WHAT SHOULD A PLAINTIFF’S LAWYER BE LIKE & WHAT IS THEIR ROLE?

Indulge me with a little freedom of thought which lacks much practical value. I’ve been thinking about today’s television compared to my childhood of radio drama which got me to thinking about  what we are supposed  to be as  plaintiff’s trial lawyers.

First, I think we are supposed to be women and men who are warrior’s for justice. That brings me to the lyrics by Jim Croce:

“You don’t tug on Superman’s cape you don’t spit into the wind you don’t pull the mask off that old Lone Ranger and you don’t mess around with Jim”

But, I think that’s exactly what we are supposed to do as plaintiff’s  trial lawyers. Contrary to conventional wisdom a plaintiff’s trial lawyer should be willing to do all of the things Jim Croce’s lyrics warn should be avoided. It’s our job and our professional calling to have courage to do what is right even if unpopular and frightening. We were not called to seek to be loved by everyone. Respected, we would hope and feared perhaps but not called upon to win popularity contests. We need to have the courage to risk displeasure from a judge, if we are justified in our actions. We certainly should not be afraid to invoke the displeasure of our defense opponent nor the  displeasure of  others if we are right in our conduct.

For us plaintiff lawyers  Art Buchwald painted our role in humorous prose: 

It is an honorable calling that you have chosen. Some of you will soon be defending poor, helpless insurance companies who are constantly being sued by greedy, vicious widows and orphans trying to collect on their policies. Others will work tirelessly to protect frightened, beleaguered oil companies from being attacked by depraved consumer groups. [Commencement address, Tulane University School of Law]

Scripture has much to say about the role of the advocate. For example, from Isaiah 1 we read: “Learn to do right; seek justice, encourage the oppressed, defend the cause of the fatherless, plead the case of the widow.”

Probably the best known historical description of an advocate was by Henry Lord Broughman in 1838 regarding his politically dangerous role as the lawyer for Queen Caroline. A German princess, she had married English Prince George in a political, but unhappy marriage. George wanted to divorce her so adultery charges were contrived against her. Broughman  agreed to defend this unpopular foreigner in a “kangaroo court setting” where  the King controlled the outcome in his favor. Braughman said this in a speech later about being an advocate: 

An advocate by the sacred duty which he owes his client, knows, in the discharge of that office, but one person in the world, that client and none other. To save that client by all expedient means—to protect that client at all hazards and costs to all others, and among others to himself—is the highest and most unquestioned of his duties; and he must not regard the alarm—the suffering—the torment—the destruction—which he may bring upon any other. Nay, separating even the duties of a patriot from those of an advocate, and casting them, if need be, to the wind, he must go on reckless of the consequences, if his fate it should unhappily be to involve his country in confusion for his client’s protection.”

This idea is reflected, in a way, by those old radio serials.  There was a radio and later a television show called Paladin. It featured a good guy gun fighter who lived in the Carleton Hotel in San Francisco in 1875 who was a gun for hire. His card read: “Paladin Gun for Hire. And, also on the radio and later television was the program Gunsmoke staring Marshall Matt Dillon who kept law and order in Dodge City.  In the right ethical sense, that is our role. To be ready to standup for anyone in a just case irrespective of the popular feelings about it. We weren’t meant to be silk stocking lawyers only representing the rich and powerful. That’s not our calling. We are the town marshal charged with keeping the peace and seeing justice prevails.

It also occurred to me that we may not think of ourselves as Superwoman or  Superman, but that’s  actually what is  expected of us as advocates.

When I was a child we didn’t have television. We had radio. There were many radio serials of adventure that were on the radio each week after school. Why, for ten cents and a box top from Kellogg’s Pep cereal you could get a Superman Crusader ring with a hidden decoder. And the announcer would say: “Faster than a speeding bullet! More powerful than a locomotive! Able to leap tall buildings at a single bound! – the adventures of Superman!” Then  there was Jack Armstrong, the All American Boy. We also had The Lone Ranger and Tonto. The announcer would lead off with:

Hi-Yo, Silver! A fiery horse with the speed of light, a cloud of dust and a hearty ‘Hi-Yo Silver’… The Lone Ranger! With his faithful Indian companion, Tonto, the daring and resourceful masked rider of the plains led the fight for law and order in the early Western United States. Nowhere in the pages of history can one find a greater champion of justice. Return with us now to those thrilling days of yesteryear. From out of the past come the thundering hoof-beats of the great horse Silver. The Lone Ranger rides again.”

