By Dr. Ken Broda-Bahm:
It’s been a season of some firsts: An ex-President, and the leading candidate for a major party nomination, has been criminally indicted (twice so far), and found civilly liable for defamation (once and counting). Rather than mounting a substantive defense, the candidate and ex-official has used the remaining ‘bully pulpit’ to repeatedly attack both the civil and criminal justice systems as well as those who work within them. To many of us, these daily attacks might seem so exaggerated and so self-serving that they can’t possibly be gaining traction. But they are. After bringing a majority of his party to the view that the last election was “rigged,” Donald Trump is now reframing the justice system as a tool for power rather than a search for truth. Overall, these unprecedented times seem to be having a dramatic effect on public faith in our system of law, adding current fuel to what’s been a long-term erosion of trust in many institutions, including the institutions of civil and criminal justice.
A recent article in the Washington Post warns in the title that “Trump’s indictment plus candidacy could endanger democracy and the rule of law.” Interviewing experts across the country, the piece lays out the argument that trust in institutions is much more fragile than it has been in a long time – perhaps ever – in the United States. “With the new indictment,” and I would not-so-prophetically interject, ‘witheach new indictment,’ “Trump is again taking direct aim at the integrity of law enforcement agencies, the judicial system, and, ultimately, public faith in the rule of law.” As we are just starting into the campaign season, the problem is bound to get worse, perhaps much worse, before it gets better. The one ray of hope in all of this is that opinions of our justice system are not just formed on the national stage. Personal contacts matter as well. In a recent article (Shestowsky, 2023), law professor Donna Shestowsky reviews the research showing that faith and support in the justice system stems from the quality of interactions — not just from outcomes, but from the process as well. So it is fair to say that, even as the court systems are being trashed every day in the public square, they are quietly being built back up in cases and courtrooms all around the country. That is where you come in: Litigators need to practice as though you are personally managing the health and survival of America’s systems of civil and criminal justice. Because you are.
In this post, I’ll share three ways litigators can influence the survival of a belief in the justice system.
Highlight the Role
Many who’ve bought into the ex-President’s narrative seem to believe that Biden is just sitting at his desk writing out indictments and verdicts. Those of us who work in litigation know that isn’t how it works. Indictments come from a grand jury of citizens, and verdicts come from a jury and from a judge. Some have taken it as an article of faith that it would be impossible to assemble an impartial jury these days — and I agree that it would be hard. But as unprecedented and as monumental a task as it would be, I think we now have a lot of tools to do it well: I believe that in any of the venues where the former President stands or is likely to stand accused, it would be conceivable to find twelve people “good and true” who wouldn’t necessarily be uninformed, but would be motivated to be guided by evidence and not by passions.
And that is the beauty of the system that should be reinforced in practice in every jury trial across the U.S.: Make sure jurors know that in our country, decisions aren’t simply handed down from a position of power, they are — in many cases — made by a jury of citizens with the ability to listen carefully and to not be directed by personal beliefs.
Model the Respect
When an individual litigant hires an attorney, or when a juror or potential juror first meets an attorney, you’re the embodiment of the justice system for them. So it is important to use that role to highlight those aspects of our system that are still worthy of respect. For example, I’ve seen it happen too many times that an attorney will directly or indirectly convey to their clients that a jury is clueless, inattentive, or basically random. While it is important to convey that no jury comes with a guarantee of quality, it is also important to convey the reality that juries are more often than not serious, careful, and systematic. A few decades of working with jurors has convinced me that, while juries won’t always understand or apply the instructions as written, they will try hard to reach a decision that is rational, fair, and guided by the evidence. When you’re first meeting that potential jury during the voir dire process, you don’t need to ply them with platitudes, but you do want to make sure they understand how much faith and responsibility your clients are placing in them by bringing the dispute to this forum.
Share the Process
The fundamental disconnect in the public criticism of Trump’s legal jeopardy is in reducing it to a decision rather than a process. Saying that past executives or current candidates simply shouldn’t be targeted by the justice system fails to give credit to the idea that criminal and civil sanctions aren’t just decisions made from on-high, but are the end result of many processes that are typically managed by independent actors, and are typically set in motion by the actions of the civil or criminal defendant. There is a reason why “read the indictment” has been a common rejoinder to those defending Trump on the Mar-a-Lago documents case. It is easy to take issue with a conclusionary decision, and a bit harder — pending proof at least — to take issue with the seriousness of the 96 numbered paragraphs which unpack that decision.
Laying out the steps and the story is just as important to juries in the more common and less volatile cases. In every case, it is critical that jurors get an understanding not just of the “what” in the form of the verdict you are asking for, but also the “how” showing your process in getting there, as well as the “why” which makes it matter. Ultimately, justice isn’t just an end result, but it is a method. That method — basing decisions on reasons and evidence, and not just on preferences and power — is a method that needs public support right now.
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Other Posts on the Civil Justice System:
- The Civil Jury Trial: Treat the Crisis as an Opportunity
- Measure Your Juror’s Faith in the Jury System
- Expect Support for Civil Litigation to Vary by Race and Social Status
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Shestowsky, D. (2023). Civil Litigants’ Evaluations of Their Legal Experiences. Annual Review of Law and Social Science, 19.