Category Archives: Defenses

DEALING WITH “THE BLAME GAME” AT TRIAL

What is the most common defense we find in our cases? It is to blame someone or something else. It might be an “empty chair” defendant or another party or more often, the plaintiff himself or herself. Dealing with evasion of personal responsibility is one of the things we need to learn to deal with in representing our clients. Let’s look at the reality of the situation.

We don’t have to look very far for numerous examples of the reluctance of people to own up to their own mistakes and to instead blame others. Look at our political scene today. Politicians always find someone else to blame for their bad conduct or mistakes. They always find scapegoats for every personal failure and make excuses by primarily blaming someone or something else. In our everyday world we see on television or in our relationships with others a common tendency to blame parents, circumstances or some other person for personal failures and problems.

What should be the situation? Well, someone has said “if you mess up, ‘fess up.”  Instead, as pointed out by the 1911 The Devil’s Dictionary “responsibility” is defined as “A detachable burden easily shifted to the shoulders of God, Fate, Fortune, Luck or one’s neighbor. In the days of astrology it was customary to unload it upon a star. And it was trial lawyer Louis Nizer who said “When a man points a finger at someone else, he should remember that four of his fingers are pointing at himself.”

What are the classic ways in which people evade responsibility for what they have done? They are:

(1)   Denial:       I didn’t do it
(2)   Distortion: It didn’t happen that way
(3)   Minimize:  It wasn’t that bad
(4)   Evade:       It wasn’t me. It was him.

Examples of refusing to accept responsibility and be accountable for one’s own actions include:

  • Adam  blamed Eve and Eve blamed the serpent
  • Hitler blamed the Jews
  • Stalin blamed Trotsky

We need to communicate to our jury what should happen when a defendant is responsible for causing injury or harm to another. Suppose a boy playing baseball hits a ball through a window of the neighbor. We would want him to go to the neighbor and admit he was responsible plus say he was sorry and offer to pay for the damage.  We don’t expect him to deny he hit the ball or blame the pitcher or other players. We want our children to be taught the importance of accepting personal responsibility and being accountable. Our entire criminal justice system is based upon personal responsibility and accountability. Our civil justice system is equally dependent upon personal responsibility for the harm we cause and accountability to make up for it.

We should start in jury selection asking about personal responsibility attitudes. The questions should be framed as “some people feel that….while others believe….. Which way do you lean, even if just a little?” Ask: “How important is it for people to simply accept responsibility for their wrong doing rather than blame someone else or make up excuses?” “How do you feel about someone who tries to avoid accepting responsibility for their actions by blaming someone else?  Why? Who else feels that way?”

I think you follow up with the same thought  in opening statement which you identify the defense for what it really is: an excuse to avoid accountability. I suggest total honesty about what the defense really is througout the trial is the most effect way to deal with this kind of excuse  making and  evasion of personal responsibility.  After all, the justice system with a jury is all about the truth and accountability.

The”this is the first time it has happened”defense

I subscribe to a little meditation pamphlet that has daily readings with Scripture quotes. This reading struck me as having application to the situation where the defendant argues they have had no previous problems. It could be a defective product where they claim no previous injuries or a street intersection or any other situation where the defense says how could it be negligence or all that bad because we haven’t had this happen before. Here’s the story in the pamphlet:

"A man was filling out a job application when he came to the question: "Have you ever been arrested.?" he wrote "No." The next question was intended for people who had answered "yes" to the previous question. it was "Why?" The applicant answered the question anyway with "I just never got caught." 

That struck me as exactly the situation in these case were the defense is claim this is the first problem they had with the product or other situation. It’s not profound, but I thought it was a clever answer to the defense.