By Dr. Ken Broda-Bahm:
Everyone who works with our court systems, including those who work in civil litigation, are invested in the idea of rule of law. Whether our case has to do with governmental powers or not, whether it involves civil rights or not, the procedure and the trial are parts of a noble institution of seeing that disputes are resolved, not through the simple exercise of power or force, but through the more nuanced but vital elements of reason, argument, evidence, and law. While commentators have said for years that the rule of law is fragile, we are in the process of finding out just how fragile it can be.
Rule of law has been uniquely under threat in a couple of ways. On one front, rule of law is facing unprecedented official challenges. One example was shared by the Washington Post’s former editor and columnist Ruth Marcus in her recent piece, Warning to Law Firms: Stand Up for the Rule of Law While You Can. The article focuses on an executive order to revoke the security clearance of a single Covington & Burling partner as open retaliation for that lawyer agreeing to represent Jack Smith, the former Special Counsel who investigated the document and January 6th cases against the current President. President Trump surely knows from his own recent experience that a legal team’s security clearances can be vital in mounting an effective defense. In addition to sending the Department of Justice to investigate the former investigators, President Trump also appears to be taking steps to ensure that targeted individuals won’t have adequate legal representation. Marcus notes that the action was “designed to intimidate law firms considering taking on the administration. The message of the order was clear: Do so at your peril. We will come after you.” There is no shortage of other examples of legal threats, including the mass firings of those whose job it is to administer the law, and an edging closer to the open defiance of courts’ judgments and orders.
But there is also a second and more subtle way the rule of law is currently under siege: A skeptical public that is increasingly primed to see legal judgments as just another form of partisan power. Roughly half of the population seems to support President Trump, even in his most retaliatory moods, seeing it as a justified payback for the cases launched against Donald Trump during the past few years. A recent national Trust in Justice survey has added data showing that majorities or near-majorities now distrust the justice system and believe its decisions are often biased. There is a real risk that, in the minds of many, the justice system is already devolving into just a form of warfare by other means. In this post, I will share some thoughts, broadly for those engaged as part of the justice system, and more practically for those addressing juries.
Legal Professionals: Get Engaged
Organizations like the American Bar Association, and the American Society of Trial Consultants have issued statements calling for a renewed focus and defense of rule of law. Many law firms have reinforced their own positions. Lawyers and others who work in the field should also be actively seeking out opportunities to assist, pro bono where necessary, on the work that will end up setting the limits on how far the government is allowed to go in extending immigration enforcement, cracking down on DEI initiatives, mass-firing federal workers, isolating transgendered Americans, blocking Congressionally-approved programs, and more. These cases (and there are many) will need not just representation, but research, strategy, preparation of documents and witnesses, and more. In her opinion piece, Ruth Marcus notes the potential for some firms to not want to be on the wrong side of a fight with the administration, but she cautions that the “wrong side” may end up being the side that does nothing and passively accepts this transition: “Those who fail to stand up while they can for the rule of law may rue its erosion and regret their silence.”
Advocates: Speak to a Skeptical Public
It is a separate but related challenge to learn how to argue the more typical cases to jurors who might also be feeling a bit less trust for judicial process and for the law itself. It is always a good idea, but especially wise in the current environment, to make sure jurors understand not just what the law is as it applies to the case, but why the law is what it is. The notion that, “It’s not just correct, it is also a good idea” should often be part of your message on the law. When you are dealing with the kinds of institutions that can be targets for specific skepticism — government agencies and entities, banks, large corporations, law firms — it will be important to build a specific credibility for that actor and to humanize the groups and to pick witnesses who can put a good face on the organization. It is also important to consider the motivation of a juror or judge: Formally, the goal may be to just interpret or apply the law, but behind that, other values will cause decision-makers to gravitate toward a preferred goal. That is, they might be internally asking themselves “What evens the scales, creates a more desirable outcome, or offers help to a party that needs it?”
We are certainly living in important times. All Americans, but particularly those who work within the institutions of the law, have a responsibility to stay informed and engaged, and to do their best to address the current moment.
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Other Posts on Rule of Law:
- Address Fundamental Skepticism on Rule of Law
- Account for Juror Malaise
- Remember that Law is a Higher Calling
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