Law Office of Stephen Demik, LLC

I was recently at the Trial Lawyers College teaching and sat down for lunch with another instructor who told me a story about a jury trial in which the attorneys had a juror consultant in jury selection. During attorney-conducted voir dire, the jury consultant was watching the attorney explore the difficult topic of race (without going into the details, race was an issue in the case). Most of the jurors explained that they don’t entertain stereotypes, harbor subconscious bias, or hold any prejudices based on race. We all like to think that of ourselves, of course. And my intent here isn’t to open up a discussion on race in jury trials, which as important as that is, would take far more than one post to explore. I grew up in the South, and I grew up knowing racism, both out in the open and behind closed doors. And I think race is almost always part of any exploration or discussion on justice, fairness, and… well, reality. But I digress.

The lawyer was asking questions of the jury venire panel when one juror raised their hand. The juror told a story about how she was raised not to see skin color. She grew up on a ranch and her father, seeing the long line of Native American workers walk past every day on their way to work, would always offer food, drink, or shelter in bad weather. He would set up hay beds and light a heater for them in the barn, giving them a warm place to stay and food. She told this story in fond recollection of her father, who she clearly loved very much and respected. The jury consultant quickly handed a yellow post-it note with a question for the lawyer. The question was, and the lawyer asked, “where would your father allow those workers to stay if they were white?” The juror teared up, and answered, “He would have them stay in the house.” She realized that there was a difference there and, even though her father was a good, generous and kind man, there was a difference. Even kind people can internalize racial bias.

During the break when the lawyers have to exercise their “peremptory strikes,” the lawyer said he wanted to “kick” the juror– exercise a peremptory challenge and excuse the juror from the case. His feeling was that she harbored some prejudice based on their exchange, and he didn’t want to risk putting a juror on the case that might feel that way. “No,” the jury consultant said, “you have to keep her.” “Why?” the lawyer asked. “Because she was honest.” Being honest, her reasoning went, is more important than saying what the court and the lawyers want to hear.

I practice the “TLC voir dire” method whenever I can in court (another subject that would take tomes to discuss). I am a big believer that it is the most effective way to find jurors who will follow the law and apply the facts of the trial to the law as the judge gives it to them. It’s not, as most lawyers practice, finding jurors who “like you” or “will vote for your case.” It is about finding honest jurors who, despite all the prejudices and biases we all have as humans, will be honest about them and look deep inside themselves to impartially follow the law as the judge gives it to them.

In one of my recent trials, after hours of voir dire, I stumbled on a juror who had the courage to admit in open court that she simply couldn’t follow the law that says that if a defendant does not testify you cannot take that into consideration in any way. Frankly, I believe that most jurors feel the way she did, although not many could bring themselves to admit it because they did not want to appear bias or feel like they were failing to follow the law. But she was real. She was honest. And she chose to exclude herself because she searched herself and realized that she just couldn’t follow the oath and ignore the fact that the defendant didn’t testify.

I’m not saying this is a way to get out of jury duty. And I’m not saying this means that no one can follow the law. It takes a lot of energy to follow the counter-intuitive principles enshrined in the Constitution (presuming the defendant “innocent,” treating the doctor witness the same as any lay witness, only holding the prosecution to the burden of proof, awarding money damages as justice for a dead spouse or relative even though that won’t fix anything, potentially acquitting someone who you think is guilty because there just isn’t enough proof, etc.). But what our goal should be, as trial attorneys, is finding honest and fair jurors, rather than jurors who want to appear fair and impartial, or say what we want to hear. And that’s a huge task.

There are many courts around the country that are eliminating attorney-conducted voir dire from trials. That is an injustice. There is no better way that I know of to help find twelve honest and fair jurors who will follow the law and apply the facts to the law as the judge gives it to them. And I’m thankful and appreciative that most courts in South Dakota still allow attorney-conducted voir dire. It is one of, if not the, most important part of a trial.

A Section 1983 lawsuit may allow someone to sue if a police officer or other government official violates their constitutional rights.

People whose constitutional or other federal rights have been violated by federal and state government officers may bring a Section 1983 lawsuit or what is called a Bivens claim against those officers to recover damages. For state or local government officials, a Section 1993 lawsuit is the right way to sue, and when the constitutional violation(s) involve a federal official a Bivens claim is the way someone can pursue a lawsuit.

Both legal avenues provide for recovery from the government for any damages resulting from the violation of that person’s rights, including physical, mental, and emotional injuries. Plaintiffs may also seek punitive damages and attorney’s fees in certain cases.

