40. A Former Judge Speaks Out.

NOTE: The following article was allowed duplication from the website: http://tulanelink.com _________________________________________________________________________________ “The once-honorable profession of law now fully functions as a bottom-line business, driven by greed and the pursuit of power and wealth, even shaping the laws of the United States outside the elected Congress and state legislatures.” -- Justice John F. Molloy The Fraternity: Lawyers and Judges in Collusion JUSTICE JOHN F. MOLLOY When I began practicing law in 1946, justice was much simpler. I joined a small Tucson practice at a salary of $250 a month, excellent compensation for a beginning lawyer. There was no paralegal staff or expensive artwork on the walls. In those days, the judicial system was straightforward and efficient. Decisions were handed down by judges who applied the law as outlined by the Constitution and state legislatures. Cases went to trial in a month or two, not years. In the courtroom, the focus was on uncovering and determining truth and fact. I charged clients by what I was able to accomplish for them. The clock did not start ticking the minute they walked through the door. Looking back The legal profession has evolved dramatically during my 87 years. I am a second-generation lawyer from an Irish immigrant family that settled in Yuma. My father, who passed the Bar with a fifth-grade education, ended up arguing a case before the U.S. Supreme Court during his career. The law changed dramatically during my years in the profession. For example, when I accepted my first appointment as a Pima County judge in 1957, I saw that lawyers expected me to act more as a referee than a judge. The county court I presided over resembled a gladiator arena, with dueling lawyers jockeying for points and one-upping each other with calculated and ingenuous briefs That was just the beginning. By the time I ended my 50-year career as a trial attorney, judge and president of southern Arizona's largest law firm, I no longer had confidence in the legal fraternity I had participated in and, yes, profited from. I was the ultimate insider, but as I looked back, I felt I had to write a book about serious issues in the legal profession and the implications for clients and society as a whole. The Fraternity: Lawyers and Judges in Collusion was 10 years in the making and has become my call to action for legal reform. Disturbing evolution Our Constitution intended that only elected lawmakers be permitted to create law. Yet judges create their own law in the judicial system based on their own opinions and rulings. It's called case law, and it is churned out daily through the rulings of judges. When a judge hands down a ruling and that ruling survives appeal with the next tier of judges, it then becomes case law, or legal precedent. This now happens so consistently that we've become more subject to the case rulings of judges rather than to laws made by the lawmaking bodies outlined in our Constitution. This case-law system is a constitutional nightmare because it continuously modifies constitutional intent. For lawyers, however, it creates endless business opportunities. That's because case law is technically complicated and requires a lawyer's expertise to guide and move you through the system. The judicial system may begin with enacted laws, but the variations that result from a judge's application of case law all too often change the ultimate meaning. Lawyer domination When a lawyer puts on a robe and takes the bench, he or she is called a judge. But in reality, when judges look down from the bench they are lawyers looking upon fellow members of their fraternity. In any other area of the free-enterprise system, this would be seen as a conflict of interest. When a lawyer takes an oath as a judge, it merely enhances the ruling class of lawyers and judges. First of all, in Maricopa and Pima counties, judges are not elected but nominated by committees of lawyers, along with concerned citizens. How can they be expected not to be beholden to those who elevated them to the bench? When they leave the bench, many return to large and successful law firms that leverage their names and relationships. Business of law The concept of "time" has been converted into enormous revenue for lawyers. The profession has adopted elaborate systems where clients are billed for a lawyer's time in six-minute increments. The paralegal profession is another brainchild of the fraternity, created as an additional tracking and revenue center. High powered firms have departmentalized their services into separate profit centers for probate and trusts, trial, commercial, and so forth. The once-honorable profession of law now fully functions as a bottom-line business, driven by greed and the pursuit of power and wealth, even shaping the laws of the United States outside the elected Congress and state legislatures. Bureaucratic design Today the skill and gamesmanship of lawyers, not the truth, often determine the outcome of a case. And we lawyers love it. All the tools are there to obscure and confound. The system's process of discovery and the exclusionary rule often work to keep vital information off-limits to jurors and make cases so convoluted and complex that only lawyers and judges understand them. The net effect has been to increase our need for lawyers, create more work for them, clog the courts and ensure that most cases never go to trial and are, instead, plea-bargained and compromised. All the while the clock is ticking, and the monster is being fed. The sullying of American law has resulted in a fountain of money for law professionals while the common people, who are increasingly affected by lawyer-driven changes and an expensive, self-serving bureaucracy, are left confused and ill-served. Today, it is estimated that 70 percent of low-to-middle-income citizens can no longer afford the cost of justice in America. What would our Founding Fathers think? This devolution of lawmaking by the judiciary has been subtle, taking place incrementally over decades. But today, it's engrained in our legal system, and few even question it. But the result is clear. Individuals can no longer participate in the legal system. It has become too complex and too expensive, all the while feeding our dependency on lawyers. By complicating the law, lawyers have achieved the ultimate job security. Gone are the days when American courts functioned to serve justice simply and swiftly. It is estimated that 95 million legal actions now pass through the courts annually, and the time and expense for a plaintiff or defendant in our legal system can be absolutely overwhelming. Surely it's time to question what has happened to our justice system and to wonder if it is possible to return to a system that truly does protect us from wrongs. A lawyer from Tuscon, Arizona, John Fitzgerald Molloy (b. 1917) was elected to the Superior Court bench where he served for seven years as both a juvenile court and trial bench judge.  He subsequently was elected to the Court of Appeals where he authored over 300 appellate opinions, including the final Miranda decision for the Arizona Supreme Court.  During that period, he also served as president of the Arizona Judge's Association.  After 12 years, Molloy returned to private practice to become president of the largest law firm in southern Arizona.  His book has received widespread praise for its candor and disquieting truths.   Copyright 2004, Paragon House From an Internet released preview of the book by John Fitzgerald Molloy, The Fraternity: Lawyers and Judges in Collusion, Paragon House, St. Paul, Minnesota, 2004.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.

