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Friday
Jul192019

The Nonsense Factory by Bruce Cannon Gibney 

An appellate colleague, who has been practicing for over 40 years, told me of her upcoming oral argument, a right guaranteed to litigants under the California Constitution. She seemed resigned to the process, “Oral argument is a joke. The Court rarely changes its mind, much less listens to what I have to say. It’s simply done to make the public believe they are really listening.” After spending so many years in litigation, I have to admit that I am often frustrated and pessimistic about getting justice for my clients.

Sometimes the end is the best place to start.  In the final chapater of his book, The Nonsense Factory, (published in 2019 by Hachette Books), author Bruce Cannon Gibney notes, “Law cannot survive when people cease to believe in it. Unfortunately, few legal institutions seem moved to address the decay of civic faith.” That loss of faith can be traced back to systems that make or break laws and law schools that accept too many students so they can pocket huge tuition fees. But do they prepare their students to be attorneys or even take the Bar exam? If they did, perhaps students wouldn’t experience such a high failure rate or require the service of companies that focus on preparing graduates to take the Bar. The high cost of law school almost mandates that students take high-paying corporate jobs, if they can get them at all, to pay their student debt. Gibney notes the “troubling levels of employment,” including the lack of training and the failure to consider the clients’ perspective. To make it worse, law schools don’t actually teach students to practice law in any particular state.

Over the course of my life, I’ve witnessed this decay. Parties do not usually contact me until the end of a case when an appeal might be needed. If this was their first encounter with the legal system, they often express disillusionment over the failure to receive justice for their case. I would often reply that “consider yourself lucky if you get justice,” but really, should luck enter into it at all?

That disillusionment rose to a group experience after the O.J. Simpson murder trial or after watching acquittal after acquittal in police shootings involving victims of color. Gibney traces that disillusionment from the justice system, our method of selecting judges, costs of litigation and even the jury system itself. Don’t assume that there is more justice in our arbitration system, which favors big companies and repeat customers over a single use. 

At the highest level, it is hard to convince citizens of the impartiality of Supreme Court justices who regularly split along partisan lines. One would be crazy to argue that personality and politics don’t enter int a judicial decision. So, why would we think the situation would be any different at the lower level where litigants face enormous legal fees and costs, the need to hire experts, and decisions by jurors who don’t really want to sacrifice their time hearing a lengthy trial? Trying a case is simply not practical in these times, which is why so many cases are settled before trial. 

That disillusionment soon spread to Congress as their inertia and partisanship was publicly observed. As Gibney points out, the favorable opinion of Congress is very low. People have little faith that the Congress will get anything done, no matter who is in power. Gibney writes, “Congress is a sour joke, widely loathed. Partisan preference plays a role, but citizens also sense that legislators cannot do their jobs.” A case in point, the failure to come up with a comprehensive medical insurance scheme that will allow the poorest among us to receive adequate medical care. Or what about our immigration scheme?  The public is often surprised to learn that a member of Congress does not even read a bill or fails to show up for hearings. Gibney extends that inertia to bureaucracy, which is often headed by partisan choices. 

Of course, the executive branch is not spared in Gibney’s exhaustive research. This one is especially susceptible to pessimism, if not national depression. While no one would argue that Trump is a typical president, our faith in government has been severely tested as we have watched our relationships with allies to sink to a new low and face ongoing threats of war. We have a president that has more admiration for bullies and dictators than he does for democracy. 

But Gibney does not leave us without hope. He claims, “At some point, the public will decide that legal dysfunction has risen to an intolerable level, and shift from polite requests for incremental reform to adamant demands for fundamental change.” Isn’t that what we have been hoping for with each election?  Even though our last choice has failed miserably in this regard, Gibney does find some ways to pursue reform, such as by serving on juries, donating to solid candidates, advocacy and activism. We can’t afford to sit on the sidelines.

Monday
Jul082019

Find a good lawyer, get through it as quickly as possible, and then avoid litigation like the plague

Several years ago, I wrote an e-book, How to Find and Keep a Good Attorney.  It was written in response to questions I received from people who were searching for a good lawyer or were having problems with their current one.  Based on the dissatisfaction of so many people, I thought my new book (my third!) would fly off the shelves.  (Of course, I meant this literally as e-books are not on physical shelves and do not fly anywhere.)  Based on the price of $4.49, I estimated it would take me a lifetime to accumulate enough royalties to buy a good chicken dinner.  (I suppose steak dinner sounds more expensive, but I am concerned about the effects of cows on our environment.)

