Friends:

It is unfortunate, but I feel I must let you in on a little secret about the judicial system.  This is said in all honesty and with no cynicism or sarcasm… Judges and juries sometimes get it wrong.

I don’t know whether I should even be telling you that, as if it is some sort of admission that the public at large should never know, like I have a responsibility to the Bar to hold the justice system in esteem.  But when you are working as hard as you can to do the best job that you can for your client, to have a judge or jury make a bad decision is horrifying and yet, to be expected or at least anticipated.

It is a litigator’s lament– sometimes doing the best thing for your client is not to litigate.  Putting your fate in the hands of a judge or jury may not be the best solution. 

So why do judges and juries sometimes get it wrong?  Consider the amount of work it may take for an attorney to bring a motion or try a case.  The hours of work and preparation can add up when you consider the research, the drafting, and the revising, not to mention the hours spent in front of the mirror preparing your oral argument, or preparing a witness, or getting your exhibits together.  Hour after hour after hour. 

And how much time do you think a judge spends on this?  If it is a motion, it is heard with the typical morning calendar, when the judge may have 10 other matters on calendar.  Maybe the judge had time to prepare for the morning’s calendar the afternoon or evening before.  Don’t pay any attention to the fact that the judge received the motion likely a month earlier; it didn’t get read and considered until the day or a few days before.  But is the judge in trial?  Was he hearing testimony until 4:30pm the day before?  Regardless of how much time the judge took to review the argument, it pales in comparison to the number of hours the attorney spent in preparing.

Well, how hard can it be, right?  These legal issues should be fairly simple and judges know everything already, so how hard is it?  As in all things, it can be easy or it can be hard.   If you have a simply auto accident, the judge has likely seen and heard it all hundreds of times.  But what if it is a complicated usury claim, having to do with the amount of interest that can be charged on a promissory note and whether the loan was arranged by a broker and if the payments on the note were made by the borrower or the borrower’s son?  The attorney spent hours upon hours researching this very technical aspect of the law.  The judge maybe read the paperwork the evening before, along with 10 other motions, grasped the general concepts, saw the words “usury” and “no broker” and figured that usury is usury so that is that.

The attorney might have a slam-dunk winning argument… if the judge had nothing else to do but read, research, and consider that one motion.  The judge doesn’t and they miss things.  It is so easy to do.  In a world where details can be the difference, they may get lost, as the judge loses sight of the forest through the trees.

Judges are people just like you and me and the guy down the street.  They make mistakes.  We just hope that if they do make mistakes, if is on someone else’s case.

And what about juries?  We all know the joke, that we don’t want a jury made up of jurors too stupid to get out of jury duty; but clients think that they can relate to jurors, that they are believable and make sympathetic witnesses.  They believe that they can develop an emotional connection with the jurors. 

Have you ever been on jury duty?  Do you remember how miserable you were?  Think about how you act when you are forced to do something you don’t want to do.  You sulk, you slump and you stare off into space, thinking about 1,000 other things you could be doing instead.  And when you see the finish line?  You want nothing standing in your way.

How about this story.  An attorney wins at trial and talks to one of the jurors afterwards to find out what it was that swayed the jury to her side.  The juror tells her that they were so eager to leave that they took a vote and just adopted the majority position, completely disregarding the instruction that the decision be unanimous.  Remember “Twelve Angry Men?”  If you haven’t seen it, do so (the one with Henry Fonda is terrific).  I may be cynical, but to me that movie might be better classified as fantasy/science fiction.  It doesn’t happen that way anymore.  Maybe it did, but it doesn’t now.

But this is the system we have, so we have to grin and bear it.  Although there is an alternative… participate in voluntary resolution programs.  Wouldn’t you rather control the outcome than place the decision-making in the hands of people you don’t know?

I am no expert but I believe there may be a psychological component to it.  We like to think that we are reasonable people, that we have the intelligence and compassion to make the right decision, and I believe that on the whole we do.  But we look at these things in a vacuum.  If we were tasked with hearing only one argument, having all the time in the world, and having unlimited resources at our fingertips, I believe that 99 times out of 100 we would make the right decision.  But judges and juries don’t operate in a vacuum.  So litigants take their chances and sometimes it is a crapshoot– maybe you hit double boxcars or maybe it is snake eyes…

Or maybe you decide to play pinball instead.  Whatever the decision, the important thing is to understand how the game is played and what the risks may be.

Have a great week.

Rob

www.robcohen13.wordpress.com

http://www.twitter.com/robcohen13

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