It turns out that as fanciful as these radio characters were they were images of what we as plaintiff trial lawyers are expected to be: The defender of those in need, the weak and oppressed. The champion of justice. The one who rights  the wrong. To do that we need to be authentic and real people.  As the Sunday cartoon character of long ago, Popeye the sailor  man, used  to say “I yam what I yam and that’s all what I yam” And, while  we are quoting fictional  characters it was Tarzan who said  “Teach me to speak the language of men.” We too need to be who we are and to learn to communicate in ways our juries can understand.

So, that’s my description of the role of a plaintiff’s lawyer. I admit there’s not much practical help here, but I had fun thinking about the adventures of imagination old time  radio brought to children back when I was a child  which is a very long  time ago.

THE POWER OF IMPRESSION

On January 14th  the New York Times published an interesting article by Sue  Shellenbarger about appearing to be an intelligent person. I was once again struck by the fact of how powerful our impressions are and even more than our rational analysis. The article  discussed research about how people form an impression about how intelligent another person might be. It turns out things we do to  promote an impression of intelligence  may do that or they may do the opposite of what we intended. In general, things that promote intelligence include showing self-confidence, speaking clearly and smoothly, and responding thoughtfully to what others are saying.

Not surprising, one of the strongest signs of intelligence is looking at others when speaking to them or when listening to them speak.  Yes, that is pretty obvious, but have you watched lawyers in jury selection looking down at their notes while the juror is speaking to them? It is far too common.  The  reaction of the juror is the same reaction you have when you are talking to someone at a social function and they are looking over your shoulder while you are talking.

In 2007 a psychology study at at a university in Los Angeles involved videos of participants acting out efforts to be seen as intelligent. The videos were then watched by others who evaluated how intelligent they thought the subject in the video was.  People who were trying to look intelligent used some common behaviors. These included looking at others while listening or speaking, sitting up straight, putting on a serious face and avoiding gestures, such as touching their hair or face. But the study showed that only the first two were really effective in creating  an impression of high intelligence from the people watching the videos. The primary factors were looking at others while listening or speaking and sitting up straight.

The people watching the videos also gave higher IQ ratings to those who appeared more relaxed and confident. Having a self assured expression rather than a poker face, speaking clearly in a pleasant, expressive voice, with gesturing, nodding and being engaged in the conversation resulted in higher IQ ratings by observers of the videos. Note, that these are all signs of focusing on the other other person and really listening to them.

Other stereotypes about intelligence had an impact on impressions as well. Wearing eyeglasses gives an impression of being more intelligent according to a 2011 study. Using a middle initial makes people expect a more intelligent person. In another study middle initials were linked in many people’s minds to higher social status and education.

What about lawyers who love to use big words and pretentious language to show how intelligent they are? In a 2006 study it was found that people who use long, complicated sentences and big words are seen as less intelligent, not more intelligent. In fact,  as  soon as pretentious language begins to  interfere with the other person’s ability to understand and communicate with you, the listener has an impression you are less intelligent according to research. Lawyers should ve keenly aware of this fact. Too many lawyers like to use legal jargon, medical terms or big words to show off how bright they are or how well they know the subject. However, when a lawyer or a witness does a poor job of making things simple and clear to the jury, the jurors do not blame themselves for not understanding, they blame the speaker. First, they make an effort to struggle to understand what is being said, then become frustrated and give up. At that point they stop trying to understand and become very annoyed with the speaker whether the lawyer or a witness. They never blame themselves for not understanding. They blame you because if it is the  witness they don’t understand they blame you for making it too complicated.

What about the most characteristic thing lawyers do: talk too much? People who talk too much and too loudly are seen as someone who doesn’t know what they are talking about and hope that no one will notice. It is also seen as a sign of insecurity. Lawyers talk too much and too loudly most of the time. You can pick  a lawyer out at a resturant or social setting because they are talking loudly and talking too much. In trial, they talk far too much  and in the process are seen  as not knowing what they are talking about.

