Has The Jury Reached A Verdict?

Jury duty, for lack of a better word and unfortunately to use the colloquialism, sucks.  Admit it, you dread receiving the jury summons and when you call the automated system each night you feel a pit in your stomach that your group will be selected to appear.

Make no mistake about it: everyone understands and appreciates the value of the jury system, but nobody likes it.  The court officers who administer the system hate it because they have to give the same speech every day and answer the same questions every day; the judges dislike it because a jury trial takes longer than a bench trial, which means that the judge will not be able to clear as many cases off his/her docket; the attorneys, on the whole, dislike it because it means more work and more time in court, thus more expense to the client but less time billing on other matters; and the parties typically dislike it because they are forced to put their faith and trust in the hands of 12 men and women they have never met.  Finally, and more importantly, the general public dislikes it because they feel that their time is better spent doing other things.  Attorneys are notorious in this respect because what other profession is there where the value of the individual is measured by the amount of time they work?  Every hour on jury duty is an hour not billing.

But barring all of that, it is bar-none a system that comes as close to seeing that justice is done as there is in the world.  And it must be saved and I think I know how. 

I served my time as a juror last week and was morally challenged throughout the process.  As soon as I was seated in the jury box I had to identify myself as an attorney and the gauntlet was laid.  Do I fake an answer in order to try to create a reason to be excused?  Do I tell the court that the defendant must be guilty of something because he is here?  Or that I think the police never make mistakes and always get the right person?  These thoughts ran through my mind as I was being voir dired and it was difficult for me to come up with a reason why I could not serve.  Sure, I had a full plate of work at my office.  But the judge asked me a very astute question, and one which made me reconsider my concern with ensuring dismissal.  He asked me if I had ever tried a jury trial before.  Of course I had, and during that trial I remember how integral and important the jury was.  Like it or not, if a party wants a jury trial, they get it.  The jury serves such an important part of the process that it cannot be taken lightly.  But still, people are scrambling to find reasons to be excused.  Don’t you remember the quip?  I don’t want a jury trial because I do not want to be judged by 12 people too stupid to get out of jury duty?

Well, the system has been changed so that the ease of ensuring excusal from jury duty has been eradicated.  No longer will financial hardship or inability to speak English like a professor or family obligations be a reason for summary dismissal.  The courts don’t want to hear it.  Want to know what I heard?  The defense attorney asked the jurors if any of them did not want to serve as jurors.  After murmurs and mumbles, many of the jurors conceded that they did not want to be there.  The overarching reason?  Financial hardship.  My boss doesn’t pay for jury service and if I do not work, I do not get paid.  This is not uncommon and certainly understandable given the current economic status.  But why not use this to advantage?

I have an idea.  I am not saying it is a great one, but it might be on the right track.  Perhaps the legislators can work out the details; but I think it might just solve a lot of the issues and get potential jurors to be less averse to serving.  Are you ready?  Here goes:  give employers a reason to pay their employees for jury service.  If the employers demonstrate to their employees that jury service is important, less potential jurors will be looking for ways to avoid it.

Why should employers pay for jury service?  Easy– what is the one thing that everyone hates?  Paying taxes.  Give the employers tax incentives for paying for jury service.  The government creates these tax incentives all the time, whether it be for operating a business in specified geographic zones or for hiring specific classes of individuals.  What difference should another tax incentive make?  Want to sweeten the pot even more?  Tell the jurors that the pay they receive from their employers for jury service will be tax-free.  Come on, how bad could that be?

I know it doesn’t resolve all of the issues, and again, it probably needs some more thought.  But what if you exempt students from serving?  There is no possible way to incentivize them to voluntarily participate.  If you can demonstrate that you are a student taking more than 12 hours of educational hours per week then you should be excused, hands down.  And teachers should be permitted to postpone their jury service to times of the year when school is on hiatus.  Now, the one hiccup, which I am still working on, is the self-employed, although I do think that tax incentives can be utilized.

I am not saying that it will resolve all of the issues, but people want to do the right thing, but they won’t if it works a detriment to them.  Take away the financial hardship excuse.  California is heavily employee-friendly so legislation that incentivizes payment to employees for jury service should fit in nicely.  Or even legislating that payment to employees for jury service is mandatory.  Fix the system.  My stomach drops at the thought that some verdicts were decided in error because the jurors just wanted to finish their service and did not really want to be there.  OJ?  Possibly?

I don’t typically invite reader feedback, but in this respect I am curious as to whether any of you have any thoughts.  So please, feel free to write me back or post a comments.  Sharing of ideas can be helpful…

Have a great week, all of you. 

