Category Archives: Advocacy

WHAT ABOUT PROFESSIONAL CIVILITY IN THE LAW?

The subject of professional civility has been widely discussed and promoted in the past few years. Some states have incorporated the requirement in their oath of attorneys. All of the states  have emphasized it in recent years.  The United  States Supreme Court, the ABA and even The National Judicial College promote the principles of civility. Here, for  example,  is part of the language of the core principles from the Judicial College written for judges  nationally:

“Civility encompasses a form of courtesy and behavior and speech that is essential to the role of courts in a democratic society. It is therefore, important that all involved with the court – judges, attorneys, jurors, witnesses, court staff, parties – act with civility to ensure the fair administration of justice and resolution of disputes… Civility in action and words is fundamental to the effective and efficient functioning of our system of justice and public confidence in that system.”

With this in mind let us consider the appropriateness of language of lawyers who disagree with opinions of appellate courts.  Here is a collection of lawyer’s written comments about holdings of appellate courts with which they disagree. What do you think? Is this language in compliance with the promotion of professional civility in language? Would this language merit a reprimand for professional lack of civility in your view?

  • “But, the court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining to be memorable passages of the opinion is a candid and startling assertion…”
  • “But, what really astounds is the hubris reflected in today’s judicial Putsch is…”
  • The opinion is couched in a style that is as pretentious as its content is  egotistical. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the court to do so.”
  • “Of course the opinions showy profundity’s are often profoundly incoherent.”
  • “The world does not expect logic and precision in poetry or inspirational pop philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this court’s reputation for clear thinking and sober analysis.”
  • “Today’s interpretation is not merely unnatural; it is unheard of.”
  • “…The court comes up with argument after feeble argument to support its contrary interpretation. None of this tries to come close to establishing the implausible conclusion that…”
  • “The courts next bit of interpretive jittery – pokery involves other parts of the act…”
  • “For its next defense of the indefensible, the court turns to…”
  • “Some might conclude that this loaf could have been used a while longer in the oven. But that would be wrong; it is already overcooked. The most expert care in preparation cannot redeem a bad recipe. The sum of all the courts nonspecific handwaving is that this law is invalid…”
  • “It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement… is not at issue here – when  what has preceded that assurance is a lecture on how superior the majority’s moral judgment is…”
  • “The only thing that will confine the court’s holding is that sense of what it can get away with.”
  • “But, the court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes with a fair  defeat.”
  • “The court tries to palm off the pertinent statutory phrase as in artful drafting.”
  • “The court is eager – hungry – to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against the judge’s intrusion into their life’s.”
  • “That is jaw-dropping. It is an assertion of judicial supremacy…”
  • “There are many remarkable things about the majorities merits holding. The first is how rootless and shifting its justifications are.”

Well,  what do you think? In your state, if you wrote these statements in a motion for reconsideration or a blog or a letter to the editor do you think there would be repercussions? Or do you think that at a minimum you would be regarded by fellow lawyers and the judiciary as an ill mannered radical who needs to have  retraining in professional conduct and words?

These are all statements of Justice Scalia in two recent dissents as a Justice of the United States Supreme Court. He is a member of this nation’s highest court standing  for  principles of  rational discussion and civility so  how can he justify language  like this from his marriage equality dissent:

“I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph story to the mystical aphorisms of a fortune cookie.”

Justice Scalia has proven himself to be nothing more  than a rude and  arrogant bully. He has shown that he  takes  pleasure  in his lack of professional manners in how he treats lawyers who appear before the Court. He has  never seen a conflict of interest  in his relationships and judicial role. He has  repeatedly demonstrated his unrestrained bias in his judicial rulings and he  has continuously attacked his fellow Justices in  his unprofessional ridicule contained  in his  writing.

What he did correctly report in his  dissent of the ruling in the  marriage equality opinion  was how unrepresentative some members of the court are  to the people of the United States:

“…and to allow the policy question of same sex marriage to be considered and resolved by a select,  patrician, highly unrepresentative panel of nine is to violate a principal even more fundamental than no taxation without representation: no social transformation without representation.”