Appearing calm and confident demonstrates intelligence. The 2007 study indicated that people who move around faster than others are rapid in their speech or reaction to events are seen as less intelligent. The cool calm lawyer in the courtroom is seen as more intelligent than the lawyer who is frantically reacting to everything. One year when I was teaching at the Spence Trial College, Gerry  Spence had a wonderful expression for how a lawyer should act in the courtroom. He called it “watchful waiting.” When someone  is excitedly talking,  you pause, wait calmly and watch until it is over. Then you calmly respond. That’s watchful waiting.

When we compare these studies to the principles outlined by Dale Carnegie in the 1930s about “how to Win friends and influence people” we see that  his principles are as valid today as they were when he promoted them:

  1. don’t criticize, condemn or complain.
  2. Give honest, sincere appreciation
  3. arouse in the other person and eager want
  4. Become genuinely interested in people
  5. smile
  6. remember that a person’s name is to that person the sweetest and most important sound in any language
  7. be a good listener. Encourage others to talk about themselves
  8. talk in terms of the other person’s interests.
  9. Make the other person feel important but do it sincerely

Apply these principles and you will be a better trial lawyer.

BIAS & PROSPECTIVE JURORS

I have long been a fan of the website The Jury Expert:  http://www.thejuryexpert.com/  One of the research papers it has published is: “The Ubiquitous Practice of ‘Prehabilitation’ Leads Prospective Jurors to Conceal Their Biases.” authored by Mykol Hamilton, Emily Lindon, Madeline Pitt, and Emily Robbins from Centre College. This article explores juror bias and focuses on the effect of efforts to emphasize the significance of  lack of bias by the judge and attorneys. It primarily examines the effectiveness of the emphasis on being a fair juror as it impacts the jurors admitting they have a bias.

As to bias generally in jurors, it has been clearly demonstrated that where a strong bias exists, human efforts to not let it influence us are utterly impossible. Yet, many trial judges and appellate courts appear believe that it can be done. Hence,their unwavering confidence that they can rely upon a jurors affirmative response to their question: “Can you set that opinion aside if I instruct you on the law and consider the facts objectively?” Lawyers also would like to believe that they can “re-educate” the prospective juror to see the error of their bias and  then can rely upon the jurors assurance they can now be fair. All of these beliefs are simply invalid.

According to the law the sole legal purpose of voir dire is to expose bias in prospective jurors which would prevent them from being a fair and impartial juror. The article cites research which showed that instructing jurors they must set aside any knowledge, experiences, attitudes, or beliefs that might bias them is asking them to do the impossible. The article notes: “humans are not robots. We are notoriously bad at preventing our biases from influencing us. Furthermore, we strongly, but erroneously believe that we can control our biases and are likely to tell judges and attorneys that we can be fair and open-minded even if we cannot.” Some of the other conclusions of the article are:

  1. Most people are totally unaware of how much their attitudes affect their behavior and have a bias line site
  2. People are unsuccessful in setting aside bias even if they are aware of the bias. The bias operates unconsciously to influence us.
  3. Even if the prospective juror is aware of their bias unless they confess it there is no basis for a challenge for cause. Humans don’t want to admit they are imperfect and research shows that attorneys and judges are not good lie detectors in being able to tell those who claim they are impartial when they are not.
  4. There is a factor of community pressure from the other jurors and the pre jury lecture on the need for fair  jurors. It puts pressure upon the prospective jurors to give the answer that is expected from them about existing biases and to deny their existence.
  5. Pressures to give the expected answers about bias exist when the prospective juror is seated. They see the judge on the bench, the court reporter taking everything down, a room full of lawyers all focused upon the jurors in the box. This puts pressure upon the juror to give the “right” answer

The authors of the article made a content analysis of some 600 voir dire interviews in 11 high profile cases in different states. They studied transcripts. recordings and videos when available of the jury selection process. They looked for the discovery of bias. They reviewed the instructions given by judges to prospective jurors and comments by the attorneys about fairness and  bias expected.  Their conclusion was that efforts by the judges and and attorneys  simply leads prospective jurors to temporarily suppress their bias into falsely claiming they had no bias. They found that prospective jurors rarely admitted to existing bias. Their conclusion was that the lectures and instructions  to the jurors about the  need for unbiased jurors actually resulted in the jurors being less likely to acknowledge known bias.

