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Chinn: (A Small) Part of the Solution

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iba-chinn-scottThe American Bar Association’s theme for Law Day to be observed on May 1 is “No Courts, No Justice, No Freedom”. The theme is meant to headline the growing problem of diminished funding for court systems across the country, which in some places has led to crisis conditions more indicative of third world legal systems than of the American ideal of justice. In the weeks to come, you’ll hear more from me and other bar leaders about that issue and its manifestations in Indiana.

But as we lead up to May 1, there is another aspect of our modern system that I thought worthy of addressing. Specifically, I have heard concerns from lawyers and judges recently about how our 24/7 media and information culture is producing false expectations and misunderstandings about the nature of the litigation process. Think about recent Indiana cases involving mass torts, political offices, and the remarks of prosecutors in criminal matters. Each context has presented challenges to public understanding about how our system works, i.e., what are its basic fairness guarantees to the parties, how motion practice and discovery work, and how long is “normal” to wait for an appropriate resolution of the case.

To some extent, we will never be able to completely disabuse the public about the pitfalls of jumping to conclusions when a case is filed, when a defendant is charged or when a public statement about a case only captures one side of the story or a piece of the process. But the question on my mind – and on the minds of those who have raised this issue with me – is what lawyers should be doing (and not doing) to aid the public understanding and to cause light to be shed from public comments instead of heat.

First, when called upon to speak about cases publicly, we should take pains to provide reasoned and tempered statements of our clients’ positions in the matter, be willing to accurately describe the process of decision, and avoid dramatic flair that can so easily overwhelm public understanding about the process. Second, we should take opportunities when appropriate, not necessarily in connection with our own representations, to offer our understanding to non-lawyers about the fundamentals of how the process works. Finally, we should personalize the lesson we give when we are asked informally about the litigation process. What would it be like if you were charged with a crime, would you want the prosecutor making you sound evil on television? What if your small business was sued for allegedly injuring someone and your livelihood was on the line, wouldn’t you want your day in court?

I don’t find particular fault with the popular media. I believe most journalists still impose on themselves an obligation to report accurately and as much in context as reasonably possible. Much will necessarily be lost in translation and in the brevity demanded in contemporary news stories. We should try to help journalists understand as much as possible about the process and not feed them with salacious sound bites.

By calling on lawyers to act with good purpose and restraint in public comments on cases, I also don’t mean to present a one-dimensional view of legal discourse in these matters or for wooden cadence that would please only lovers of Joe Friday. (Note to readers: using Dragnet references is a sure way to create a generation gap.) As a current example occurring outside our borders, take the case of the shooting death of 17-year-old Trayvon Martin in Sanford, Florida. The circumstances of the case present both understandable civil rights inquiries and questions about the impact of Florida’s so-called “Stand-Your-Ground” law. Lawyers are involved in speaking publicly about these issues, including as advocates for investigation and reform. I find reasonable expressions of that advocacy completely appropriate, even though we don’t yet know all the facts of the shooting or of the actions of the Sanford police in responding to it. So, there’s an art to this.

We are all tempted (the author included) to short-circuit the process in talking about who we think is guilty, who we think is at fault, and who should get a comeuppance. The world of instant media – both traditional and social – gives easy means to fall to that temptation. If lawyers continue to act as the voices of reason, however, that will be a small part of the solution to the problem of ensuring the American ideal of justice.•

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  1. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

  2. As an adoptive parent, I have to say this situation was as shameful as it gets. While the state government opens its wallet to the Simons and their friends, it denied payments to the most vulnerable in our state. Thanks Mitch!

  3. We as lawyers who have given up the range of First amendment freedom that other people possess, so that we can have a license to practice in the courts of the state and make gobs of money, that we agree to combat the hateful and bigoted discrimination enshrined in the law by democratic majorities, that Law Lord Posner has graciously explained for us....... We must now unhesitatingly condemn the sincerely held religious beliefs of religiously observant Catholics, Muslims, Christians, and Jewish persons alike who yet adhere to Scriptural exhortations concerning sodomites and catamites..... No tolerance will be extended to intolerance, and we must hate the haters most zealously! And in our public explanations of this constitutional garbledygook, when doing the balancing act, we must remember that the state always pushes its finger down on the individualism side of the scale at every turn and at every juncture no matter what the cost to society.....to elevate the values of a minority over the values of the majority is now the defining feature of American "Democracy..." we must remember our role in tricking Americans to think that this is desirable in spite of their own democratically expressed values being trashed. As a secular republic the United States might as well be officially atheist, religious people are now all bigots and will soon be treated with the same contempt that kluckers were in recent times..... The most important thing is that any source of moral authority besides the state be absolutely crushed.

  4. In my recent article in Indiana Lawyer, I noted that grass roots marketing -- reaching out and touching people -- is still one of the best forms of advertising today. It's often forgotten in the midst of all of today's "newer wave" marketing techniques. Shaking hands and kissing babies is what politicians have done for year and it still works. These are perfect examples of building goodwill. Kudos to these firms. Make "grass roots" an essential part of your marketing plan. Jon Quick QPRmarketing.com

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