As a trial lawyer, I am sure I have developed a slanted view of the world. For every case I file, I have probably consulted with dozens of people I have refused to represent. It does not surprise me that most of these strangers who walk into my office believe that they have been the victims of some sort of injustice and want their injuries repaired — most often with the balm of cold cash — by our legal system.
That is what we lawyers do. It continues to amaze me, though, that almost all of these people are infused by a mythical belief that the legal system works and that if a good lawyer will only prosecute their cases, Justice will work her way with the public servants who populate the court system, the truth will out, and an accurate and fair decision will be reached (and gobs of money will be paid).
The people who believe this most strongly, of course, are those who say to their lawyer at the beginning of a case that they are not after money but out to vindicate a principle and then, at the end, say that a million dollars is not enough to vindicate their principles.
The simplest aspect of this mythology is the common belief that a jury can look a witness in the eye and discern whether he or she is telling the truth. In my experience, trying to tell whether someone is telling the truth by looking at their eyes fails as often as it works, which means that as a method of deciding cases it is on par with the flipping of coins. At its worst, this belief works against those who are nervous in court, which means that it works against people who haven’t been to court much like the poor and the law-abiding, while it works in favor of people who get to court a lot, like career criminals and rich, litigious jerks.
The mythology of Justice, though, is far broader and deeper than the common and pernicious belief that all men and women are endowed by their Creators with built-in polygraphs. The people shopping for my services tend to see the whole legal system as a big Ouija Board, with unseen forces moving the hands of all the participants toward a true and just result. After they retain me, many people who hold these beliefs come to perceive that these unseen forces are at their strongest in California. I have determined this because many of my clients send me newspaper clippings of California jury awards in the zillions of dollars in wacky California cases which seem to them to be indistinguishable from their own.
Folks who believe most strongly in the mythology of justice tend to tune out when I try to explain little things like the rules of law which will govern the outcomes of their cases. They tend to regard these things as trivial technicalities which the Goddess will inevitably pare asunder with her great sword as she carries the deserving to the great promised land of Reparation.
Some of the many adherents of the mythology of justice no doubt believe that it is the hand of God at work in human affairs that causes all of our court cases to come out right. Most, in my experience, have not thought about it that deeply. They just believe.
This state of affairs is just terrible. It means that a lot of people who have been wronged (or are being wronged) and believe that an invisible all-powerful force for justice lives in our legal system tend to see litigation as a first resort when it should be seen as a last resort.
The truth is that the legal system resembles a roulette wheel far more closely than it resembles an Ouija Board. The element of chance is present at almost every stage of the proceedings and often the result is random.
Take your typical John Q. Justice-believer who encounters a cop having a 50-year-flood bad day, gets beat up, and want to sue for damages, for example. The first thing John has to do is to find a lawyer who will handle his case to near-perfection (for there are many traps for the unwary along the road to recovery from the government). Whether he can find such a lawyer is a crapshoot. The only information readily available to him about lawyers in his area will probably be what the lawyers say about themselves, either in the yellow pages or in lawyer-referral services. John Q. may be fooled, because there is very little to stop a lawyer who has handled and lost one police-misconduct case from saying the same things about himself as the lawyer who has won twenty such cases in a row at trial. His best chance is to find a lawyer through referrals from other lawyers. Litigators know who is winning what kinds of cases and are pretty good about sending clients along to the experts. If, though, John Q. crutches into the office of a lawyer who is willing but not really able to handle his case, he is in bad shape. A justice believer really doesn’t want to hear about the rules of law that apply to his facts, the strengths and weaknesses of his claims, or the record of the lawyer he is talking to. He want to hear a lawyer say, “YOU HAVE BEEN WRONGED AND I WILL FIGHT FOR YOU.” This is step one on the road to Armageddon.
So, it is largely a matter of chance whether John’s allegations of fact arrive in court with the most advantageous legal theories attached to them and the available evidence marshaled behind them. And John is not particularly concerned about legal theories or evidence. He believes that justice will emerge, and he is too busy sending his lawyer clippings about the Rodney King settlement to think about prospective witnesses.