The authors suggest a change in how the judges instruct jurors about this matter  emphasing the importance of honest disclosure.  For example, “While you have been lectured to death on the importance of being objective, probably to the point where you fear admitting any negative feelings, let me assure you that the goal is to understand your true feelings and not to bully you into giving an answer you think we want to hear.” They suggest  indirect inquiries to explore the bias issue. For example, in a high-profile case:  “In talking to friends and family about the case, have you gotten the feeling that they have formed some opinions about the case?”

In a comment to the article Charli Morris, a juror consultant, noted that the laws’ idea of an ideal juror was one who had no knowledge of the facts and no interest, financial or otherwise, and the outcome of the case. What the parties are entitled to is a fair trial. They deserve fairness from the court, from counsel, and from the jury. The goal is to eliminate arbitrariness or randomness  in a trial. To establish the bias for a challenge for cause, the author suggests this approach:

  1. Establish the extent of the jurors potential for partiality. This is done by exploring sufficiently the dimensions of the jurors bias or inability to be fair.
  2. Quantify it. It’s important to establish the extent of the bias. Words like “definitely” for “very” or “strongly” are words which jurors are reluctant to adopt because it makes them appear to extreme or close minded. Instead a 10 point scale is recommended to quantify the degree of the bias
  3. Get it all down. The author recommends a methodical slow process so that the essential words are recorded and aware by the judge.
  4. Add it all up. One then should deliver a narrative of the school of the inability of the juror to be fair and to make a good record on appeal.

I think this suggestion is technically correct and I would add that my personal view is that my goal was not to disqualify jurors for cause. I accepted that every juror would  have strong bias agreement about tort reform attacks on cases just like this. I accepted  the fact that they would all have a bias about trust me and my client since  we were wanted a money verdict from them. I assumed most would have strong beliefs  and values that might run counter to the concept of this kind of case. I assumed they would search their long term memory for personal experiences which they would  try to apply to this case to assist them in arriving at a decision. I knew that it would  be impossible to eliminate everyone with a genuine bias. I believed it conveyed  the wrong message to be cross examining them for  reasons to challenge them. I assumed that some would resent my challenge to a  fellow prospective juror and  if I failed in the challenge I would have to use a limited personal right of excusing them. “Don’t  strike the emperor unless you kill him.” is a valid proverb.

Consequently, my viewpoint was it was better to first identify with their beliefs  and values. Join their tribe as the first  step. For example: “I’m not going to ask you how you feel about cases  like this because I think we all  agree – How  many of you think their  are  too many frivilous lawsuits, brought by greedy lawyers asking for money damages? raise  your hand” Before asking to raise their hand, I held my hand up first.

The second step is to distinquish your case. “Is  it possible, do you think  that their  might be valid legitmate lawsuits filed by deserving people  and represented by honest  lawyers?” Each of these were followed by discussion. If their were the  committed biased juror on the panel I was unable to gently talk out of serving my steps for setting  up disqualification was:

  1. Fully identify the nature of the bias without arguing or attempting to educate. Full, nonjudgmental acceptance of the bias.
  2. Establish it was a reasoned  out conclusion well grounded  in  their  mind. “I suspect you’ve  thought this out pretty thoroughly? This isn’t something that just came to you this morning but is something you have felt for  some time?
  3. Establish that the juror isn’t going to change their mind. “I doubt I could talk  you out of this even  if  we had the time to discuss it? You feel strongly  enough about this and  are honest  enough about your feelings  I expect that even if the judge were to ask you if you could set it aside and follow the  law you would feel compelled to honestly say you couldn’t?” (Note the importance of innoculating the  juror from the judge who will immediately try to talk the juror into saying in spite of the bias they would  follow the law).
  4. Asking the  juror to voluntarily step aside before making any challenge. “You know  there are other cases going  on here, I gather you would feel more comfortable serving on a case other  than this  one in light of your honest feelings we’ve discussed. Would you feel better asking the  judge to be excused from this  case?”

Bias is bias and  it rests in the unconscious more than the conscious. That’s why the obvious racist can honestly say they have no bias against minorities because at  a conscious level that’s really what they believe. Getting jurors to identify bias under court room conditions is even more difficult. This is a great challenge for judges and for  us.