Law Office of Stephen Demik, LLC

Newsletter

Let me begin here by saying that I respect police officers, detectives, agents, and other law enforcement officers. I have some that I call close friends. And they have a tough job. A really tough job. I’ve learned that through my many years working in the criminal justice system. I continue to believe that law enforcement people have one of the hardest jobs out there. That’s evidenced by the high rates of suicide in the profession, and the incredibly high levels of stress and PTSD among law enforcement.

But I want to briefly talk about an important, if not controversial, question– who polices the police? Recently, Jeff Sessions decided to markedly limit oversight of local police in this country, which was already not that significant. That should be concerning to us all. We all hear the worst stories about police brutality and excessive use of force anecdotes, sure, but if the Department of Justice drops oversight of law enforcement abuse, then what are we supposed to do to combat this issue? Well, you won’t be surprised to know that my view is that the lawsuit is the last tool left when government abdicates its role.

And that doesn’t make me “anti-cop”. I’m not anti-cop any more than most people are “anti-lawyer.” Like any profession, legal or law enforcement, there are bad apples. And we can’t excuse the bad apples and their conduct just to prove that we value and respect law enforcement. In fact, I believe that calling those officers who engage in willful misconduct to the mat gives due credit to the men and women in blue who do their jobs, and do them well. It’s the same as me opposing lawyers who file frivolous lawsuits or abuse the legal process— they give a bad name to the ethical attorneys who strive for justice and accountability instead of greed or notoriety. They make good attorneys’ jobs harder.

We shouldn’t forget that we, as citizens, give a signed check over to law enforcement every year we pay taxes (literally, but here figuratively). But it’s not a blank check. We give them guns, batons, mace, pepper spray, handcuffs, jails and prisons… and we give them uniforms so that they will be respected and obeyed when necessary. But that doesn’t mean we give them licenses to abuse, harass, or attack us. It’s not a blank check. We need some limits on that account.

I chose the clip of this image at the top of this post deliberately.  Though it happened seven years ago, I still remember it vividly. There are many other examples, some justified and some more questionable, of police abusing their power, but this one is indefensible. Law enforcement behavior like this should provoke anger and outrage in all of us, whether or not we supported the kid protesters or their agenda. This is a good example of a “bad apple” whose arrogance and bullying need to be checked.

Sometimes it’s poor training. Sometimes it’s a lack of resources. Sometimes a lack of leadership. Sometimes all three. And sometimes it’s a bad apple. Any which way, who is going to hold them accountable?

If the Department of Justice is done checking this kind of behavior, then we need lawyers who will step up and do it if we want any meaningful balance between order and justice in our society.

Civil Lawsuits are the Last Empowerment for the Citizen

I remember sitting at the dinner table in Kingsport, Tennessee one night around 1996– a restless and rebellious college student– engaged (as usual) in a spirited debate with my own father and some family friends. They were making fun of lawyers and “frivolous lawsuits”, a common topic fueled by the “McDonald’s coffee lawsuit” myth. If you haven’t already, please take a minute to watch this video (here) and get the facts on that case, rather than the sensationalized media myth. Anyway, I remember (fresh off a course in civics or American history, I’m sure) making the argument that the judiciary and, specifically, the lawsuit, were the last vestiges of citizen empowerment left in our country. Let me explain (with the caveat that I’m oversimplifying and recognize it):

Our government, as we all know, is composed of three branches, as well as a system of checks and balances. The two branches that are supposed to “represent the people” are the executive and the legislative. Those branches are elected officials that are, in theory, accountable to the voters and, hence, the citizenry. However, anyone with half a brain (even an argumentative college student) knows that these two branches are bought and sold by corporations and lobbyists. Further, these branches are exclusively controlled by two parties– a fact that is underscored by facts (here) and my own anecdotal experience working as an intern for a Democratic congressman the summer of 1995. I remember vividly when families, veterans, and ordinary citizens would come to this congressman’s office to visit or voice their opinions. They were sent to me– a 21-year-old college student intern. In stark contrast, when the Exxon lobbyists, health insurance lobbyists, and other corporate cronies showed up, they were immediately ushered back into the congressman’s office for whiskey and “good ole boy locker room banter” (at least that’s what I imagined happened behind the closed doors). The cronyism was crystal-clear.