37. RE: DEMOCRACY

The following recently appeared in the Portugal News. It was written by an old friend of mine who recently Googled to find me after some 50 years.

"Dear Editor,

Re: Democracy

Twenty five year ago, when moving my residence to Portugal, I received this advice from a Briton whose family had assimilated here many years before: “Avoid at all cost becoming involved in our politics.  Real power lies not with the parties but with the individuals who form an Establishment which controls government through nominated politicians, entrepreneurs and the law. They all know each other from university; they all belong to the same clubs and secret societies.  What politicians  may say at the hustings is simply rhetoric; they have all formed a broad consensus of how to further their careers to mutual benefit and at the expense of a caring society. “  

Since then, influenced by vast changes in education, communication and international economics, the politics have changed but the political institutions have not. The image of Headmaster Cavaco knocking the heads together of his unruly pupils so that they recognise the need for national unity in time of crisis is wishful thinking. Those pupils owe their present positions to an electorate which has been suborned by a perpetual diet of anti-social propaganda intended to persuade it that a “get rich quick and let the devil take the hindmost” philosophy is to be applauded.   

Our society needs to take a critical look and positive action to defeat the inherent immorality of a system based on the vagaries and dubious values of the American Dream. Democracy is being substituted by a movement towards concentrating immense executive power in a cartel lead by financiers, global corporations and corrupt politicians.

Therefore, I join Mr. Norman Walker´s advocacy of a protest vote for the Bloco de Esquerda in the local elections.  This small party, dedicated to the enhancement of social values and previously led by honest men of undoubted capability, such as Professors Francisco Louça and Miguel Portas, may never govern but it must be given strength to influence the policy of what is momentarily a very unstable coalition.

Sincerely,   Robert Knight

36. RE: REFUSALS + UNDERTAKINGS + the Rules of Civil Procedure

An Ontario, Canada, Judge recently stated the following during a Case Conference between 2 opposing parties:

l. Examinations for discovery
"Discoveries are nearing completion" etc.

Judge Brown then states:
lV. Refusals

[6] "In these times of very constrained judicial resources, I am loath to schedule refusals motions, in large part because experience shows that in most cases they have little tangible impact on the evidence adduced at trial. Dare I say that frequently refusals are no more than tactical posturing by a party, and when the party is faced with the issue of what a trial judge likely will want to hear by way of material evidence, advisements or refusals often crumble in the weeks just before trial."