This court,  as  it is presently constituted, is not representative of the people because of biased and opinion members like Justice Scalia, Justice Alito and Justice Thomas. That I do agree with him about.

RALPH WALDO EMERSON & TRIAL LAWYERS

I realize that my most recent posts have departed from my usual offering of practical advice regarding plaintiff trial practice. This post is equally lacking in practical application to trial, but I think worth considering. I’ve been thinking about what are the fundamental qualities of a great trial lawyer and it seems to me that it always starts with who we are, what we believe and what we think. Everything else are learned attributes or techniques. The most important thing we need to do is to know ourselves. That was the teaching of Plato. His pupil Socrates said “the unexamined life is not worth living.” Shakespeare has Polonius giving advice to his son “This above all: to thine own self be true, and it must follow, as the night the day, Thou canst not then be false to any man.” Learning who we really our is fundamental to personal improvement

I also think we should consider some historical ideas about living our lives which impact us as advocates for the harmed and those in need of representation.

For example, Ralph Waldo Emerson, wrote an essay, “Compensation” in which he said each person is compensated in like manner for that which he or she has contributed.  This “law of compensation is also called “the law of cause and effect” because he argued that the entire system of the world is represented in every particle of its parts. Every excess causes a defect and every defect an excess. “For everything you have missed, you have gained something else and for everything you gain, you lose something.”

For Emerson “The dice of God are always loaded. The world looks like a multiplication table or a mathematical equation, which turn it how you will, balances itself.” He believed cause and effect cannot be severed. That meant, he said, “You cannot do wrong without suffering wrong.” On the other hand, love and you shall be loved.” For Emerson give and you shall be given.  Wrong others and you shall receive the same.

Emerson’s law of compensation was that you can never be compensated in the long term for more that you contribute. If you want to increase your compensation, you must increase the value of your contribution.

Closely aligned with Emerson’s ideas was the concept of “the law of attraction” based upon positive mental attitude. Napoleon Hill published two books on this idea, the best known of which is “Think and Grow Rich” published in 1937. He believed in the importance of controlling one’s own thoughts in order to achieve success, because positive thoughts attract positive results. More recently Norman Vincent Peale’s book “The Power of Positive Thinking” promoted the same idea and remains a best seller. The most powerful force we have is what we say to ourselves and believe.

In fact there is research involving groups of people which have tested the impact of positive thinking on the brain. It showed that positive emotions broadened a sense of multiple possibilities and opens the mind to more options. In addition, had demonstrated an enhanced ability to develop resources.

Even in the New Testament we find passages about what has been called “the law of abundance,” that is, the idea that by giving you will receive and the more you give, the more you will have abundance. We read in Luke: “Give, and it will be given to you. A good measure, pressed down, shaken together and running over, will be poured into your lap. For with the measure you use, it will be measured to you.” And in Mathew we read: “Whoever has will be given more, and they will have an abundance. Whoever does not have, even what they have will be taken from them.”

While televangelists like to utilize these passages to promise donors a reward for supporting their cause and motivational speakers promise benefits based upon some of these ideas, there is a genuine benefit from reasonable application of the concepts.

There are hundreds of books dealing with self-improvement and even more “rules” that are advocated for accomplishing it. A few worth considering among a whole lot more include these ideas from Neuro Linguistic Programing principles.

  1. Be truthful and honest. Speak and act with integrity.  Be who you really are & not pretend.
  2. We already possess all the resources we need to succeed and achieve our goals. We just  need to learn how to unlock them
  3. The meaning of communication is not what is said, but what was understood
  4. You are in charge of your mind and therefore your life
  5. When things get difficult, remember: there is no failure, only helpful feedback.
  6. If one person can do something, we can learn to do it too by modeling the  thinking and behavior
  7. The mind and body are part of the same system and one effects the other.
  8. Every behavior comes from a positive intention. Look behind behavior to the intent
  9. The map is not the territory. We don’t respond to the facts, but rather our mental picture of it. We need to revise our mind to the reality of the world as it exists.
  10. People choose what they believe is the best choice. Choices are based upon experience. More  and  better experiences allow for more choices