But my argument (then and now) is that these two branches have been so corrupted that there is only one branch left to empower the citizen against these forces of corporations, insurance companies, and lobbyists– the judiciary. Voting is really an illusory power nowadays, with super delegates, the electoral college, and rampant gerrymandering. Our elected officials bear no loyalty to us as citizens because they’ve been bought and sold ten times over by the time they are elected and re-elected. It’s depressing, I know, but it’s true.

And, as usual, the corporations, insurance companies and cronies are mounting a multi-faceted attack on that last vestige of power that we, as citizens and litigants, have. An interesting video someone sent me recently made me remember that conversation I had back in 1996 (here), and made me proud, once again, to have ended up having the honor and privilege to be a trial attorney for the people.

Cognitive dissonance is a term used in psychology, that I have always kept in mind during jury trials. It is defined, generally, as the mental discomfort or psychological distress experienced by a person who simultaneously holds two or more contradictory beliefs, idea, or values. In “A Theory of Cognitive Dissonance,” published in 1957 by Leon Festinger, he operated on the theory that we, as human beings, strive for internal psychological consistency in order to mentally function in our surroundings. I know I’m going to blatantly dumb this down, but basically, I understand it to mean that we try to keep our beliefs and our actions consonant with each other.

Juries do not want to believe in a world where someone is falsely accused, arrested, indicted, and put on trial for a crime they didn’t commit. They also don’t want to live in a world where the “rules of the road” don’t work — they need to believe that the system works and that it protects them. This is the “reptilian” part of our brain that we unconsciously internalize. All of this, of course, sounds familiar to many civil plaintiffs attorneys, acolytes of David Ball and Don Keenan’s “Reptile” or Rick Friedman and Patrick Malone’s “Rules of the Road.” And those are good books. Books that have a lot to teach plaintiffs lawyers; I’ve learned a lot from reading them. And they talk about the same concept, generally, in the civil context.

But in the 14 years I’ve been trying cases, I’ve realized that we cannot overlook the jury’s reluctance towards cognitive dissonance in criminal defense cases. It took me some time to realize that, and mostly it came through talking to jurors after an acquittal. One time in particular, I remember sharing an elevator ride with a juror who was going to the clerk’s office for a per diem check after an acquittal. I didn’t say anything to her, but I’ll never forget what she said to me: “You tell your client to stop hanging around that crowd. He needs to straighten up and fly right– change his life around. I would never hang out with them.” I thought to myself, “Why did she acquit my client so quickly when she had these strong feelings about him?” Because she needed him to be different than her. “And why did he have to be different than her?” Because she needs to live in a world where she would never be sitting in the defendant’s seat in a jury trial. That is too scary a place for the average juror.

We don’t often think about our criminal cases in those terms, i.e. “What does the jury need to believe in order to acquit my client?” Instead, sometimes we only focus on our client and their cause, which can be a mistake.

We have to keep in mind what we’re asking the jury to do (acquit our client). But we seldom ask what we’re asking them to believe. Some attorneys go into trial extolling their client’s virtues and good deeds, which isn’t always a bad strategy, but I think they miss the mark. If we are asking the jury to embrace the idea that our client, John Doe, was simply walking down the street one day and the cops arrested him for nothing, then we’re asking the jury to believe in a world where that could happen to them. And no one wants to believe that. Contrary to our intention, it makes it harder for the jury to acquit our client.

If, on the other hand, we accept that our client may have made some mistakes, or may have even just been in the wrong place at the wrong time, then we aren’t asking them to believe in such a chaotic world. We are allowing the jury to believe that the system works, and that it generally keeps us safe. That “the rules” are intact. And the jury can more easily acquit our client because he or she is somehow different than they are.

I know this seems counter-intuitive, because we love and care for our client. But at trial our job is to secure an acquittal, regardless of whether or not the jury likes our client. In fact, an acquittal won’t win them any trophies or outstanding citizen awards… but it will keep them out of prison. As much as we care for our clients, at the end of any jury trial there are only twelve people that determine our client’s fate. And we have to keep them (and cognitive dissonance) in mind when we frame our cases.

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?

I am going to begin my newsletter with a brief piece on the presumption of innocence. There have been tomes of legal scholarship on it, and this is by no means a treatise. Just simply an observation (which I hope to continue to share as part of my newsletter). I hope that these newsletter pieces give you a glimpse into my thoughts on trial lawyering and trial practice– both criminal and civil.