V. Setting a trial date

[8] I think the parties have reached the stage where they are ready to discuss potential trial dates...

______________________________________________________________________________

On February 15, 2011, former Defense Counsel sent this party the following email:

"I am writing you again with regards to the above noted matter in an effort to resolve it without court intervention.

After a truthful and frank talk with my client, I reported the outcome of our discussions, conveyed your client’s rejection of the last settlement offer, and highlighted the new counter offer being the sum of $150,000.00, to be paid by March 04, 2011.

As mentioned in my last settlement offer correspondence, dated February 15, 2011, my client’s payroll is running on a period-to-period basis and could absolutely not support the payment of your client’s last counter offer.

Therefore, in order to settle this matter expeditiously, my client is willing to disburse the sum of $30,000.00 as a firm and final offer. In doing so, my client is putting himself at high risk of insolvency, and is fully aware that this amount might bring the business to a state where there'll be nothing left for anyone.

On a side note, this particular offer matches the sum paid by your client to the new web developers in order to reconstruct an acceptable, custom built, user friendly, SEO enhanced portal-website, which, as claimed, should have been performed by our client.

Again, I sincerely believe this offer is very fair in the circumstances. In short, a considerable portion of our client original code is still in use, especially the substantial front-end code and design work.

Your immediate reply to this correspondence would be appreciated.

I trust that the foregoing is satisfactory and I remain,"

(name withheld)

________________________________________________________________________________

In addition to the above, then Defense Counsel sent a 7 page PDF which included the following:

l. Principal Complaints

"The Plaintiff appears to have two principal complaints, being the Defendant's failure (1) to provide a fully functional website pursuant to the Statement of Work, signed April 14, 2008, and (2) to fulfill the 90 business day guarantee to remedy the website code pursuant to the Statement of Work." ....etc.

ll. Contractual Obligations and Website Content and Design

"The contract is the source of all the rights and obligations between the parties. It quite clearly states that the website content is to be delivered by the plaintiff. As for the website design, structure and functionality, it was to be built by the defendant based on the Plaintiff's specific instructions and feedback. "

NOTE: The above is HOGWASH! Other than stating the parties at the top of the contract, NOwhere in The Statement of Work is the (Plaintiff) Client EVEN MENTIONED!

lll. Website Contractual Obligation and Budget

The contract deliverables were conceived for a "simplified prototype" website. The Plaintiff expectations were far more then what the contract intended to deliver."

(NOTE: Sorry, the Contract does NOT state this; the Plaintiff's expectations are sealed within the contract; this includes the earlier Proposal, since the 'Contract' would resemble/mirror the Proposal)

"1- The Defendant's deliverables identified in the Statement of Work were completed on a custom built basis. Moreover, the used technologies are proven to be fully robust;"

( NOTE: The use of Cake PHP as a readily available framework is foreign to most all web-developers; the inclusion of V-Bulletin, as a Forum, became an immediate scam/spam intrusive aggravant; not to mention the fact the site was proven in-operable to its first 50 users)
_________________________________________________________________________________

Client's SUMMATION:

1) Offering $30,000 to settle out of court surely indicates more than just 'SOME OBLIGATION'!
2) Having now spent more than $100,000 to defend a '100% Guaranteed' online seal to client commitment and satisfaction has become a sad addendum to actual reality, AS TO THE COMMITMENT TO A SIGNED CONTRACT!

3) Tomorrow is my 'Special Appointment' tele-conference with Master MacLeod.

4) According to the Rules of Civil Procedures, let justice UNFOLD!

35. IN THE NUTSHELL ... 2 + 2 = (.?.) YOU FIGURE IT OUT!

CONTRACT = CLAIM ; CLAIM = CONTRACTUAL NON - COMPLIANCE = NO MORE/  NO LESS!

INTRO:
Although Plaintiff conceived the original 'WantGot.com' as an online postal/ zip code based alternative to eBay(1998), well before Craig'sList (2000) and Kijijij (2005) came online, it became just another idea, until - despite his warning they might be too late - in early 2008, 2 investors encouraged him to proceed with creation of the website.

