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Washington Lawyer

Legal Spectator: Kafkaesque

From Washington Lawyer, January 2001

By Jacob A. Stein

spectator

Why is it that Franz Kafka’s name, converted into the adjective Kafkaesque, explains so many aberrations of the judicial process, both civil and criminal? Its use by the Supreme Court of the United States makes the point:

The proposed plant [an atomic energy plant] underwent an incredibly extensive review. The report filed and reviewed literally fills books. The proceedings took years, and the actual hearings themselves over two weeks. To then nullify that effort seven years later because one report refers to other problems, which problems admittedly have been discussed at length in other reports available to the public, borders on the Kafkaesque.

Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 98 S. Ct. 1197, 435 U.S. 519 (1978).

Kafkaesque is the enforcement of rules of procedure to the point of irrationality. It is the conversion of the simple into the complex. It is the inexorable bureaucratic legal process grinding the helpless individual. It is the irrational combined with staying power. It is the nightmare become real. It is the anonymous voice that interrupts your telephone call and says, "If you want to make a telephone call, please hang up and . . ." It is the impossibility of filing a motion in a court encrusted by local rules. It is the arrogance of clerks. It is a prosecutor with an unlimited budget.

It includes heroic efforts to save the life of a man sentenced to death so he can be electrocuted in good health. It includes all Rule 11 proceedings. It is a refusal by the court to accept a misdemeanor plea because the defendant is incompetent and then the court’s ordering the indeterminate commitment of the defendant to a mental institution until he can prove he is competent.

It is statutes, rules, codes, and regulations that are a tangle of prolixity. It is law per curiam, overwhelming all reason in its relentless devotion to rationality.

Franz Kafka (1883-1924) studied the judicial process the old-fashioned way: he went to law school. After law school he took a job with the Workers Accident Insurance Company for the Kingdom of Bohemia in Prague, Czechoslovakia, Poric Strasse 7. He worked there from 1908 until his retirement in 1922.

Kafka worked in the insurance company’s workers’ compensation claims department. A workers’ compensation claim file contains forms that identify the injured employee, the employee’s vital statistics, and the employer’s and employee’s version of the accident. These forms are similar to the form our own doctor requires us to fill out before he sees us, as we become nothing more than a recordation of our complaints, diseases, and allergies.

There is always a conflict between the employer’s version and the injured person’s version. Each allegation is the subject of an affidavit covered over with notarized seals and ribbons. Medical reports either corroborate or discredit the worker’s claim of injury.

It was Kafka’s assignment to review such files and weigh the employee’s allegations against those of the employer, and then he must rule. Kafka’s files piled up on the floor, on the chairs, on the desks, and on the windowsills. Kafka never had enough information in a file to justify a decision. He needed more medical reports, more witness statements, more affidavits, more memoranda. But he never needed to see and talk to the claimant.

Kafka took in the bureaucratic process as both an outsider and an insider. He was a double agent. He was the person he detested. He knew that until he, acting as the bureaucrat, made a decision such that the injured employee, in Kafka’s mind himself, was without funds. Every day’s mail brought packets of letters importuning Kafka for the decisive action he was incapable of taking. Kafka was the faceless clerk symbolic of a process that was helpless to help anybody.

Franz Kafka, all his life, wrote stories. In his stories his characters are so poisoned by the bureaucratic secretion that they believe any governmental horror is not only possible but likely.

In Kafka’s story The Trial, the first sentence is "Someone must have been telling lies about Joseph K., for without having done anything wrong he was arrested one fine morning." That sentence, so the critic Malcolm Bradbury declared, is one of the most famous openings in all literature. Its words evoke reality and horror in the proper mixture of the real and the surreal.

Joseph K. knows he is guilty of something. Isn’t everybody? Don’t prosecutors say that the federal criminal code is so comprehensive that even a denial of guilt is prosecutable as a false statement felony under 18 U.S.C. § 1001?

What Joseph K. wants to know from his prosecutors is just what he did wrong. Despite all the procedural safeguards, he is put to death without getting an answer.

None of Kafka’s stories was published during his lifetime. Once published after his death, they became a part of the 20th-century canon. He was, according to Bradbury, "one of the most profoundly troubling, as well as the most modern, of our twentieth-century writers."

How ironical that a workers’ compensation claims adjuster who died unnoticed would be cited over and over by the courts as shorthand for the insidious viral injustice that ever threatens those who are asked to render justice.

Jacob A. Stein is a senior partner with Stein, Mitchell & Mezines LLP.