Because I have been so busy this week, it may not be Ciceronian, but rather a thumbnail sketch of a though I had this week. A client told me that the agents in his case “presumed me guilty.” He asked, rhetorically, “what happened to the presumption of innocence?” And I get compelled to answer in some way, so I’m doing it here.

The presumption of innocence is one of the greatest principles enshrined in our criminal jury trial system, yet rarely, if ever, have I seen a jury venire come in for trial ready to embrace it. Civil law, of course, has some parallels, but generally there the implicit presumption (even in hotly contested trials) is that someone did something wrong and that is why the jury is there. And when you represent the civil plaintiff, you like that presumption. Because someone did do something wrong to your client, or else you would not have brought the case. Litigating damages and allocating fault are the questions that I think most juries ask from the premise that “something happened.” But I’m focusing here on the presumption of innocence in criminal trials.

In criminal trials, that same premise– “something happened”– rarely, if ever, works in a criminal defendant’s favor. And that is because it goes hand in hand with the conclusion that “the defendant did it.” Yet the law tells jurors (and hence potential jurors who must follow that law) that they are to “presume the defendant innocent.” So how can we as trial lawyers get the jury to not only hear the presumption of innocence, but to follow it?

I am not the authority, but in trying over 50 criminal trials the past fourteen years, I think there is a simple exercise that can frame the presumption of innocence in a way that jurors can relate to it. And I’ll explain it here:

Close your eyes and imagine the one person in your life that is above accusation. The person who you believe to be the most honest, law-abiding person in your life. For me it would be my mother. I remember a time when I was a little boy and stole a matchbox car from the aisle of the local Kroger grocery store in Kingsport, Tennessee where I grew up. My mother saw me playing with it in the car on the way home. She drove me back and marched me right up to the cashier and return it, apologize to the manager, and promise to never steal again. Of course, that is just one example, but you get the point.

Find that person in your life, and some examples. And I want you to really feel why you believe that person is honest, trustworthy, and law-abiding. What is it in your heart and mind that makes you believe that?

Now take a minute, with your eyes closed, to see them– your “person.” It could be a family member. It could be a member of your church. It could be a neighbor. Actually see the instances that you’ve witnessed or know about that lead you to that position– that they are the most honest, law-abiding person you know. Don’t spend too much time on this. A few minutes at most. But when you have that person in mind, open your eyes and identify them by name. We’ll call them _______.

Well, if someone accused my mother of committing a crime, my first reaction would be “no way.” If they told me they had evidence proving her guilt, I would protest. I wouldn’t believe them. If they said, “we have eyewitnesses,” I’d say “they’re mistaken or lying.” If they said “we’ve got DNA evidence,” even, I might be afraid, but my heart and mind would instantly go to the first reaction that it had to be incorrect. There had to be a mistake. My mother is innocent.

Now look at the criminal defendant.

We don’t know him or her from Adam. He/she may look guilty. They may have tattoos. They may look “shady” or already look guilty to us. After all, “we are here because something happened.” Right? A crime was likely committed and this person is sitting in the “hot seat.” Many of us would naturally say “I know they got arrested for something.”

But now let us see _________ in that “hot seat.”

That’s what the presumption of innocence means. It’s not a natural feeling. In fact, I think the natural feeling that most jurors have in a criminal case is “they must have done it or else the cops wouldn’t have arrested them and the prosecutor certainly wouldn’t file charges against them.” These are natural responses and reactions that we all have. But the law– our Constitution– says we have to have a different reaction. We have to be skeptical of the prosecution. We have to start from a place of “he [or she] is innocent.” Not “not guilty.” But innocent.

There’s a reason they call it jury duty. It isn’t always fun. And it isn’t easy. But it’s the law. And I think so many criminal trial attorneys miss out on true opportunities to really ask jurors to feel the presumption of innocence, instead of simply nodding their head when the judge asks them “can you follow the presumption of innocence?” Many criminal defense lawyers miss this critical opportunity to frame the case for the jury before any evidence comes in– and ask them to really follow the presumption of innocence. And sometimes that can mean the difference between an acquittal and a conviction.

We will be opening our doors on July 6, 2018.