- February 06, 2008.
With timeline now crucial, acknowledged appreciation for market validity a must, and the ability to execute the concept interactive website with know-how and due diligence, Plaintiff set out to find the 'right' web developer. After assessing a number of potential companies in BC, on February 04, 2008 Plaintiff arrived at Defendant's door. After an encouraging first phone encounter with its CEO, the first February 6th, 2008, Plaintiff email, containing the 'WantGot.com' concept, concluded with:
"I'll lightly cross my fingers, hoping it's not too late..."

- February 17, 2008. Plaintiff to CEO:
"1) I expect your continued full honesty.
2) Stop me if/when you've had enough.
3) I trust you tell me if this is worth pursuing.
4) If so, I will need you to express this to add to its appeal..."

- February 19, 2008. Defendant to Plaintiff: "Hey Jan, I definitely feel this is a worthwhile project and that it has potential [...] - any proposal with this level of detail targeting investors must be done of high quality and detail so that the investor understands what they are taking a chance on. In terms of appeal, the site will need to be intuitive and attractive. The risks I see are as follows: (1) ensure we nail down the functionality required for launch initially and target it and (2) a marketing budget will be essential."

- February 25, 2008. Defendant to Plaintiff: "Hey Jan, Enclosed is a proposal [...]. This sounds like a very exciting project and I believe it could revolutionize the way that classifieds are handled online and targeted advertising is sold."

Proposal for the creation of 'TheWantGot.com' (Working title)

Project Description: "The objective of the project is to create a website similar in functionality to Kijiji and Craig's List, but allowing users to perform searches based on distance within a zip code/postal code [...]. Revenue will be generated by targeting ads by location and potential additional criteria."
Timeframe: 10-12 weeks (50-60 business days), with 6 weeks being our goal.
Conclusion: " 'Defendant Co.' is committed to providing high-quality solutions with a focus on covering all the bases to ensure a well-integrated, high-performance website. This includes attractive and fast-downloading designs and easy to use functionality. We believe these skills will be an asset to this project and look forward to maintaining a strategic relationship well into the future."
"Today, our focus remains on producing exceptional results and exceeding customer expectations."

- March 4, 2008. Defendant CEO to Plaintiff: "[...] We will create a formal statement of work/contract that will reflect the proposal. [...] After launch + 90 days you will have as we discussed a website that is a mix between Kijiji and Craigslist but with the distance-based competitive advantages. [...] We are on the latest cutting edge of programming techniques. We have extensive experience with many current trends and continue to broaden our horizons each and every day."

- March 10, 2008. Defendant CEO responding to Plaintiff March 07, 2008, email: "I'm glad to see the other team was honest and didn't try to string you along with the promise of a cheaper price only to increase the cost later. I know my estimate is accurate and it's nice when "competitors" back me up (cause that doesn't happen often - the sales industry is dirty and cheap and I take pride in not doing that)."

- April 14, 2008. 'Statement of Work' = Contract = AGREEMENT
('Company' = Plaintiff; Name of Web Developer= Defendant; Signed by Parties)

"WHEREAS, The Company desires to increase the search-engine position ranking of its website relative to certain search keywords relating to its products and services."
Note: (As informed later: 'SEO was NOT applied to site)

NOW THEREFORE, in consideration of the terms and conditions set forth herein, the parties agree as follows:
l, Scope: "'Defendant' will perform the following activities:"
ll. Functionalities (Note: Follows a detailed list, a number of which were not carried out, but paid for)
lll. Payment Schedule: "The dates are identified as goal dates based on the project time-line of 8 weeks:
(Deposit -$$; Milestones 2/3/4/5/6= $$; Completion - July 11, 2008" + Final payment $$
Vl. Guarantee:"'Defendant' will fix any bugs, or items not built to project specification at no cost once the project is in production. (90) business days."

