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A Comment on "Streetwise Litigation"—Unwise Advice for Trial Lawyers

By James C. Hill

While I have been sitting in a different chair in the courtroom for about three decades, I have never engaged in any higher calling than that of Trial Lawyer. I was privileged to appear on behalf of clients in court for more than a quarter of a century. I count being trial counsel as high an office as any other. I have, until recently, been proud to list the fact that I was a “Founding Member” of the Section of Litigation of the American Bar Association on my curriculum vitae.


Then, in Fall 2003, I read the article in Litigation, the journal of the ABA Section of Litigation, Summer 2003, entitled “Streetwise Litigation: ‘Legitimate’Tactics for Operating Outside the Rules.” I was amazed by the publication in the journal of an article, which strongly recommended that members of the bar engage in the following:


  • »  Treat trials as being “more in common with a knife fight” than a legal battle;
  • »  “. . . engage in aggressive courtroom tactics outside bland, accepted conduct”;
  • »  “Cross the line” drawn by the rules because jurors are impressed by improper acts whatever the judge might rule;
  • » “ . . . counsel . . . willing to bend the rules and cross the line is more likely to win . . .”;
  • » Counsel “operating out of a . . . concern about stepping on the judge’s toes operates at a tactical disadvantage”;
  • » Trial counsel are to put the jury first, ahead of the rules of the court
  • » Apparently, assuming that procedural and evidentiary rules are no longer learned by aspiring trial lawyers, those thus uninformed are advised that, “The line can only be found by crossing it.”
  • » And, “Unless I’m told it’s against the rules, it’s not against the rules.”

The article sums up: It is easy for the trial attorney to become boxed in by the law—to believe that only responses to questions are evidence and that “evidence” as defined legally is the true basis for the verdict. It is not. The true basis for the verdict is the hearts and minds of the jury. The jury typically looks for answers beyond the evidence outside the parameters of the law. The trial attorney who meets them there, in that unchartered territory, is the one who will win the case.


“Where’s the Beef?”
I immediately recoiled. The article offended me and represented, to me, the endorsement of just about everything reprehensible about the practice of trial law. Yet the article seems to evaluate the methods it recommends as having profound effect on the jury. Isn’t it proper to be persuasive?


Let’s explore the adversarial process. Just what is it? Where did it come from? What is its purpose? In the ordinary course of human activity, conflicts between people and institutions frequently arise. Throughout history, methods to resolve these disputes have been devised, improved, abandoned or perpetuated. Mutual combat, code duello, investigatory tribunals and even witchcraft trials have been advanced.


The system that simmered throughout history, ultimately perfected as a result of the refined wisdom of common law developers, is the system adopted in America. It is the adversary system. The adversary system might be defined, at first glance, quite simply: There is an issue of law or fact, or both. There are two “deciders”; one adjudicates the applicable law; the other ascertains the facts. Each party is represented by an advocate pressing for that party’s contentions. The legal adjudicator instructs the factfinder as to the applicable law. Having determined the facts, the factfinder (jury) applies the law and decides the case—that is, returns a verdict.


Does this simple definition suffice? Is anything left out? I submit that there is. The missing ingredient is what makes the adversarial system work.


The Missing Ingredient
To identify the missing part, it is important, first, to agree on what the finished procedure is supposed to do. Consider some possibilities. In the event of conflict, the adversarial system is intended to provide a method of finding out which side wins. If that were its purpose, the definition I suggested would be quite adequate. The proceeding would be a sort of “no holds barred” competition between the advocates, testifying to unseen facts, privately visiting with judge and jurors, quoting statements made by absent witnesses and, in general, having a fine old time selling their sides of the dispute to an entertained, if not enlightened, audience.


But this performance is not the adversarial system. It is not designed to do what a trial should do. Finding out just what the adversarial system is designed to do hearkens me back to my freshman courses in Practice, Procedure, and Evidence—We were taught a short provision of the old Code of Georgia of 1933, which reads: “The object of all legal investigation is the discovery of truth.”


That one, simple declaratory sentence states the purpose of the adversary system. All that is done, by lawyer, judge, juror, witness, court reporter, and bailiff is done for the single purpose of ascertaining the truth. The object of a trial is not that the plaintiff or defendant win. It is not to confront the claimant with so much expense and delay that he surrenders much of that to which he is entitled, nor is it to burden the defendant with ruinous costs of defense to be avoided only by payment not owed. What distinguishes the adversarial system, with this pure, simple purpose, from the brawling, “streetwise” contest earlier envisioned? The definition I earlier suggested leaves out the essential ingredient, The Rules.


Each and all of these rules are adopted to one end, that the result of the proceeding shall be the truth. A trial conducted under the applicable rules is, I submit, the best method yet devised for discovering the truth about an issue, leading to its resolution justly under law. When the applicable rules are violated, to that extent the purpose of the adversarial system is defeated. One who counsels members of the bar to give only lip service to the rules governing trials and deliberately violate them whenever they can “get away with it” is urging that the discovery of truth be abandoned as the purpose of a trial.


