Justice: Who says it's fair?

When I am discussing legal questions with other veterinarians, there is one important issue that routinely comes up and can often be the source of somewhat contentious debate. The doctors often ask me some permutation of the same question:

• "Why, when I was faced with a legal issue, was the matter resolved unfairly?"

• or "Why didn't I receive justice?"

The reason this mystery persists is simple: We get good training in veterinary school, but the training in high school civics is marginal.

The point that many doctors have difficulty fully grasping is the distinction inherent in Western jurisprudence between justice and fairness. Many of the practitioners I speak with make day-to-day legal and business decisions based on the moral and ethical misjudgment that the U.S. legal system was designed with fairness as a fundamental tenet.

It would be an error for any participant in the legal system (particularly a non-lawyer) to focus on fairness as the primary objective. As veterinarians go through our practice lives, we are faced with numerous decisions that are at least tangentially related to the law. Those decisions immediately involve us in the dichotomy between justice and fairness.

A case of life and death

In the clinic, we must choose whether to require a pet to be decapitated and evaluated for rabies, even when the owner is irate and the likelihood the disease's presence is negligible.

We must decide whether to use a medication that is a day or a year out of date. "Just this once until we get our order in..." Or have you ever said, "Well, this product works so well, and they don't make it anymore..."

It might not be fair that we aren't supposed to do something or that we omit to do something. Nonetheless, the act or omission could eventually result in a judicial or administrative decision that is clearly just and (in the minds of many) grossly unfair.

In our legal system, then, what is justice? Justice, summarized, is a product of a relatively organized and methodical approach to proving facts within an infrastructure of established laws that are applied relatively equally to all parties.

So what's the big deal? Is there really a significant difference between fairness and justice? There is. Essentially, justice can be legislated, codified and applied more or less even-handedly. Fairness is extremely subjective and that subjectivity has the potential to lead to results that are not even arguably fair.

The decision tree

But the big practical difference between justice and fairness is how that distinction allows good people to make poor (emotional) decisions.

For example: A veterinarian might have the opportunity to plea bargain a case of marginal or arguable misconduct, or to instead allow that case to go to a tribunal. In such decision-making, the choice is whether to fight for fairness or simply to settle for justice.

The decision involves a number of sub-decisions.

Among them:

• "Should I consider a plea bargain (or negotiated settlement) even though I don't feel that I have done anything wrong?" Tough choice. Yet, the question is not whether we think we have done wrong, or even whether what we have done actually was wrong. The question, considered in an emotionally detached manner, is: "what can be proven, and what are the potential practical consequences of successful proof?"

• "Should I retain counsel?" If the legal system is fair, an attorney shouldn't be needed, right? "The care and treatment were so beyond reproach that even a lay (non-attorney) veterinarian should be able to explain it to the judge/jury/arbitrator."

If the system were a "fairness" system, then it might be a workable theory. In a "justice" system, though, it might be better to hire someone with years of training and experience in the obtaining of just, yet favorable results. Remember, the world might be more fair if lawyers could safely remove porcupine quills from their own dogs with pliers. (Isn't it really obvious what needs to be done?)

The moral compass

Veterinarians often take the same moral position when dealing with the Internal Revenue Service or their state tax authorities. They "know" that they have done right, filed timely, taken only legitimate deductions and paid appropriate withholding or estimated taxes. They "know" what products and services are exempt from sales taxes and feel invulnerable when an on-site audit is scheduled by a state tax-compliance officer.

When faced with legal matters such as those, I think it is again time to remember the distinction between fairness and justice.

A good accountant focuses on the best justice for his client. He is a little skeptical about the inevitability of fairness in the American legal system.

And he knows that he should leave the porcupine quills to you.

Dr. Allen is president of the Associates in Veterinary Law P.C., which provides legal and consulting services exclusively to veterinarians. He may be contacted at (607) 754-1510 or info@veterinarylaw.com.