The primary purpose (and importance) of these actions is to deter unconstitutional government actions. But there are important differences between Section 1983 claims and Bivens claims:

Section 1983

18 U.S.C. § 1983 gives people the right to sue state government officials and employees who violate their constitutional rights: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…”

States are generally immune from lawsuits, but Section 1983 claims can be brought against the specific government officials or employees who violated your civil rights. Sometimes this means suing a police officer for violating your rights; sometimes it means suing the state’s elected officials to block an unconstitutional law from taking effect, such as was done by James Leach recently in South Dakota– Voice v. Noem, 1:19-CV-01003-CBK (D.S.D. May. 9, 2019).

While state agencies and local governments can also be sued for violating your rights, the rules for suing them are slightly different—rather than being able to sue the local government when one of its employees violates your rights, you can only sue the local government if it was a local government policy that led to your rights being violated, or there was a pattern or practice. Local government “policies” include both official rules, decisions by authoritative “policy makers,” and informal, common practices that are de facto policy within the local government entity.

A Bivens Lawsuit

The 1971 Supreme Court case Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, established the right to sue federal government officials. As opposed to 1983 lawsuits, Bivens actions are is only used as a basis for lawsuits against individual officers or officials, not entire agencies. A Bivens claim is also limited to constitutional violations and usually not used for violations of federal statutes.

Where there are other, separate means of vindicating violations of constitutional rights, a Bivens action may not be allowed.

What constitutes violations of constitutional rights?

Most 1983 and Bivens lawsuits are brought for violations of the Constitution’s Fourth, First or Eighth Amendment rights by an official of the state or federal government. For example, officer shootings of unarmed citizens or cases of police brutality and excessive force, false arrests, illegal searches without proper warrants, custodial inmates beaten or injured by guards, inmates medical needs being willfully ignored by guards, or schools or government entities that censor or punish students or public employees’ right to free speech or religion, could all be subject to these types of claims.

The “qualified immunity” roadblock

When a police officer or other government official is facing a Section 1983 lawsuit or Bivens claim, they will almost always try to get out of it by raising the defense of “qualified immunity.” This concept presents a roadblock for many lawsuits. Qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotation omitted). It allows a police officer or other official to escape liability if the constitutional right the officer is accused of violating was not “clearly established under federal law” at the time the right was allegedly violated. Courts disagree on what “clearly established” actually means, and most defendants in these lawsuits can tie up a lawsuit in appellate courts by appealing a trial court’s denial of qualified immunity.

While there are significant roadblocks in these types of lawsuits, they are a vitally important legal mechanism to hold government accountable. If your constitutional rights have been violated by state or federal officials and you want to discuss it, feel free to contact our office for a case review/consultation.

Yesterday the Rapid City Journal did an excellent piece on the under-representation of Native Americans in the federal jury pool for the division in which I practice. You can read it here.

The Journal article begins with the law review article that I referenced in my last post. While I disagreed with some of the statistics quoted in the article for the actual percentage of Native Americans in the relevant community (a statistic that, like 73.8% of all statistics, can be easily manipulated– that’s a joke), I was impressed and grateful that the Journal took notice of the issue. And, actually, the author recognized that there are differing views on what the actual statistics are, but all can agree there’s an under-representation, just not on how significant the under-representation is.

I also should take a minute here to explain that the judge interviewed in the piece, Chief Judge Viken, is one of the best, if not the best, federal judges I’ve ever practiced in front of, and I’ve seen a lot of them in my career. It takes a lot of courage for a judge to say that there is an obligation of the courts to ensure reasonably accurate cross-sections of the community in its jury pools. And he did that.

Most judges take no proactive role at all in the jury pool process, in my experience. If they do, it is to simply deny the challenges using the “systematic exclusion” prong of the Duren case (i.e. it’s not our fault that the group in question doesn’t go out of their way to register to vote or volunteer for the jury pool). That is an easy way out of the under-representation dilemma, which has been long recognized in South Dakota as far as I can tell, both in state and federal courts.

That Duren prong has been cited ad nauseum to ensure that no one will ever win a cross-section challenge, no matter what your statistics show. Anyone in any jurisdiction in any state would be hard pressed to find one case where a successful cross-section claim was granted. In fact, in another law review article, legal scholar Nina Chernoff’s quotes a study that found that, out of 167 cross-section challenges that were brought between 2000 and 2010, exactly zero were granted. That article was written on January 1, 2019 and published the Washburn Law Journal. You can find an abstract and download the paper in PDF format here.

I highly recommend that article for anyone who is interested in this topic and wants to delve into the cross-section issue. The paper is fairly dense for the non-lawyer reader, but articulates a better argument for my opinion that the courts should shoulder the responsibility to hold government accountable for ensuring fairly representative jury pools, not the litigant. The abstract notes that “courts are undermining the government’s constitutional obligation to produce racially representative jury pools by sidestepping the substantive task of balancing constitutional values.” And I’m glad we don’t have one of those courts in this division. But that doesn’t change the reality that 90% of courts out there are, in my opinion (and my own statistic) are actively avoiding the under-representation issue by refusing to acknowledge government’s responsibility in remedying any significant under-representations.

