It’s counterintuitive, but the law is more a science than an art. If you look at the entire universe of legal questions raised in and among our society on any given day, the vast majority have a simple, clear, and obvious answer.

Speed limits are constitutional. So is the sales tax. It is illegal to walk into a gas station, point a gun at the cashier, and demand their money. It is negligent for a driver to text while driving. If you hire a painter to paint your house for $1,000 and the painter does not paint your house, you do not owe them $1,000. And so on.

Parts of the law, however — the parts that warrant hiring a lawyer — are more an art than a science. How would you describe The Tonight Show in an entertainment contract? Should Mark Zuckerberg sue The Social Network for defamation? Does an obvious satire constitute trademark infringement? These questions don’t have easy answers. They don’t have right or wrong answers, just a wide spectrum of different answers with different benefits and drawbacks. That’s why you hire a professional, rather than a computer or an unskilled laborer, to answer them.

I’m a trial lawyer, so I’m biased, but I think that the law is at its artistic zenith at trial. I don’t like the analogy of trial to war (in my humble opinion, war is unique in the human experience and beyond analogy to lesser endeavors), and I don’t think sports really fits the bill (because trial lawyers think like a coach but execute like a player), so I tend to analogize to games of strategy. It’s like Chess or Go. There’s a new Harry Potter movie coming out; we can say trial is like a wizard battle.

Trial lawyers walk into court with plans, backup plans, and with training and experience in various techniques and methods. Trial, though, has a way of knocking askew the best laid schemes of mice and men; it’s less a choreographed ballet and more a rough mix of strategic adaptation, technical mastery, wit, and endurance.

Trial is hard. Anyone who tells you otherwise is doing it wrong.

My views on the difficulty and sophistication of trial lawyering are not particularly novel or unique, which is why it was a bit strange to read this recent post at Drug and Device Law:

The following week, we had lunch with an in-house lawyer. She was from a different company and, like us, had nothing to do with the case alluded to above. But she had followed it with interest. Moreover, she once had a case against the same plaintiff lawyer, who had operated from the selfsame playbook. Everything was the same: same disregard for the judge’s orders, same rearguments on points lost, same palpable insincerity, and same guy you couldn’t trust as far as you can throw a Sumo wrestler. But that case settled after closing arguments. And the jury was happy to talk with the lawyers. It turned out that they really did think the plaintiff lawyer was a buffoon. He ticked them off big time. But they were also thinking about giving him a big time verdict. So did that jury anger toward the plaintiff lawyer mean anything? Or do plaintiff lawyers get a free pass?

The easy answer is that plaintiff lawyers get a free pass if they have a sympathetic client. Just as the plaintiff lawyer insists, jurors are loath to take out their anger on an individual who has sustained a terrible injury. But the in-house lawyer went a step further, and offered a fascinating theory: an angry jury — no matter the source of the injury — is bad for the defense. If the case has become a nightmare for the jury, lasting way longer than expected and filled with mind-numbing sidebars and recesses (occasioned by the plaintiff lawyer’s latest outrage), the jury grows furious. If the atmosphere of the courtroom reeks of hostility, the jury marinates in that atmosphere. When it comes time for that verdict, the jury’s anger is a heckuva lot more likely to be visited upon a Fortune 100 company than someone who has spent a couple of weeks in an ICU and will never go to a junior prom.

That sort of cynical plan to inflame the jury by acting like a buffoon goes against everything trial lawyers are taught and everything they learn from experience. Sure, trial lawyers should push the boundaries sometimes, but they must be extraordinarily careful in doing it, not least because they can destroy their own cases by violating court orders.

If the above intentional anger theory is true, then the lawyer is practically begging to lose their case and to be sued for legal malpractice. It’s not like the case would be that hard; the lawyer is routinely violating court orders.

Ron Miller, himself a plaintiff’s trial lawyer, already responded here:

[T]he whole idea is so condescending: a sympathetic plaintiff and an angry jury trumps all. Really, if jurors are this dumb, we have to see if King George is available because the whole idea of democracy is just dumb. If these people are so foolish, why are we letting them vote?