We find in the Federal Rules of Evidence: These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined. Fed. R. Evid. 102.


Wanting to Win
What trial lawyer does not want to win? Those who find winning and losing to be of no moment are of no value to their clients or the system. The adversarial system depends upon able advocates “sweeping the corners clean” to discover and present that which, materially, supports the client’s cause. Absent good and energetic advocates, important matters may be overlooked.


Because the thrill of victory versus the agony of defeat is so much part and parcel of trial law, we may get so far into the forest, seeking victory, that we cannot see the forest—the profession.


Have I unfairly overlooked the message of the “Streetwise Litigation . . .” article? Is it possible that it keeps the truth-seeking purpose of litigation in mind and is merely positing that rule bending and rule breaking actually lead to the discovery of truth? I returned to the article and read it, again, line by line. Nowhere is truth mentioned; justice is ignored. Winning, though, is emphasized. The authors aim the reader at winning and claim that the improper tactics they advocate will sway the jury to the rule violator’s side of the case regardless of the evidence. This is just another way of saying that the tactics posited are not only improper but that the improper conduct is highly prejudicial. Being prejudicial, when these tactics are employed, they should lead to mistrial or reversal, all to the waste of judicial, counsel and client time and resources.


What Do We Learn?
Obviously, I am critical of the article. Yet, I submit that we can learn something of value from it. Not only does the article recommend that trial counsel operate outside the rules, probing and testing to discover opportunities to act in defiance of them, but it also reveals the expected results of such conduct.


The results are disturbing. No trial is perfect. In hard fought litigation with well-trained counsel seeking to conduct themselves according to the rules, there will be errors great or small from time to time. Despairing of perfection, we have developed the concept of harmless error. Error occurs, but it is not considered harmful. Even error that prejudices the effort to find truth, if not seen as serious, may be overlooked if the judge tells the jury to disregard what has improperly been presented to them.


But Gary C. Dobbs and George R. Speckart, the authors of the article, have done commendable research—perhaps more anecdotal than empirical, but nonetheless persuasive—and have related their undoubted experience and expertise. The result is disturbing. Rule defiance sways juries. Jurors are not likely to remember judges’ instructions to disregard—but will remember what the rule bender wants them to remember about the product of breaking the rules. We learn from this article that, once the pure stream of justice has been polluted, it can rarely be refined. Wrongful conduct produces benefit to the wrongdoer. Trial judges must not assume that an instruction will make the prejudice go away. Mistrials and reversals, apparently required, will clog court calendars.


The offending party ought to be required to reimburse the opposing party for fees and expenses incurred in preparing for and conducting the trial to the point of mistrial. If the defendant committed the impropriety, execution could issue. If the wrongdoer should be the plaintiff, a retrial might be contingent upon a showing that such an award had been paid. In this way, the rules could be vindicated and the truth discovering purpose of the legal proceedings be reinforced. However, these comments are not addressed to the judiciary, urging the exercise of judicial authority to restrain “streetwise” conduct. Here, I am writing to lawyers. Unless lawyers abide the rules because they are devoted to our truthseeking processes, those processes are not likely to survive. I may be suggesting that trial lawyers were more professional than litigators.


Afterthought
The judicial system in which we and we alone are the officers is designated as the method of resolving disputes. Society reposes such faith in our work there that the rich and the poor, the powerful and the weak, great commercial institutions and, even, the American government, itself, is bound by the system’s determinations. When our having that franchise no longer serves the interests of society, society can and, I submit, will cancel it. Should the adversarial system cease to be carefully crafted to produce the truth of contested issues, it will no longer serve the interests of society.


Keywords: litigation, tips, courtroom tactics, adversarial system


James C. Hill is Senior Judge, U.S. Court of Appeals for the Eleventh Circuit, in Jacksonville, Florida.


This article was adapted from a longer one that was published in the Summer 2004 issue of Litigation.


 
  • August 10, 2011 – My primary reason for writing is to thank Justice Hill for a wonderfully reasoned and written article. I wonder, however, if its intention is not more aspirational than confirmational? A "search for the truth" sounds more like the work of the European administrative system than that of the common law American system, which has a special reliance on its function and outcomes for the political support that is mentioned in view of its reliance on precedent v. administrative code. Hopefully, both systems use any truth that is revealed as a tool to fashion justice, rather than an end in itself.