I've decided that I do not need to become rich through royalties and I am going to offer my book for free to the public.  Yes, that means you. In the long run, I think it is more important to get the word out and perhaps save a few people some grief in dealing with the legal profession.
So, here it is.  Download it and enjoy.  Learn.  Even pass it on.  But don't try to get a refund!  And best of luck.  As I've often said, litigation is an endurance sport.  It can ruin your health, and maybe even your marriage.  It will definitely put a dent in your bank account.  Find a good lawyer, get through it as quickly as possible, and then avoid litigation like the plague.  Your head and heart will thank you for it. 
Wednesday
May292019

Being an attorney and then not

Recently I was visiting a grave site at the Mount Hebron Cemetery. I have photographed some historic cemeteries in the past but it was the first time I was in a cemetery on personal business. As I walked through the cemetery, I found myself looking at the age of death, noting that some people had a long life while others died when they were young. It made me think that I should exercise more often and try to eat better.  (No, I am not talking about artisan ice cream versus the cheap stuff.)  

Many of the grave sites were marked with a description of the role that person played in life. Some said "father," others, "husband," "wife," "daughter," or "son." I was surprised when I found a tombstone that indicated the deceased person was a "lawyer," although I was pleased the role of "father" was more predominantly displayed. I wondered who decided that the word should appear on the person's tombstone and, more importantly, why.  

As I face my retirement, I know I have decisions to make. Do I retire and give up all work or do I work part-time? My answer depends on who asks me the question and how I feel on any particular day. One thing I have learned about retirement is that people quite often face a loss of identity. After all, I have described myself as an attorney for well over 40 years now and it has become an essential part of my identity. At least, it is or was essential to me. It's hard to give up that role, even if I have other things I want to do and other identities that describe me.  

For the most part, I have enjoyed being an attorney. I have loved helping people and I know there are other ways to help, but it just feels so odd to no longer tell people I am an attorney. Okay, I will admit my ego is wrapped up in this question but I don't want to be defined by a role. I want to continue to help and care about people but it may not always involving handling an appeal. Sometimes just listening and caring is enough.  

I thought it would be easier to transition to another role in my life, i.e., artist, but it is hard to let go of being an attorney. It's been an honor and a privilege but I have other things I want to do.

 

Thursday
May232019

The hazards of representing yourself in pro per

As legal fees continue to skyrocket, more and more people find they cannot afford to pay high rates for legal services. Reasoning that they know their cases better than anyone else and are not willing to forfeit their claims, laypeople are filing lawsuits in pro per.  (In propria persona, but that is quite a mouthful!)  

It is a daunting prospect. As an in pro per litigant, you are held to the same standard as an attorney who has gone through law school and may have years of experience in civil procedure. You cannot use ignorance of the law as an excuse. You are expected to know how to present your case without the assistance of the judge.

Some litigants mistakenly believe that a judge, who is supposed to be impartial, will help you. Such a believe is inopposite to the very concept of being impartial. It requires a judge to educate you at the expense, and very often the objection, of the opposing side.

Judges take different views on how helpful they can be. The reality is that courts are more efficient if everyone knows the rules. That means that both parties are represented attorneys. Attorneys know their roles and the procedures involved in handling a case. Explaining these rules to in pro per litigants takes time and patience. Not all judges are willing to do it and will take very opportunity to encourage you to retain an attorney. Some are nicer than others in their encouragement.

Judges also know that even the best case can be lost through a procedural error. Miss a hearing and you have no voice. File your papers late and they will often be disregarded. There are rules - statutes, rules of court, local rules, and even unwritten local practices - that must be learned and applied. It is a mindfield for the in pro per litigant.

In the last few weeks, I have been contacted by in pro per litigants who have lost their caes at the superior court level.  Most of them were lost due to procedural errors. Quite often, there is not much I can do at the appellate level, especially if there is no record to explain their failure to observe procedural rules. For instance, if you file a medical malpractice action against a doctor, you will eventually need a medical expert at some point, whether it is to oppose a motion for summary judgment or at trial. But many doctors refuse to act as an expert for in pro per litigants. End of case.

It is sad to hear from litigants who may have a meritorious case but lack the knowledge to pursue it. In essence, the legal system is set up against in pro per litigants. Sometimes there are viable alternatives, such as legal clinics, legal aid or even self-help clinics offered by the courts. But in reality, these may be poor substitutes for hiring an attorney. I think it would be great if there was a way we could make the judicial system more user-friendly but there does not seem to be a big effort to overhaul it to accommodate in pro per litigants. 