On the other side is a defense lawyer who is getting paid by the hour and has a crap-table mentality. She knows that the more bets she places, one after the other, the more likely she is to hit the jackpot of a dismissal. And the system offers her the opportunity to request that the judge decide the case in her favor, months before it ever gets to the jury, on legal grounds. These requests for dismissal fall into two classes. The defense can file a motion to dismiss, trying to get the court to hold that the plaintiff has no law to support his claims, or a motion for summary judgment, trying to get the court to hold that the plaintiff has no facts to support his claims. Neither one of these motions is supposed to leave much room for the judge to exercise her subjective discretion, but they do, and this introduces another important element of randomness into the fate of John Q.’s case.
Where a jurisdiction has more than one judge, cases are usually assigned through some sort of lottery system, in many cases, quite literally by drawing judge’s names out of a hat. In Johnny’s police brutality case, does it make a difference whether he draws a judge whose father and grandfather were police officers and who just spent a hundred thousand dollars on re-election television commercials showing her hugging cops and slamming jailhouse doors or a judge whose qualifications for her appointment to the bench (by a Democrat) consisted in high-profile suits against the government for the A.C.L.U.? You bet it does. Does the invisible hand of Justice level the scales for the little guy even in Judge Rottweiler’s court? Dream on.
The Court of Appeals? More of the same.
But what if Lady Luck is in Johnny’s corner and his claims make it to a jury? Isn’t the jury room the citadel of the mythology of justice, where the Goddess really struts her stuff?
Sometimes, yes. Sometimes, even enough to make a believer out of me. I believe that juries are a lot fairer than judges. I even believe that they try a lot harder to be fair. I believe that every step away from pure trial by jury is a step in the wrong direction and that every alternative system is a lot worse. But juries make mistakes all the time.
Like judges, juries are selected at random. Like judges, jurors come with all sorts of secret and not-so-secret emotional baggage, prior beliefs, and outright prejudices, most of which don’t see the light of day and wouldn’t amount to legal grounds for disqualification if the did. Does it make a difference if John Q.’s jury contains just one strong-willed, eloquent, personable member who forgot to mention that her son is a cop, or one who knows that police beatings occur because he saw one administered to his son? Sure it does. The random make-up of the jury will often control the result in a close case and sometimes in a not-so-close case.
I recently defended a hard-core erotic videotape against an obscenity charge. The jury took less than half an hour to come back with a not-guilty verdict. In the same courtroom, one of Wisconsin’s best trial lawyers later defended a videotape any fair person would have to say was less offensive than mine — mine had urination — against the same charge and lost. Will you believe me if I tell you that these different results occurred because of my articulate arguments, my razor-sharp cross-examination, my veritably Spockian logic? If you will, I have a whole river full of bridges you might be interested in. No. We know why the verdicts were different. On my jury, thanks to the luck of the draw, every single member had seen adult videotapes and almost all had been to adult stores like my client’s. The second jury had several members who had neither seen nor been. That and only that was the difference and it had nothing to do with justice, with who was in the right, or with who really deserved to win or lose. For all the sense these two verdicts made the defense lawyers could simply have cut cards with the district attorney.
How does a lawyer look at the value of a legal claim for damages consigned to such a system? She takes the probable result of a jury win in dollars, reduces it to account for the probability of losing the jury trial, reduces it again to account for the probability of losing a motion for summary judgment, again to account for the possibility of losing a motion to dismiss, again for the very real chance that the courts or the legislature will change the law in a way that destroys the value of the case while it is pending, and one last time for unforeseen factors like appeals and the demise of essential witnesses. How accurate can such a prediction be before she knows who the judge or jury will be? About as accurate as a February Super Bowl prediction.
How should a client look at consigning a case to a lawyer? First, shop well. Luck may control the result but luck favors the able. Then, the client should take the value of his case and any cash he leaves with the lawyer as a retainer or deposit against expenses and kiss it goodbye, as he might kiss money he would give to be taken along on a Las Vegas vacation by a friend and placed on a favorite number at the roulette table. Then, over the ensuing weeks and months, he should provide the occasional co-operation his lawyer requests, but otherwise he should GET ON WITH HIS LIFE. He should live in the present moment, not in that awful moment in the past that gave rise to his case. If possible, his financial plan should not depend on any recovery from his case at all. Then, if his investment is multiplied, it should be celebrated like a winning lottery ticket, not accepted with the smug satisfaction of a believer who knew all along that justice would triumph. It often doesn’t.