So… back to the statistic– zero out of 167 cross-section challenges were granted. I think we can safely assume that the lawyers wouldn’t bring a cross-section challenge without some demonstrable statistic showing under-representation of an identifiable group. Does that mean that every jury pool in every one of those jurisdictions s a reasonably fair cross-section of its relevant community? Call me a skeptic, but I highly doubt that.

I am proud of the motion I brought, and I’m humbled that it actually got someone’s attention. And I’m more humbled in reading the Journal article and realize that the court is looking to solve the issue and some progress may finally be made. In times like these, the courts can hold the torch in the darkness and shed the light of the constitution on injustice, when the ordinary citizen can do nothing. And it’s up to lawyers, their clients, and sometimes law students and journalists, to light those torches sometimes.

I am very proud to be part of a recently published law review article on the under-representation of Native Americans in the federal jury panel for the Western Division of South Dakota, found here. The author, Camille Fenton, did an excellent job in presenting the issue.

The right to a fair cross-section of the community in jury pools really gained traction with the Supreme Court case Duren v. Missouri, 439 U.S. 357 (1979). That case involved a criminal trial in which the defendant argued the jury did not represent a fair cross-section of the community, a right guaranteed under the Sixth Amendment. The jury pool excluded women because each juror summons included a section whereby women could exempt themselves from jury service if they were stay-at-home caregivers. Based on the returns, the jury pool from which petit venire panels were pulled under-represented women. The Supreme Court ruled that jury pools must include a fair cross-section of the relevant community.

In 2016, I challenged the jury pool in the Western Division of South Dakota District Court for its underrepresentation of Native Americans. Under Duren, if a defendant can show that a “distinctive group” is significantly underrepresented in a jury pool as a result of “systematic exclusion,” he or she has made a prima facie case that their fair cross section rights have been violated. The “systematic exclusion” part is what tanks most challenges because most courts hold that a challenger must show some kind of intentional exclusion of the distinctive group. I have a big problem with this because I believe that the fair cross section right is one that is the courts’ duty to preserve and protect, not the “distinctive group.” In other words, the court should be responsible to ensure a fair cross section of the community is represented in its jury pool, and the numbers should speak for themselves.

While many attorneys can demonstrate an underrepresentation (as I did with a statistician who found that Native Americans composed approximately 22% of the community, but the jury pool was only around 4%), their challenges fail under the “systematic exclusion” requirement. This is unfortunate because the problem of underrepresentation is often easy to solve by simply expanding the sources jury pools are drawn from. Most jury pools are taken from voter registration lists, such as in federal court in South Dakota. However, by simply expanding the sources to driver licenses, state IDs, tribal enrollment records, etc. the problem can normally be resolved– i.e. the underrepresented groups are better represented.

While there are many courts that proactively deal with the underrepresentation of various groups, such as the Central District of California when it expanded its jury sources to include state DMV records, most stubbornly resist change. This is unfortunate. For the lawyer in the trenches, it often leads to the invariable conversation where a minority client asks you how many Native Americans, African-Americans, Latinos, or other specific group they belong to will be in their jury pool. And, as their attorney, you have to explain that there is really nothing that can be done unless the court changes the way it draws jurors.

I’ve practiced in many different areas– from large cities to border zones, criminal and civil courts, from Guantanamo to the Pine Ridge Indian Reservation. Something that always bothers me is intellectual dishonesty. One such issue came up for me in practicing in “Indian country,” as the federal law books call the reservation. I saw that when tribal officers are sued, the courts say “these are tribal police officers, not federal law enforcement officers,” thereby getting the federal government “off the hook” for civil liability. But when a young Native American kid, like Justin Janis, swats at a tribal officer lunging to arrest him, the officer is suddenly a full-fledged “federal law enforcement officer” for purposes of 18 U.S.C. Section 111, a penal code section criminalizing anyone who “forcibly assaults, resists, opposes, impedes, intimidates, or interferes with” a federal law enforcement officer. And when tribal officers make mistakes in search warrants or criminal procedure, guess what they are now? If you’re as cynical as me, you guessed it– no longer “federal law enforcement officers” beholden to the federal rules of criminal procedure.

The rationale is simple enough– the federal government doesn’t want to pay for civil plaintiffs who sue the tribal officers. But they want to bring the full weight of the federal prosecution arm on anyone who touches a cop on the reservation. Don’t get me wrong, I understand why we want to criminalize assaults on officers. That is a given. But what bothers me is that the federal government wants to have it both ways, and define “federal law enforcement officer” two different ways in order to protect itself against civil liability and excuse any governmental wrongdoing.