Tuesday
Feb122019

Can we fix our jury system? Book Review: The Jury Crisis by Drury R . Sherrod (Lanham, Maryland: Rowman & Littlefield, 2019)

In almost 40 years as an attorney, I have been guided by a few principles. One is to honor the jury system as part of a strong democracy, which allows for laypeople to make decisions involving life or death or damage awards without the possibility they will be influenced by a more powerful party. The second principle is that most jurors make up their minds on a verdict during voir dire or opening statement and they look to confirm their decision with the evidence. On the flip side, they will reject evidence that conflicts with their beliefs. In other words, story is everything from start to finish.

The Jury Crisis by Drury R. Sherrod, a trial consultant, who writes from a perspective of cognitive social psychology, is consistent with these principles. The book goes beyond these principles to explain the evolution of juries, how jurors hear the evidence, and the process of deliberations. The fundamental point to be gathered as each topic is explored is that jurors form a story of the incident and evidence is used to build up the story.  Mr. Sherrod writes, “Jurors’ relevant attitudes and life experiences provide the lenses through which they evaluate the evidence.”

Mr. Sherrod points out that when jurors are presented with a narrative, they will almost always prefer that to a list of the evidence. Despite this finding, young attorneys are taught that an opening statement should present a roadmap to the evidence. As a result, they often give opening statements that list the evidence to be presented, rather than weaving it into a story.  That approach should change after reading The Jury Crisis.

Mr. Sherrod points out that the origins of the jury system began with people in the community being presented with the “facts” of an incident.  Witnesses generally were not called to testify. The “jurors” decided cases based on their own personal experience or sometimes discussing those experiences with the other jurors. The jurors might knew the parties involved and could impart their impressions of a defendant or an accusing party. Trials were generally short affairs.  

As most of us know, if a case goes to trial, it is not a quick event. Unlike centuries ago, we now have discovery, which could include acquiring thousands of pages of documents or deposing witnesses. The attorneys might also prepare briefs to assist the judge in deciding the case, and in deciding if evidence should be admitted or precluded at the trial. Experts are now commonplace, often required. If you designate an expert or two, the other side will do the same.  No one wants to try a case without an expert if the other side has one. All of this has contributed to the expense of litigation and the rise of alternative services, such as arbitration, mediation and private judging.

As Mr. Sherrod makes clear, resorting to professionals to decide a case does not necessarily mean these experts are free from personal biases of deciding cases on the basis of their personal worldview. These alternatives may be favored because they lack group pressure or jurors with little education. But resorting to professionals can be criticized because they may involve a bias toward the ongoing client. A corporation or government that frequently engages in mediation or arbitration can be an ongoing source of income for a mediator and arbitrator, so favoritism, both conscious or unconscious, can be involved. Such mediators and arbitrators may face the possibility of a bad reputation within this group if they lean too heavily in favor of individual plaintiffs. A single decision can end a mediator’s career.

Mr. Sherrod offers suggestions for preserving the jury process that includes resorting to a narrative approach in both voir dire and opening statement so that the jury can build the story.  He suggests that it is a mistake to tell jurors not to discuss the case until all of the evidence has been presented, rather than discussing it as it comes in, or being unable to ask questions. Mr. Sherrod also discusses the often confusing jury instructions. And finally, he looks at jury verdict forms, which are often long and confusing. (In my experience, it is difficult for attorneys to craft verdict forms that are simple and easy for laypersons to understand. One can address this problem by having laypeople reading draft verdicts to determine if a juror could easily understand what information is sought.)

Let me add another point here: While the book indicates it is written for trial attorneys, it is easy to understand and might be a great book to give to clients. In reading The Jury Crisis, clients might understand the risks they face in going to trial. So often, I have heard clients ask how a jury or judge could decide in a particular way. This book will shed some light on this decision making process.

As Mr.Sherrod considers the end of the jury system, I could also point out the jury system is burdened by our current lifestyles. Most people are stressed out and working hard to put food on the table. The days of one parent working while the other remains at home are rare; most households have two workers and some are even working more than one job. Imagine being told that you have to put your work and your life on hold while sitting in a courtroom for seven to eight hours a day, while receiving less than minimum wage. Add to that the resentment of jurors who cannot find a way to avoid jury service, even though they realize rich and poor people have better excuses to avoid jury service. Then we make them sit through long trials while experts speak in a language they don’t understand when all they want to know is whether the defendant did something wrong.

I am in favor of the jury system as it really encompasses our beliefs in a true democracy but we have to find a way to present cases in narrative form that avoids hours and hours of wasted time and expense. We also have to keep teaching our children - and acting as examples - that contributing to the jury system is one of the responsibilities we share as citizens.