RULES FOR PLAINTIFF TRIAL LAWYERS

Today I want to share some random rules of  plaintiff trial work that are not all connected, but, for me at least, have meaning.  They include some of these  ideas:

  • Gerry Spence once shared with me the phrase “watchful waiting.” By that he meant the idea of calmly listening to another argue or make personal attacks on you and waiting patiently without interrupting before responding. And, when responding, doing so in a measured calm manner. Ernest Hemingway wrote the classic:  Death in the Afternoon about bullfighting. The matador’s expression for this idea in bullfighting was “to watch them come.” The idea of developing the skill to watch the bull as he charges with no thought except to calmly see what he is doing and make the moves necessary to the maneuvers you have in mind.  Hemmingway writes that to calmly watch the bull  come is the most necessary and difficult thing in bullfighting. We need the same skill as  trial lawyers.
  • George Lakoff  has pointed out, in his book The Political mind, that all trials are actually about  values. He argues that a  trial is really  a morality play. Jurors decide issues based upon their values, their idea of doing the right  thing and most, if not all, of that process is done subconsciously. Appeal to common values for good in your approach for trial. Show the importance of a plaintiff’s verdict beyond your client’s concerns and how it will benefit them.
  • Frank Luntz in his classic book Words that  Work, says we decide issues, form opinions and impressions  based on how people look; we decide based on how people sound we decide based on how people are dressed. We decide based on their passion. Contrary to our  law  school teaching, it is not logic at work nor weighing the evidence that results in our impressions and decisions. It’s  how we view the situation. There is a big difference between being fully aware of the impression we, our witnesses or our evidence is making from intellectually viewing it a logical fashion.
  • Malcom Gladwell in his  book Blink says 90  – 95% of our choices and decisions are made at an unconscious level by instinct. Think about that. Instead of approaching trial like an intellectual scholar relying upon jurors  using logic and careful evaluation, accept the reality of how our human mind fuctions. Try your cases to the reality of the situation and not myths. The undenial truth is:  a trial is a battle of impression and not logic
  • Certainly there is truth to the concept of the primative brain controlling our mental evaluations and  that survival is the most basic motivator  of our primative brain.  Furthermore, it operates  at a subconscious level without our control. Research shows  that if survival is not at stake the reptile brain goes into autopilot but as soon as survival is at stake the brain shifts into survival mode and nothing else matters. Therefore, if there is a perceived danger to the juror, his or her family or their community the survival instinct is involved. Safety increases survival chances. A jury verdict which promotes a change for safety promotes survival. Don Keenan likes to say that the justice system is a public safety system. An important question  is how the defendant’s conduct is a threat to the juror if allowed to go unpunished.
  • Rules are important because they relate to survival. When we know the rules we are able to navigate through dangerous situations. When we break the rules we endanger ourselves. When other people break the rules they endanger us too. That’s why conservatives and people generally think like a “strict father” – rules must be obeyed like them or not and there is a reward and punishment which must follow. For that reason it is also a common viewpoint that making people accountable for breaking rules acts to enforce them  which, in turn, protect all of us. Rules are enforced by verdicts against wrongdoers who  violate them. But, it  is important to  remember the only rule breaking that counts are those from wrong motives. All other “accidents” or ordinary “negligent” acts are forgiven and do not merit punishment. The most important issue is “why.” Why was the rule broken?
  • The main point to keep in mind is that the question in the minds of the jurors as they wonder what the case is about, is not: helping your injured client out, sympathy or applying the evidence. The primary question in the minds of the jurors is: How will this affect me? What’s this case got to do with me or my family or my  immediate community? Will what happens in this case impact  me? Since that is their real concern you need to address it by showing the benefit of a plaintiff’s verdict on them, their family or their community. In non punitive damage cases there are many ways of doing  this. Keep in mind  the common values of most jurors: (1) They want to be part of something important. They want to make their jury service mean something (2) they have a need to do the right thing, as they see it with their value system (3) they want to feel good about their service and the result. Tie these motivators to their self centered motives and the concepts prevously discussed for the best way to try cases.