May 30, 2011

Dear Cyndy,

Thank you for your prompt reply and for your advice to turn my Nantucket controversy over to a lawyer. I'm appreciative of the sympathy and concern which prompted that advice. I owe you an answer.

I'm much aware that the unconventionality and audacity with
which I proceed raises eyebrows. The lawyers, as you perhaps know, have a saying that a lawyer who represents himself has a fool for a client. A physician who treats himself is also subject to censure. I disagree. I believe that a serious, intelligent, passionate lawyer has no alternative but to represent himself.  Similarly I believe a physician who does not trust himself to diagnose and treat his own illness has been play-acting when he pretended to care for his patients.

It's the simplest of logic that since for each legal case there is a winner and a loser, the "average lawyer" wins fifty percent and loses fifty percent of his cases. My own legal efforts have been more successful. I've prevailed in 4 out of 5 cases in which I represented myself.

I lost the first case I tried. The Town of Damascus wanted to take a two foot wide strip of land from the west side of a 55 ft wide lot which I owned, on which stood a large old house that I was using for an office. The sidewalk that was to be built would abut the foundation walls of my building, leaving no space for plantings. I appealed, so did my neighbors.  They hired a lawyer whose case preceded mine on the Court's schedule. My neighbor's lawyer lost his case. After it had been my turn, one of the lawyers in the audience said to me: "I wish I could take out an appendix like that." Nontheless, Judge Hutton was not to be persuaded.  He said he had just heard the same case from my neighbors' lawyer and wasn't going to issue a different ruling. I lost in part at least because of my neighbor's lawyer's failure. Inadvertently I found myself riding on his coattails. I didn't appeal because I had decided that if after 6 years of strenuous diligent work in the little town, there had accrued to me no greater respect from my patients than to insist on paving my little garden, it was time to leave. I sold my building at a nice profit.  the old mansion was torn down, and the house where I had sold chlorpheniramine tablets and such for a penny a piece was replaced, ironically by a "Dollar Store". Subsequently, the excavation for the sidewalk showed that my argument had been correct. The footings for an old fence were found exactly on the boundary which I had claimed.  Had I been more experienced, I would have prepared for the trial with my own private archeological investigation. I would have carried the excavated footings into the courtroom. I might have won. I wasn't smart enough.  But that was then, and now is now.

My second case pro se was in Federal Court against the Mass.  Eye and Ear Infirmary when I refused to accept responsibility for and refused to whitewash resident surgery which I believed to be harmful to the patients. Judge W. Arthur Garrity of school busing fame was very respectful, refused to dismiss the case, published a favorable opinion, but also refused to let it come to trial. He knew I was right and didn't want to have to rule against the Harvard affiliated hospital. Suing Harvard in a Boston court is like suing Jesus in the Vatican. Ultimately the case was closed with a forged, back-dated entry on the docket sheet. I waited to appeal that forgery from concern that the Infirmary would claim I had suborned the forgery.  Such a claim would have been consistent with the Infirmary's theory that I was dying to get rid of the case, - quite analogous to contemorary Mr. Pucci who's got it in his head that I want so badly to close the present controversy that I'll gratefully accept Mr. Ciarmataro's offer to tear out my plumbing ...  When I finally pointed out the forgery to Judge Garrity, he responded with a eulogy about the loyalty and probity of the now retired clerk, and ruled that I had waited too long with my protestations especially in view of the circumstance that the Infirmary was in fact complying with my demands. He dismissed the case without prejudice for failure to prosecute.  The First Circuit Court of Appeals agreed, but not before a judge on the panel had complimented me on the quality of my legal work. When some years later I regaled one of my lawyer patients with that story, he smiled knowingly and explained. The clerk would never have made such an entry on her own. The judge instructed her: get rid of that case, and the loyal clerk did as she was told ...

My third case pro se was against the Social Security Administration which refused to believe that a physician was making so little money from his practice as to be eligible for Social Security benefits.  The Court demanded that I reaffirm under oath the correctness of income tax returns previously filed. I objected on 5th Amendment double jeopardy grounds, arguing that the requirement to reaffirm was plausible only on the premise that the original filing had been false.  I was being forced to incriminate myself.  If I now swore that the hypothetically false return was true, I would be perjuring myself; if I now swore that the hypothetically false return was false, I would be incriminating myself. I refused to swear to anything; the appeals court backed down, and I won my case.

My fourth case pro se - the first Nantucket case, was processed by several judges, some quite hostile to me, none able to contemplate that the Town of Nantucket is infact a New England Cosa Nostra.  In the end, they forced the Town to give me the contested Certificate of Appropriateness. At that juncture, in March 2006, there was a dramatic status hearing in Barnstable.  Judge Connon said he wanted to be informal and stated to me and to Kimberly Saillant, the Nantucket lawyer, that some people on Nantucket ought to be spanked, because 75% of cases from Nantucket were either the consequence of illegal actions by the Town or were "just plain rude". Judge Connon added how much he admired my intelligence and how he wished he was as smart as I. 

My fifth case pro se, the present one, I lost before Judge Macdonald to whom the case, having been reversed by the Appeals Court, has been remanded.  A similar case was lost in 1971 by a very prominent and expensive Boston lawyer - I've forgotten his name - with the firm of Foley, Hoag and Eliot. That case was not appealed, probably because the money had run out. To understand the significance of the Appeals Court decision in my favor, you must remember that 83 percent of appeals, presumably brought by lawyers, are denied. I prevailed against 5 to 1 odds, and in a dramatic way. The judge who wrote the opinion was very favorably impressed with my case, and in Footnote 13 set a standard of plumbing inspection far higher than is explicit in the plumbing code, a standard which unless the Appeals Court backs down, will make it impossible for Nantucket to destroy my plumbing.

When you advise me to hire a lawyer, you have it backwards. The drama of litigation is uniquely thrilling, no theater could replace it. The legal preparation required is very stimulating.  No lawschool lecturer could make forensic dialectic so compelling.  In doing "my part" to humanize and rationalize the legal process, I believe I'm performing a public service more valuable than voting and possibly more valuable even than holding public office.  Most important to me: the lawsuit is a laboratory for investigating the structure and function of our society. The litigation provides me with insights and information which I could obtain in no other way. What I'm learning about the U.S. Court system is analogous to what Machiavelli learned about the machinations of Italian potentates, on the basis of which he wrote "The Prince".  Every time I've hired a lawyer, I ended up instructing, coaching, apologizing and paying him for his continuing legal education.  That doesn't make sense.

And the money part is important. One of my purposes in building the Nantucket house was to create capital. On the premise that I would do much of the work myself, I calculated that by investing $250000, I might build a house with a market value four times as great.  That profit has yet to be realized, but as of now, I haven't lost any of my investment. Spending lots of money for legal services would cripple my enterprise to the point of failure.

Please forgive the candor and directness of my reply. Please give my best to Ned. Enjoy the summer.

Jochen

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