"IN WITNESS WHEREOF, the parties acknowledge that each has fully read and understood this Agreement, and, intending to be legally bound thereby, executed this Agreement on the date set forth above." (Signed by Parties, April 14, 2008)

PLAINTIFF NOTE:
1) Of all the developers approached, Defendant guaranteed not only full-time dedication to the project, but by far the shortest completion time. (Proposal stated: "With 6 weeks being our goal.": Statement of Work: "The dates are identified as goal dates based on the project timeline of 8 weeks.") The timeline, April 16 to the July 11, 2008, Completion Date, actually being 12 weeks!
2) Defendant also portrayed his company as the best informed, keen, capable, and up to latest tech date.
3) Other than paying for each Milestone when required to do so, the Statement of Work indicates ZERO duties to be performed by the Plaintiff/ Client. 

PLAINTIFF NOTE: As early as May 4, 2008, (some 3 weeks in to the project) Plaintiff alerted CEO Defendant to having problems with the Project Manager. This individual's 'removal' however comes only some 7 weeks after the contracted 'Completion date of July11, 2008!

- September 08, 2008. Email from CEO to this Client: "Hey Jan, it is clear to me that 'X's' project management skills are not where they should be at. We have removed him from the project... Soon we will see the light and move into production." *

- October 30, 2008.
After Contracted July 11, 2008, 'Completion Date', Plaintiff calculates 90 free business days for 'fixings', pays final payment and transfers site to Host company in Victoria. Then, reluctantly takes site live to obtain user response. Some 50 Users come and go, deciding the site is confusing, ill-functioning and not user-friendly.

By Winter 2008, a number of additional classifieds have come online. With costs of $42,000 spent on an unacceptable, inferior product, the 6 month window of market opportunity has been lost. In early 2009 Plaintiff seeks to reinterpret site, using most all of the earlier $30,000 Marketing budget to have it be recreated, plus, to differentiate site from other 'likes,' has added additional items.

The guarantees of "you will have as we discussed a website that is a mix between Kijiji and Craigslist ..." etc. have now become hollow assurances of time past.
Bill Gates' slogan: "On the Internet, a little late is too late" rings deafeningly true!

By late 2009, the self-representing legal battle to seek justice ensues. After a BC Court's dismissal, based on "Lack of Jurisdiction," Professional advice suggests Plaintiff start a Blog, to show PROOF of proceedings. Plaintiff does so. That Blog version subsequently becomes a Counterclaim of defamation.

- February 15, 2011.  (Defense Counsel email with offer to settle out of court)
"The contract is the source of all the rights and obligations between the parties.
The Defendant believes that he completed most if not all of his obligations under the contract. We admit there were some delays occasioned by the sudden and unexpected resignation of the project manager. Nevertheless, we don't think there were any damages caused by the foregoing."
* (Compare with above September 08, 2008: "Hey Jan, it is clear to me that 'X's' project management skills are not where they should be at. We have removed him from the project... Soon we will see the light and move into production.")

Plaintiff rejects offer.

As former Defense Counsel indicated:
"The contract is the source of all the rights and obligations between the parties."  

During a number of Case Conferences, with the Case now under Case Management, Motions upon Defense Motions request Claim Dismissal, based on insufficient 'Discovery' answers supplied by this Plaintiff.

Although QUESTIONS TO ANSWERS TO FOLLOW-UP QUESTIONS ON WRITTEN EXAMINATIONS FOR DISCOVERY are questioned with questions requesting additional answers to new questions, by December 06, 2012, Case Management Master decides: "In the circumstances all questions are relevant Questions" and Plaintiff shall answer them!

A now plainly baffled Plaintiff questions the following:

- May 09, 2013. MOTION DATE
1)  WHY IS  DEFENSE ALLOWED TO PERPETUATE THEIR CLAIM IRRELEVANT QUESTIONS?
2) WHAT HAPPENED TO THE CLAIM OF CONTRACTUAL NON - COMPLIANCE?

ANSWER: 
Since: "THE  CONTRACT IS THE SOURCE OF ALL THE RIGHTS AND OBLIGATIONS BETWEEN THE PARTIES!" (stated by the earlier Defense Counsel, as an Officer of the Court)

Surely!  THIS, AND ONLY THIS SHOULD BE THE RELEVANT ISSUE! 

As a Canadian Citizen, this Plaintiff is entitled to have procedures abide by their Rules of Civil Procedure - no matter what Jurisdiction - within this democratic Nation. 

As such, with all pertinent matters in place, this Plaintiff should be allowed his day in Court!