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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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