  • August 10, 2011 – Wise counsel. Those who flaunt the rules usually have insufficient talent in law, rhetoric,and the psychology of persuasion, to be successful within the rules. Either a mistrial for rules violation, or reversal on appeal after a favorable judgment on a verdict is extraordinarily "costly" for a plaintiff - tort attorney. As a lawyer who represents individuals and usually confronts institutional/corporate defendants, I strive to abide by the rules, and find opponents have much greater financial ability to undergo multiple trials. Consequently, the party more likely to disregard the rules is the one who can better afford adverse consequences of rules violations. It would be interesting to do statistical analysis of plaintiff personal injury litigant "losers" who appeal versus defendants who appeal. My anecdotal observation is that institutional defendant -litigant losers- often appeal, whereas individual plaintiff tort victims rarely do so. The economics always tilts the adversarial system toward the wealthy, and is not simply crafted to produce the truth (an elusive abstraction) of contested issues. Respectfully, I enjoyed your observations.


  • September 27, 2011 – As a trial consultant, and one highly skilled in the psychology of persuasion, I find myself in complete sympathy with Judge Hill's concerns.  I cannot speak for other trial consultants, but I can say that the focus of my work is to find a way to help jurors understand the truth, not to conceal it.  The truth is often vastly more complex than the memes and motifs  often employed to sell injustice to those unprepared or unable to parse competing case presentations in accordance with the court's instructions.


    I also happen to be acquainted with Dr. Speckart and know  him to be a man of great integrity.  Certainly, he is not one who would encourage the use of tactics that might cause a miscarriage of justice. 


    Let me therefore suggest that there is a reason that Judge Hill finds a missing ingredient in Dobbs' and Speckart's article.  And the reason is quite simply that, with all due respect to the Judge, discussions of truth seeking are not only out of fashion, but are politically incorrect in the extreme. 


    Ours is no longer a culture that recognizes the legitimacy of truth seeking in any public forum, not even the courtroom.  In our post-modern, cultural relativistic, all-inclusive, non-judgmental nation of victims, truth seeking is a concept that is now as outdated as the belief in a flat earth.  It has been replaced by victimology.  Truth is relative to the victim (unless the perpetrator happens to wield power.)   Truth-seeking  is no longer taught in our education system and is instead, in virtually all secular institutions of higher "learning," more likely to be denounced as a hobgoblin of small minds or some other throwback to primitive, unenlightened thought, an artifact of a bygone era of Anglo values and racist epistemologies. 


    Our nation's judicial system has not been merely a spectator in the development and metastasis of post-modern, de-constructionist 'thinking" (an oxymoron if there ever was one) but rather a champion of this unbridled and uncivilized nonsense.  Criticizing Dobbs and Speckart for failing to pledge alliance to the truth, or for failing to encourage others to do so, in a professional, social, educational and political environment that heaps scorn and contempt on those very concepts is, therefore, either naive or unfair--an anachronistic display of idealism in a culture not just of narcissism but, more deeply, of cynicism and mass delusion. Think Hope and Change.


    Just as there are lawyers who subordinate the judicial goal of truth-seeking in the interests of serving the client s interests, there are also trial consultants, experts, graphics professionals and so on.  For example, there were trial consultants on both sides of the O.J. Simpson and Scott Peterson cases, just as there were lawyers representing those defendants. 


    Would it really offend anyone to discover that any civil or criminal lawyer felt a primary duty to his/her client to win?  It is the fact-finder s duty to seek the truth, assuming their Pavlovian training in post-modernism, cultural relativism, inclusion, and non-judgmentality has not degraded their ability to discern fact from fiction, truth from falsehood, guilt from innocence, and justice from injustice.  The trial lawyer s job is merely to make the best case possible for the client  --  a duty shared by the trial consultant.  When the fact-finder is a jury, it is up to the judge to referee the competition with all of the tools at his/her disposal.  Ultimately, however, it is up to the jury to decide what is fair play, even when it is called foul. American juries are seldom composed of twelve, nine or six perfect jurors and judges are not infoulable either (if you ll forgive the pun).  Who is surprised? 


    We trial consultants continue to be astonished by judges  apparent belief that a jury instruction to ignore evidence actually works, or that a juror admitting bias can be  rehabilitated  by a judge asking him/her (in effect) if s/he really means it!  Recalling the immigrant who, in voir dire, stated her contempt for African Americans, what was more instructive was the judge s response to her candor: a contempt citation.  (What do you suppose that said to the rest of the venire?)  I truly expected him to try to rehabilitate her.


    Suffice it to say, lawyers and judges have a lot to learn about human nature.  That is why there are trial consultants.  In truth, I believe trial consultants could be of great service to judges, especially in voir dire, the composition of jury instructions, and in all communications with jurors, or with counsel, in front of jurors.  Seeking the truth requires a deeper awareness of human psychology and understanding  just how easily human judgment is influenced and by what means.  If justice and a fair trial mean a courtroom free of taints, then it is time to clear the courtroom and install automatons in their place.  The best alternative would be courtroom psychologists with specific education and training in communications, biases, judgment, decision-making, and even psychological screening (since there are so many people on psychoactive drugs, not to mention those who should be).  Lawyers cannot be all things to all men.  Our world is too complex .



 

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