Truth is Different From Fiction

Posted on Tuesday, December 3rd, 2013 at 1:00 am    

At one time or another, most lawyers have had to field questions from a client about something that’s been in the media.  Whether it’s a TV show in which a hapless witness gets raked over the proverbial coals by a ruthless and relentless opposing attorney, or a news report of an eye-popping jury verdict (usually from outside New England), we have to be aware of how our clients may perceive what they see and hear.  With that in mind, I offer a few reminders for lawyers and clients.

1.  Real life courtrooms look nothing like TV trials, and New England trials look very little like trials in many other parts of the country.  Fictional TV trials are scripted for brevity and drama.  Judges scold, lawyers yell and make speeches, and witnesses break down and confess all.  In real life, and especially in our conservative local jurisdictions, such things happen rarely.  Decorum and respect prevail, and it’s very unusual for a client to be attacked by an opposing lawyer, and even rarer for a witness to admit a mistake on cross-examination, no matter how obvious it may seem.  The take-home message for  clients: expect the trial to be more boring and less scary than TV.

2.  Defense verdicts don’t make good news.  Anyone who follows trial reports would think that the plaintiff nearly always wins–because that’s what gets reported.   Yet as every judge and lawyer can attest, the vast majority of personal injury trials end in verdicts for the defendant, with the injured party receiving no compensation whatsoever.  One reason, of course, is that many, if not most, cases have been settled before trial, especially the cases in which the defendant is fairly certain to lose.  But another reason is that readers and viewers find headlines reporting large-dollar awards much more interesting than stories in which the victim gets nothing.  And a third is that defense verdicts are so common that they’re not news.  Take-home message:  while news reports of “similar” cases may be interesting, they’re unlikely to have much to do with your case.

3.  Medical information and advice on the internet can be incomplete, misleading, or flat out wrong.  It’s a rare client who hasn’t googled his or her medical condition to get information about diagnosis, treatment, prognosis, and other details.  In the process, many clients become convinced, based on what they’ve read, that they have an open-and-shut case.  Take-home message: very little on the internet is admissible in court, and like court cases, medical situations vary from person to person.  So while the internet may provide interesting background reading, it’s no substitute for qualified expert evaluation of the specific case.

While it might seem tempting to ask clients not to read or research their situations, it’s neither realistic nor desirable.  Just as criminal lawyers usually don’t want jurors who claim to know NOTHING about a notorious and well-publicized crime (are they trying to get on the jury to get a book deal or have they been living under a rock?), I’d rather have a client who reads voraciously, thinks critically and questions thoughtfully.  Remember, jurors are exposed to the same sources as your client, and the client’s thoughts and questions, even filtered through the light of self-interest, are an important window on how the non-lawyer public may view a case.

But unlike clients, who often freely offer up thoughts about information in the media, the opportunities to find out what jurors have seen and read, and how it’s influenced their thinking are minimal before trial, and virtually non-existent during trial.  Later this week, I’ll talk about that problem.