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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.    

 

 

Friday
Feb082019

U.S. Supreme Court blocks Louisiana Abortion Law

In a 5-4 decision, the U.S. Supreme Court voted to block a controversial law in Louisiana - pending further review - that would have required doctors who perform abortions to have admitting privileges at hospitals within 30 miles of the abortion clinic.  The emergemcy appeal filed by Hope Medical Group for Women argued the law, if implemented, would leave Louisiana women with a single doctor who would be able to perform abortions.  Chief Justice Roberts acted as the swing vote, siding with the liberal justices.  This is significant for two reasons:  Justice Roberts is becoming the swing vote on the Court, a position occupied by former Justice Kennedy, and is apparently attempting to keep the Court from going too far to the right, possibly to avoid criticism of partisan politics.  The two Trump appointees, Justices Kavanaugh and Gorsuch, voted with the conservative minority.  The second aspect of the decision was that the Court was faced with a nearly identical law in Texas and in a 5-3 vote in 2016 voted to block the law from taking effect.  At that time, Justice Roberts sided with the conservatives.  Justice Kavanaugh wrote a dissenting opinion, argued the decision was premature because the State indicated it would allow physicians up to 45 days to obtain admitting privileges. Is it possible that Chief Justice Roberts is shifting his opinion on abortion?  We all know Roe v. Wade is under attack and this one ruling is not going to make me feel comfortable that liberals are going to prevail on the next attack.  It will be a fight all the way. 

Tuesday
Jan222019

Trump's Broken Promise to the LGBTQ Community


By now, the list of Trump's broken promises has grown considerably. It's hard to keep track of what  promises Trump made and which ones he broke. But when he was running for President, Trump promised to support the LBGTQ community.  As he moved his alignments, he became actively hostile to them.  (That list keeps growing as well.) 

Today the U.S. Supreme Court upheld the ban against transgender individuals serving in the military, at least for now and pending appeals in the lower courts. Todd Weiler, former Assistant Secretary of Defense, with 30 years of military service under his belt, was involved in implementing the original policy permitting transgender service, which also removed restrictions on transgender cildren attending Department of Defense schools.  He spoke out:

“The military struggles to make recruitment numbers and unfortunately we continue to see the same families and communities bearing the brunt of Service to Nation. To artificially restrict service to those that look or act a certain way, is to make our country less safe and our military less ready. We know this from history, when women, African-Americans, gay, lesbian and bisexual individuals, and many others were denied the opportunity to serve. It only resulted in a military that was less reflective of American society. When we restrict service and do not encourage and outreach to EVERY community and individual that can meet the rigorous standards, we distance our military from the communities of America. When that happens, citizens become less concerned about the use of military forces, because it doesn't directly affect their family. That is not a statement of opinion...it is a statement of fact and history. Our military must be a mirror of the Nation it serves...the whole Nation.”

Trump has often spoken of protecting this country, especially as he continues to fight for his border wall.  Are we in a position to reject some of our most dedicated warriors when the nation's safety is a priority?

 

 

Wednesday
Jan162019

Mitch Jackson's new book on Social Media for Attorneys and Business Owners

When I was first sworn in as an attorney, advertising of our services was not permitted. I guess it did not seem proper for attorneys to be looking for work. We could advertise our services by handing out cards at every event we attended!  Oh, how I hated that! I would arrive at a legal dinner, armed with a fistful of business cards, and try to tell other attorneys about my services as an appellate attorney. My discomfort must have been apparent.

I have learned a few things since then. It was not just about promoting my services and dropping business cards into the hands of potential clients. In fact, my business cards often found their way into the trash can. I later learned that it would require multiple contacts before I was remembered by these new contacts. More importantly, I was focused on myself and not the needs of others. After a few years of struggling, I was told by a friendly headhunter to shift my focus away from myself and on to solving the problems or needs of others. And to stop handing out business cards until the opportunity presented itself!

Then social media came about and turned everything on its head. Like Mitch Jackson, I was an early blogger, but my focus was on helping trial attorneys. The truth was that most of the people who read my blog were laypeople, not trial attorneys.  And it wasn’t as though they learned about law. What they learned about was . . . me. By the time a client has contacted me, he or she has already visited my website and read a few of my blogs. An attorney without a website simply does not exist.

Today no business owner or attorney can afford to ignore the importance of social media. Most of us don’t have a clue as to what we are doing or we spend time on a few platforms.  Thanks to Mitch, you can read his new book, “The Ultimate Guide to Social Media for Business Owners, Professionals and Entrepreneurs” and learn about lots of platforms, some that are new to me. His book is broken down into small chapters, often written by experts in the field, such as Joey Vitale, Chris Brogan and David Meerman Scott. And, if you like what you read, these experts provide ways to enhance your education by providing multiple sites for videos, podcasts, blogs and articles.

The key takeaway from Mitch’s book is that we should strive to be authentic and connect with people. That means showing people about our human side. I can remember being taught in law school that you should never admit to a client that you didn’t have an answer, but I realize now that was meant to try to mold young attorneys into perfect authorities. The truth is that we are human and might not always know the answer.  But that is what research is for. I think my clients understand when I don't have an answer but I am willing to find one.

Coupled with this point is Mitch’s recommendation that we offer our services to people to solve their problems. Giving out free information is a service - and an opportunity - that will reward you on several years for now and in the future. 

If you want to promote your business through social media – everyone should! – then this book will provide tips and suggestions on how you can come up with an effective media plan. And allow you to be yourself while doing so. Find out more by visiting http://streaming.lawyer/the-book.