Law Office of Stephen Demik, LLC

Newsletter

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.