Rob
www.ahslawyers.com
www.robcohen13.wordpress.com

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Guilty Until Proven Innocent

In 1987, a book was written that would change my life.  We all find inspiration and motivation from different sources, and it should come as no surprise that my life would find its direction from a book.  And it wasn’t just any book– it was perhaps one of the most important books written in the 1980s because it spawned imitators by the thousands.  The book was called “Presumed Innocent,” was written by Scott Turow (a lawyer), and was made into a film in 1990 starring Harrison Ford.  Do you remember it?  Consider that it was the first major book of its kind and the ignition-switch for the legal thriller genre.  John Grisham, David Baldacci, Steve Martini… they all followed the lead of “Presumed Innocent,” a book which is second only to “To Kill a Mockingbird” on the list of the most-popular legal thrillers of all time.  (Consider that John Grisham has 3 books in the top ten, but Turow’s masterpiece is number 2.)

 If you are not familiar with the story, it is about a prosecuting attorney named Rusty Sabich who is charged with the murder of another prosecuting attorney, a woman with whom he had been having an affair.  The trial was spectacular, with a despicable prosecutor out to get Rusty, a defense attorney who didn’t trust his own client, evidence that went missing, and a reveal that was so shocking people still talk about it 23 years later.  And it was the book that made me want to be a lawyer.

 Don’t get me wrong, I never wanted to be involved in criminal law.  Murders and rapes and kidnappings were the stuff of nightmares for me.  So what was it about this book that made me want to be a lawyer?  I was enamored with the way the lawyers in the book thought.  If anything, I wanted to learn how to think the way they do, to be 3 steps ahead when cross-examining, to know the details down to their most minute, and to be so sure of yourself and your arguments that your confidence-level skyrocketed.  I wanted that.  And to some extent I would like to think that I have accomplished that, although now, almost 10 years into practice, I am still learning how to do those things.

 So you can imagine my consternation and suspicion when, a mere two-weeks ago, a sequel was released, simply entitled “Innocent.” 22 years have passed since the events of the first book and the characters have certainly moved on.  Rusty is now an appellate judge up for election to the state Supreme Court.  WHAT?!?!

 Immediately I was confounded.  How could this possibly be?  In the first book it was difficult to label the main character as the hero.  In fact, there were no heroes, really.  But Rusty was certainly flawed.  Cheating on his wife was the just the beginning.  Throughout the book you witness a character in self-preservation mode, someone who would do anything to keep out of jail.  Even hiding evidence or covering up the truth?

And yet now he is an appellate judge up for the Supreme Court.  I simply don’t buy it and I feel duped.  I feel taken advantage of.  I feel hoodwinked.  Rusty did not have redeeming qualities.  He was dark and brooding and now he has been elevated to a position of high respect and responsibility.  As a reader, I don’t trust Rusty to be the pillar of the legal community that is embodied in the position of a judge.  With a past that involved being on trial for murder (one which was never solved, by the way, or so the public believes), how could the public still elect him to the bench?  In today’s day and age, haven’t we forgotten that the defendants are innocent until proven guilty?  Michael Jackson?  OJ Simpson?  Both acquitted but both haunted by the stigma of having been on trial, convicted by the court of popular opinion.  Surely they did something wrong, right?

 So how could Rusty have been elected to the bench?  It just doesn’t seem to work for me, but of course, in order for the rest of the book to play out, this high-position was a necessity.  It wouldn’t have worked if he were still just a lawyer.  

 Whew!  Well, I am glad to finally get that off my chest.  You cannot take a book as important and life-changing as “Presumed Innocent,” wait 23 years to write a sequel, and then mess it up.  There is too much responsibility.

 Having said that, I should probably actually read the book now, right?  Maybe it will all make sense after I read it…

I want you to take him for every dollar he has…

Every once in awhile I have to take a step back and remember that just because I am a litigator, it doesn’t always mean that I am simply a hired gun.  The sign on the door says “Attorney and Counselor at Law.”  (Ok, so I don’t really have a sign on my door, and if I did it wouldn’t say that, it would say “Dodger Fan Parking Only, All Giants Fans Will Be Shot on Sight.”  But that is neither here nor there.)

 

During a litigation matter, the litigants will take on numerous psyches.  They will be determined and adamant that they are right, they will inevitably become cost-conscious and willing to throw in the towel simply to stop the economic bleeding, they will resign themselves to the fact that they may lose, and when the matter is finally over by virtue of a settlement they will second-guess their decision to allow resolution without actually putting their case to the test.

 

And it is the job of the litigator not only to vigorously represent the client, but also to manage these psyches, because sometimes the goal of the litigant is not the option available through the litigation process, however litigation is the only option.  For example, I had a client who accepted a settlement that would pay him basically the same amount of money that he had spent thus far in attorneys’ fees, but he was thrilled because in the process the other side admitted that he was wrong.  That apology made the rest of the litigation process worthwhile to my client.

 

I bring this up because it happened just this past week.  Unfortunately it took a trip to the hospital to make it happen, but the world works in mysterious ways.  Without getting into the minutiae, my client was sued for a business deal gone badly; a business deal between friends.  A mere two weeks before trial, after a year and a half of fighting and tens of thousands of dollars had been spent, the parties settled.  And all it took was getting the two parties into a room without the attorneys. 

