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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. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  2. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  3. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

  5. Mr. Foltz: Your comment that the ACLU is "one of the most wicked and evil organizations in existence today" clearly shows you have no real understanding of what the ACLU does for Americans. The fact that the state is paying out so much in legal fees to the ACLU is clear evidence the ACLU is doing something right, defending all of us from laws that are unconstitutional. The ACLU is the single largest advocacy group for the US Constitution. Every single citizen of the United States owes some level of debt to the ACLU for defending our rights.

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