Trial lawyers are often vilified in the public realm. From Saturday Night Live’s hilarious “Caveman Lawyer” to the portrayal by Keanu Reeves in the 1997 film “Devil’s Advocate” (including one of the most sensational and dreadful, not to mention ridiculous, depictions of cross-examination I’ve ever seen), the media loves to show trial lawyers as master manipulators who bamboozle sheepish jurors.
These Hollywood caricatures involve a subtext that should disturb us all — namely, that trials are circus rings for injustice—places where manipulation and sorcery happen. We are being taught to associate lawyers and juries with sorcery and deceit. The other side of that coin is to teach us that we need something stable, constant, and certain: a system that avoids trials (except for Hollywood versions).
And that’s what has happened in our judicial system over the last five decades or so. We’ve acquiesced to a system that incentivizes settlements and plea bargains so much that the trial is near extinction, and the trial lawyer is a dying breed.
We as lawyers tolerate, and in some cases actively support, a court system that thrives on settlements and plea agreements. We toss out trials and replace them with quasi-contracts in which our client’s rights to access the courtroom are traded and bargained away. And we accept settlements and plea bargains as “justice.” But there’s a big problem with that, because in my experience, they aren’t justice. In the worst cases, they are an injustice, whether it’s a criminal defendant who takes a plea offer for six months for a crime he or she didn’t commit, or an injured citizen who settles for peanuts because he’s afraid of the big law firm representing the corporation.
The National Association of Criminal Defense Lawyers recently published a study on the “trial penalty” and its effect on trials in the criminal justice system. It can be found here: https://www.nacdl.org/trialpenaltyreport/. It’s a fascinating study, and one that bolsters my assertion that the jury trial and trial lawyer are dangerously close to extinction. And it also showcases some startling real-life examples of why this is a problem. The same effect happens across the country as corporations and appellate courts fly the banner of the “McDonald’s case” to slash jury’s rightful verdicts or intimidate lawyers to settle their cases instead of trying them.
It’s not just the public that is susceptible to this brainwashing. It’s also some of the “people’s lawyers” themselves. I’ve seen too many plaintiff’s lawyers take settlements because they were afraid of the jury, or too doubtful of their own abilities to get justice in a courtroom. I’ve taught trial skills at the Trial Lawyers College over the last decade to civil attorneys who have openly confessed to me that they have entered into settlements they shouldn’t have, because they were afraid to try the case. I’ve seen way too many criminal defense lawyers lean on their clients to take plea bargains because they, too, distrusted the jury and their own ability to advocate in the courtroom.
I don’t want to be “Chicken Little” yelling that the sky is falling, but, well, it is falling. We are losing sight of the importance of trials. We are losing the jury trial system. And, because there are fewer and fewer trials, we are losing good trial lawyers (and good jurors, I might add). It’s a shame. And we shouldn’t tolerate it.
I understand that trials cost money and resources, and that there is a place for settlements and plea agreements. But there is also a human cost when justice is denied to the injured, or prison terms are wrongfully imposed.
I guess my point here, to anyone reading this, is that we can’t give up. We need to either be a fighter or hire a fighter. I’ve always befriended colleagues who are fighters—trial lawyers who continue to work through the fear, to become better, to courageously take their case to trial. And I’m proud to call them friends. And lawyers like them are the only things that are going to save the jury trial system. Lawyers who are devoted to the jury trial system, trial lawyers who are credible orators and effective courtroom advocates.
Tony Serra, a famous civil rights attorney and activist, has said, “Most [trial] lawyers are negotiators nowadays. They are ultimately compromisers.” While there is always a place for reasonable compromise, it’s shouldn’t be a place to surrender. And I’ve found that my opponents in the courtroom will not take me seriously unless they know that when l throw down the gauntlet, I will follow through and fight. After all, who wants a compromiser as their advocate?
Wouldn’t I, if and when I needed a lawyer, want a fighter?