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TCL > August 1999 Issue > Invasion of Your Privacy Is a Small Price to Pay

August 1999       Vol. 28, No. 8       Page  23
CBA President's Message to Members

Invasion of Your Privacy Is a Small Price to Pay
by Steven E. McBride

Editor's Note: During this administrative year (July 1999-June 2000), this space will be used for material written by CBA President Bart Mendenhall, as well as other officers of the Colorado Bar Association. This month's article was written by Steven E. McBride, Englewood, a partner in the firm of McBride, Jewett & Drinkwine LLC, and Senior Vice-President of the CBA.

A few days ago, I hurried into Arapahoe County District Court, hoping to make the midmorning roll call for my Permanent Orders hearing. I had, of course, tried to squeeze in another phone call and memo before my departure; underestimated the impact of the population explosion on Valley Highway traffic; overestimated my ability to sprint to the courthouse steps with a year's worth of correspondence, pleadings, and discovery in hand; and, as a cumulative result of such poor planning, approached the revolving doors with no time to spare.

As the capper to the morning's miscalculations, I was third in line to the door, making me approximately eighth in line for the security check. While waiting patiently for my turn to empty pockets, open a box and a briefcase, and walk through the metal detector, I heard the normal barrage of privacy complaints: "Do you have to open my purse?"; "It's only my belt buckle—it sets it off every time!"; "I'm an attorney, why do I have to go through this?" Each witness, juror, lawyer, litigant, friend, and victim seemed to have little understanding and certainly no appreciation of why such scrutiny was reasonable. I knew why.

Several years ago, Judge Joyce Steinhardt asked me to serve as a guardian ad litem. I'd served in that capacity many times in this judge's divisions, but had limited my caseload in that particular area in recent years. The judge had a particularly troublesome case, and the court clerk asked if I could try to assist in a solution.

Permanent Orders had been entered in the case. The family had been evacuated during the final days of the South Vietnam government. Mother was a homemaker, still parenting three teenage children. Father had been a high-ranking officer in the Vietnamese Army. Marital discord had deteriorated into a very conflicted divorce, with custody granted to mother and a restraining order to father due to acts of and threats of violence. There was still much love between father and his children, and I was asked to formulate a visitation plan. The normal calls to attorneys, home visits, office appointments, meetings with children, and interviews with friends provided me no clear solution. No matter how I turned the pieces, I couldn't complete the puzzle.

I asked the clerk to set a review hearing. I wanted to present my thoughts to the court and was hopeful the presence of all parties, including the younger two of the children, before the "black robe" would bring some order to the chaos and conflict I was witnessing. The day prior to the hearing, I called the judge's staff to remind them of the standard security request, a deputy in the courtroom, whose presence would certainly be a calming influence. The clerk was one step ahead of me, as always, and had already "red flagged" the file.

At 1:15 p.m., I was in the cafeteria, gathering notes for the hearing to commence in fifteen minutes. As I walked toward the exit, a colleague asked if I had heard what had happened upstairs. Mother, father, and one child had also arrived early for the hearing. At 1:10 p.m., just outside the courtroom door, the father had emptied a handgun into his ex-wife, killing her and injuring a friend. The sixteen-year-old daughter was a witness.

The next day, Judge Steinhardt, acting as the Chief Judge of the Eighteenth Judicial District, ordered the institution of security at all courthouse entrances. The system instituted that day is the same one under which we presently operate.

Why did he do it? I'll never know that answer. I'll never forget that I had arranged the hearing that resulted in a young lady seeing her father shoot her mother. What could be done to prevent a reoccurrence?

Since that time, I have realized that the courthouse, a workplace for thousands of judges, clerks, and support staff, and a "second home" to trial attorneys, is perhaps something quite different to a litigant. Victims of crimes, although given the right to appear and be heard at critical stages of prosecutions, also must relive their senses of violation with each such stage. The accused, if overcharged or innocent, must risk loss, without justification, of everything they have earned. The guilty, with justification, will lose liberty or property.

For civil litigants, we try to tell them "it's just money." For the injured, it is, however, their only opportunity to recoup some small portion of their loss. No one will recover enough to make their pain go away. For the defendants, each hearing is at least a financial burden, and commonly their fiscal breaking point.

In the domestic arena, no semantic statutory revisions will ease the loss felt by the severing of such emotional bonds. Few spouses are approaching these processes with enthusiasm. They risk loss of people, property, and happiness all in one brief moment.

What does all this have to do with the invasive nature of the security system? I think we must all remember that few of our clients, no matter their reason for their court appearance, choose to be there. They are compelled to attend, by reason of subpoena or need to protect themselves. Most appearances are "takings" from them. Even those who "win" are missing work, taking time from family, and spending considerable portions of their resources. Those who "lose" suffer the same damages, magnified proportionately. For counsel, we are taught "it's only money," "it's not your liberty," "don't live your clients' lives"—all good lessons to an extent. However, in a society where children kill peers because of their social rejection and presidents order bombings at times suspiciously companion to poll results, why aren't courtrooms likely battlegrounds? Isn't it in fact likely that the pain of this process will create the temporary insanity that culminates in such violence?

As trial counsel, we need to remember that the "other party" is threatened by each letter, every paragraph in a pleading, and every word of cross-examination. Our own clients are unlikely to ever feel any real sense of victory, no matter how brilliant our efforts. It has been said that justice, as an ideal, is the principle and the process by which each person is assured the things that belong to him or her. Yet most litigants feel they are losing something each time they appear on the courthouse steps. Parents don't win custody so much as they lose the opportunity to spend each and every day and night with loved ones. The personally injured win money, but at the immeasurable cost of pain, suffering, and loss of limb. Victims "gain revenge" for insults they never dreamed would be inflicted upon them. Each time they go to the courthouse, the pain of their losses must be relived.

I don't know why the father in my case chose to end his former loved one's life. I do know the process, no matter our intentions, no matter the justifications of the restrictions on his liberties, had stripped him, in his mind, of his integrity. We are every day dealing with people whose personal dignity is being challenged. Our best efforts to prevail as good adversaries are demanded. We must, however, at the same time strive to assure each person who enters our courthouses that the process in which they are compelled to participate is a civil one. Whether they are to witness, to respond, to claim, or to compensate, they must be treated with the dignity our ideals of justice demand. The safety of our clients and ourselves demands it.

So next week, when the security guard takes too long to peruse your purse, when your pager sets off the alarm, or when your Swiss Army knife warrants a claim ticket, please understand. The delay and invasion of your privacy is a small price to pay.

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