… But there is a point here. Bad lawyers sometimes get great verdicts. What is the answer to this apparent contradiction of the evil plaintiffs’ lawyer and the big verdicts? Because there is no question this happens all of the time.

… [G]etting good cases is the key to having a successful plaintiffs’ practice. There is no law that only good plaintiffs’ lawyers get good cases. The skill sets to get personal injury cases and prepare them and try them overlap a little bit (and more so, admittedly, for defense lawyers). But not much. You are far better off being a bad lawyer with a good case than the reverse. Why? Because juries usually get it right.

Couldn’t agree more. Facts win cases. It’s a lot more common for a bad lawyer to lose a case than for a good lawyer to win a case. (If that last sentence seems strange, let it sink in.)

But maybe there’s still something to learn from the example. We lawyers see ourselves as wizards, and thus masters of patient deception, but, well, what if we just take everything the wayward plaintiff’s lawyer said at face value? Maybe he really was just highly emotional about this client’s cause. He would not be the first lawyer to become emotionally invested in the case; most of us trial lawyers have to expend additional effort to control our emotions at trial. Maybe he’s just not very good at that.

It reminds me of a recent NYTimes Opinionator column, In Search of the True Self:

How is one to know which aspect of a person counts as that person’s true self?

If we look to the philosophical tradition, we find a relatively straightforward answer to this question.  This answer, endorsed by numerous different philosophers in different ways, says that what is most distinctive and essential to a human being is the capacity for rational reflection.  A person might find herself having various urges, whims or fleeting emotions, but these are not who she most fundamentally is.  …

But when I mention this view to people outside the world of philosophy, they often seem stunned that anyone could ever believe it.  They are immediately drawn to the very opposite view.  The true self, they suggest, lies precisely in our suppressed urges and unacknowledged emotions, while our ability to reflect is just a hindrance that gets in the way of this true self’s expression.  To find a moment when a person’s true self comes out, they think, one needs to look at the times when people are so drunk or overcome by passion that they are unable to suppress what is deep within them.

Juries tend not to be composed of philosophers (there just aren’t that many philosophers in the population), so I presume that most juries believe that the wayward plaintiff’s lawyer lacks self control and that his true self, a person passionate about his client’s cause, is coming through and speaking to the jury.

If that’s the case, then there is indeed value to the lawyers’ outbursts: they convey passion and belief to the jury. “Anger” isn’t the issue; “sincerity” is. Juries, like all normal people, respond favorably to sincerity.

I’m sure the plaintiff’s lawyer could do a better job at conveying this sincerity without violating court orders and frustrating everyone in the room, but I’m doubtful that the lawyer is acting that way as a purely cynical ploy. It’s just too crazy of a plan, particularly when other, less risky options are available.

 

  • Michael Carin

    “Marketing” works. Universities believe this truth. They demonstrate this belief with “marketing” majors in business schools. Plaintiff lawyers marketing target potential clients, the insurance companies, who employ the defense lawyers, target jurors. Your blog references a “cynical plan to inflame the jurors”, in my humble opinion insurance companies take active efforts to inflame jurors long before they become jurors.

  • So much to say, but I will limit myself to responding to one point: jurors are motivated by sympathy.
    I call “bullshit.” There might have been a time when jurors were motivated by sympathy, but it is gone. In my state, Tennessee, sympathy for plaintiffs is dead. Sympathy for defendants, particularly in medical malpractice cases, is a given.
    The best evidence of this is that I stopped asking for jury trials in medical malpractice cases a decade ago. I still get a jury – because the defense wants a jury – but I would rather try my case to a pro-defense judge rather most juries because the judge will at least make some effort to follow the law.
    Defense lawyers claim that sympathy motivates jurors only when a jury returns a substantial verdict for the plaintiff. They use jury-sympathy as an excuse for bad facts, bad lawyering, or both.
    There may be jurors that are sympathetic to plaintiffs in some parts of the country. But my conversations with other plaintiffs’ lawyers tell me those jurisdictions are few, far between, and shrinking in number.