I filed an appeal on the issue, and the Eighth Circuit found the jury instruction error (which was only a legal technicality, and not the full picture of my problem with this intellectual dishonesty) was “harmless.” See United States v. Janis, 810 F.3d 595 (8th Cir. 2016). I think the law has it wrong. And I still believe that something should be done to correct this legal wordplay. Either a tribal officer is a federal law enforcement officer or not, but having it both ways is simply semantic gymnastics.

During my seventeen years practicing criminal law, I can recall only one case where someone was able to claw back hundreds of thousands of dollars that were seized as part of a drug crime. This week’s Supreme Court opinion, Timbs v. Indiana, may change that. Normally, as attorneys we routinely tell our clients “if the cops took it, you’re never going to get it back.” From cars to cash, homes to helicopters, the government routinely files what is called “civil forfeiture” actions against criminal defendants’ property. The only way to contest those forfeitures was by filing a claim or an appeal of the government’s action, which would almost always be summarily denied. Then you could file a lawsuit in court, but those were also almost always denied.

The reason is that the government only has to show that the property had some connection to a crime. If you had drugs in your car, you lost the car. If you had drugs or guns in your house, you sometimes lost the house. I remember reading about a woman who lost her house to civil forfeiture even though she repeatedly tried to get people to stop selling drugs around it.

The Timbs opinion was a 9-0 decision (rare nowadays, but we’ll see with the new composition of the court). And I think that’s because it really doesn’t do much new, although I do think it will have some effect. Most states already have laws regulating civil forfeiture and prohibiting “excessive” forfeitures. This opinion really just says that the 14th Amendment applies the 8th Amendment right to the states. So, in most states there’s no substantive change in the law. However, I am hopeful that the Timbs case will at least influence government and judicial referees to look at forfeiture orders with more scrutiny.

If you have a civil forfeiture case, you should either consider filing a motion contesting the forfeiture or speak to an attorney about your options. It is no longer a hopeless proposition to stop the government from taking everything.


In 1966, the Supreme Court issued its seminal ruling in Miranda v. Arizona, 384 U.S. 436 (1966). We are familiar with the “Miranda warning” that comes when someone gets arrested (i.e. “You have the right to remain silent. Anything you say can and will be used against you…”). Those rights include the right to remain silent and the right to an attorney. Free of charge. But there is a minority of states, including South Dakota, where that “right” comes with a price tag. Without addressing my problems with that (and I think there are many), I think it is worth noting the inherent contradictions between South Dakota’s “pay to play” criminal justice system and the way the Supreme Court saw things in Miranda.

In Miranda, the Court held that “the Federal Bureau of Investigation has compiled an exemplary record of effective law enforcement while advising any suspect or arrested person, at the outset of an interview, that he is not required to make a statement, that any statement may be used against him in court, that the individual may obtain the services of an attorney of his own choice and . . . that he has a right to free counsel if he is unable to pay.” 384 U.S. 436, 481 (1966) (emphasis added). That “free” part was based on the Criminal Justice Act of 1964, which is codified at 18 U.S.C. Section 3006A. Here’s the gist, folks– if you are suspected of a crime, arrested for a crime, and need legal representation for that case, you should get it free of charge if you can’t afford it because it is your constitutional Sixth Amendment right to the effective assistance of counsel, thanks to Gideon v. Wainright, 372 U.S. 335 (1963).

But here’s the rub– if you are in South Dakota, and some other states, and you need to exercise your Sixth Amendment right, you get a bill at the end of your case. That doesn’t sound right to me. In fact, it sounds un-American. So the right is different in South Dakota. If the state cops were telling the truth, they would have to tell suspects or defendants “you have the right to an attorney if you can afford one. If you can’t afford one, we’ll slap you with a bill at the end of your case and you’ll have to pay it or you’ll go to jail.” But they don’t tell them that. Because they want suspects to talk. They want to use the “Reid Method” to coerce confessions. Simply put, they don’t want lawyers there because lawyers would tell anyone to not speak to law enforcement without an attorney present to help you. If the cops were honest and did tell you that you’ll get a bill if you ask for a lawyer, it could be construed (in my mind) as coercive– telling suspects that it will literally cost them to get legal assistance to help them.

I believe this inherent contradiction can be challenged in court. If you have a case where the Miranda advisal simply told the suspect or defendant that they had a right to an attorney (as is common in states like South Dakota), without telling them that they will have to pay, then you (or your attorney) should challenge the constitutionality of that advisal. In other words, there may be a legal remedy to suppress or exclude any statements made pursuant to one of these faulty advisals. After all, we are not the state legislature, and the state legislature is not always kind and thoughtful of criminal defendants. So perhaps if some of the statements start being thrown out of court, state law enforcement and/or the legislature may be more inclined to take a second look at whether or not it makes sense to slap bills on indigent criminal defendants who cannot pay them.

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: 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.