There’s never any shortage of material that should inspire a civil litigation blogger — Mastercard and Visa settled an antitrust complaint with the DOJ, Apple lost a patent infringement suit, Verizon refunded millions in fraudulent fees, a Delaware County jury awarded $5 million in a medical malpractice case — but sometimes the muse is absent.
So let’s talk about changing minds:
Vast moral revolutions do take place once in a while, but it is hard to figure out exactly what sets them into motion or brings them to success. A high-minded prophet in some part of the world denounces an old and dreadful social custom. A smattering of do-gooders plead for reform. The reform in question appears, at a glance, to be impractical, unpopular, and unlikely. And yet enormous masses of people somehow—but how?—end up suddenly embracing the revolutionary idea, and they bend to the task of digging a new foundation for the whole of society. The improbable reform, upon completion, turns out to be irreversible. And in retrospect, absolutely everyone, or nearly so, solemnly agrees that good has, in fact, been done, and moral progress on the grandest of scales is more than a figment of the wistful and naive imagination.
Kwame Anthony Appiah is a philosopher at Princeton, and, in his new book, The Honor Code: How Moral Revolutions Happen, he cites two large and indisputable examples of this strangest and most majestic of historical phenomena. A handful of Quakers organized the earliest anti-slavery committees in America and Britain late in the 18th century. The likelihood of doing away with slavery seemed pretty small, given that plantation slavery in the western hemisphere was proving to be, for entire industries in America and Britain both, an economic bonanza. The slave laborers were suffering horribly, but a lot of other people, not just the plantation owners, were benefiting.
Put aside matters of love, family, and friends. They have their own rules. Our concern here is the way in which we deal with strangers — after all, that’s how the civil justice system functions: strangers determine the fates of other strangers.
I’m in no position on this blog to discuss at length the reasons why slavery or other deeply rooted historical ills went away after generations of acceptance, but I doubt that any of their adherents suddenly realized the error of their ways. Maybe the entire intellectual framework changed, like in Thomas Kuhn’s vision scientific revolutions; or maybe it was more like Max Planck’s theory of change: "new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it."
Or maybe it was something simpler, and whatever philosophy compelled the end were there all along, just suppressed and misdirected. Justice is blind and we are often blind to injustice.
The great value of the trial by jury certainly consists in its fairness and impartiality. Those who most prize the institution, prize it because it furnishes a tribunal which may be expected to be uninfluenced by an undue bias of the mind. I have always conceived, and still conceive, an impartial jury as required by the common law, and as secured by the constitution, must be composed of men who will fairly hear the testimony which may be offered to them, and bring in their verdict according to that testimony, and according to the law arising on it. This is not to be expected, certainly the law does not expect it, where the jurors, before they hear the testimony, have deliberately formed and delivered an opinion that the person whom they are to try is guilty or innocent of the charge alleged against him. The jury should enter upon the trial with minds open to those impressions which the testimony and the law of the case ought to make, not with those preconceived opinions which will resist those impressions. All the provisions of the law are calculated to obtain this end. Why is it that the most distant relative of a party cannot serve upon his jury? Certainly the single circumstance of relationship, taken in itself, unconnected with its consequences, would furnish no objection. The real reason of the rule is, that the law suspects the relative of partiality; suspects his mind to be under a bias, which will prevent his fairly hearing and fairly deciding on the testimony which may be offered to him. The end to be obtained is an impartial jury; to secure this end, a man is prohibited from serving on it whose connexion with a party is such as to induce a suspicion of partiality. The relationship may be remote; the person may never have seen the party; he may declare that he feels no prejudice in the case; and yet the law cautiously incapacitates him from serving on the jury because it suspects prejudice, because in general persons in a similar situation would feel prejudice.
One of the main things lawyers do is argue, in the sense of "to state the reasons for or against" something. We argue with opposing counsel. We argue with judges. We argue in front of juries, but not with them, since they’re not allowed to ask us any questions. We even argue with our clients and with our law partners.
One of the things I’ve learned from spending most of my waking hours arguing with people is — as Chief Justice Marshall agreed — you can never disabuse a stranger of their preconceived opinions. If up is down, peace is war, or the moon is made of cheese, then forever it will be. It’s pointless to try to dislodge from someone’s mind any object which has firmly settled into its location.
But people are complicated, they contain multitudes. For every firmly settled belief in the wrongness of A, there is a firmly settled belief in the rightness of Z. Any lawyer who tries to convince an opponent, a judge, a jury, or even a colleague that A is right has already lost; the lawyer’s job is to argue that the case at hand is not A but Z.