe to his sister or Mother Theresa. But to a jury? Not in my world.

Some wise men think that truth magically emerges from the adversarial process and that angels visit juries to assist the common people in their deliberations. I wish it were so, but confidentially I’d rather place my trust in the tooth fairy. The legal process redefines uncertainty every day, based as it is in a thousand years of fiction, hope, and power politics.

The case that Jake was thinking about taking was even tougher. Here he would be hoping for a little uncertainty. Sure, a nice lady lay in a bed somewhere with her brain in pieces. She had been a wife, a mother, a worker, and a friend. Now her life was unrecognizable. Had she been hurt in a car, plane, boat, or roller coaster, maybe there would be money to help her out one day. It might have been, but she was aboard the wrong vehicle. And on top of the bandages that now cover her head she wears a black hat.