 

During a deposition of one of the other side’s key witnesses, a medical emergency forced the deponent to the hospital.  And an amazing thing happened: the parties worked together to care for this ill individual.  It was the next morning, as the deposition was set to resume, that I mentioned to the other side the unusual demonstration of teamwork.  Usually, the parties cannot stand to be in the same room with each other, however here, the history of friendship and the common focus of the witnesses’s well being, prevailed.  When I remarked to the other side my perceptions, the response was amazing:  unqualified agreement.

 

I took my client aside and asked him what he really wanted to happen.  Want to know what he said?  He wanted his friend back.  I asked him if he thought that the other side wanted an apology and he said no; he figured that he wanted to be told that there was no malice in the breakdown of the business relationship, that it was all a misunderstanding.  I told him that based on my conversation with the other side, if there was ever a chance for that to happen, this was it.  So I suggested that he take the other party outside and try a heart-to-heart.  And that was all she wrote.  The two of them worked the dispute out amongst themselves and they walked out arm-in-arm.  Do you believe that??

 

As I said earlier, being a litigator also means being a counselor, determining what the client really wants and taking all available opportunities to achieve those goals.  In my instance, this was not a process that could have been short-cut, but the opportunity presented itself and the counselor part of the job took over and achieved the best result for the client.  In the end, the goal of the other side was not money but confirmation that my client did not intend to cause him damage (although they did get money and were happy to do so).

 

So, there you have it.  Rob Cohen, “Counselor At Law” and attorney…  I am not saying that all litigation matters have happy endings, but it can happen, you just have to see those opportunities and take advantage of them.

 

Have a great week and keep your eyes open for opportunities.

Leader of the Pack

  I know we have talked about it before, but I had a new thought the other day about “leadership.”  I was thinking of it from the perspective of running a business and I was trying to think of who I would look up to as a role model, someone I think embodies the traits that I would want to emulate to be a good leader.  And I came up with someone.  Are you ready? 

 

His name is Captain Jack.  Are you thinking of the pirate?  Well, think again, it is not Johnny Depp, although the person I am thinking of is a fictional character, immortalized on screen by one of our greatest actors.

 

Captain Jack Aubrey.  Unsure who that is?  Captain Jack Aubrey was the subject character of a series of books about the English Navy, portrayed on screen by Russell Crowe in “Master and Commander: The Far Side of The World”.  This is one of my favorite movies and I try to watch it at least once a year. 

 

So as I was watching it last night, I was examining it from the perspective of what makes him such an effective leader.  He is no different from any of us who run businesses.  But as young business owners and management, we have a difficult job.  We want to be friendly, we want to create a good working environment, but we also want to be free to discipline if necessary and we desperately need everyone to be working towards the same goals.  So how do you do that?  Well, first and foremost, you need to set the goals.

 

I have a confession to make: I was never big on setting goals.  Once I had graduated from law school and passed the Bar examination, I never really thought about goals as far as my practice.  I always just thought that the practice of law flowed along.  A goal to me is a destination, and other than retirement, what kind of a destination could be found in the practice of law?  I would expect that a lot of you may have had similar thoughts.  A lot of us are service providers and we are dissimilar from a baseball team that sets a goal of winning the World Series, an army that sets its goal on winning a war, or a retail establishment that sets its goal on opening a store in every city in the country. 

 

Well, surely I have reformed my thinking in that respect and am now working on the second part of the process, getting everyone to sign-on to that goal.  And as I am sure you all know, it isn’t easy.  So I look for other leaders, and so what if they are the larger than life variety found in television and movies and books?

 

Sure, I could look to George C. Scott in “Patton”.  I could check out Mel Gibson in “Braveheart”.  Or even Jean-Claude Van Damme in “Universal Soldier”.  But I selected Captain Jack.  And without analyzing the movie frame by frame, I can tell you what it was about him that made me want to join his crew.  The sensitivity with which he dealt with tragic events, the way he took the time to train the younger sea-men, the way he disciplined the crew when need be, and the overarching focus on the goal.
 

I could go on and on about why I would be first in line to sign up to sail with Captain Jack, but I will leave you with this.  This is an interaction that Captain Jack has with an officer who has failed to achieve the crew’s respect: 

 

 

Midshipman Hollom:  I’ve tried to get to know the men, sir, and be friendly, but they’ve taken a set against me.  Always whispering when I go past and giving me looks.

 

Captain Jack:  You don’t make friends with the foremastjacks, lad.  They’ll despite you in the end, think you weak.  Nor do you need to be a tyrant.  Look, Hollom, it’s leadership they want.  Strength.  Now, you find that within yourself, and you will earn their respect.  Without respect, true discipline goes by the board.

  

If you haven’t seen the movie, I strongly encourage it.  For a film that has only 2 major battles, the 2 and 1/2 hours fly by, all because of Captain Jack. 

 

“Aye Aye Captain!”