Regular readers of this blog know that I am interested in the feedback loop between popular culture and the law. Recently, I watched “The Judge,” a Robert Duvall and Robert Downey, Jr. film.  And as I did, I wondered about the impact of the film on the public’s view of lawyers and judges.

The film is a story of conflict between father and son and between the law and the Judge. The basic plot is this: The Judge is terminally ill. He does not want anyone to know. His memory is suffering, and in the aftermath of his wife’s death and funeral, he is charged with a fatal hit and run. He doesn’t recall the event, but it turns out that the victim is a man the judge once leniently sentenced for domestic abuse. After release, the abuser had murdered his domestic partner. The accusation is that the Judge subsequently took the law into his own hands and intentionally killed the abuser. One of his sons — the black sheep of the family, but a highly successful big city trial lawyer — defends him.

Early in the film, the Judge awakens from a nightmare. Is he afraid of the trial? His death? We don’t know. It’s a matter of interpretation, and each of us can decide on our own what we think it means.

But the Judge tells us that he is proud of those he has sentenced who have then found their way to a new and better life. Is the Judge’s psyche working through the decisions he has made in 42 years on the bench that have deeply influenced many human lives? After all, no one could make all those decisions correctly.

Later, at trial, the son examines his father. His memory failing, the Judge admits that he may have killed the abuser. Asked why he previously gave the abuser a lenient sentence, the Judge responds to his son’s question:

I looked at him and saw you. I saw my middle son. My little boy. I wanted someone to help him. Like I would help my little boy, if someone had lost his way. I wanted to put my arms around him. I looked at him and saw you.

Is the movie unrealistic? Even wildly unrealistic? Sure, but fiction offers the opportunity to juxtapose incredible combinations of facts to show real conflicts in highly dramatic relief.

So in an overly dramatic way, does the movie reflect the reality of the burden judges carry? I think it does.  What kind of human can do the job of sentencing? It is only for those with mental callouses thick enough simply not to care?  Can a judge be aware and compassionate and do the job?

We do justice this way because we don’t have a better way. We don’t have infinitely wise beings to make such decisions. We only have some among ourselves who are willing to try to wrestle with these burdens, and who are chosen to do it. Some do it better than others. None will be perfect.

The good ones will struggle with themselves in the process, but find a way to handle it. The poor ones see nothing to struggle over.

Perhaps some members of the public will understand this a little better if they watch “The Judge.”




Jurors_listening_to_counsel,_Supreme_Court,_new_City_Hall,_New_York_(Boston_Public_Library)Over the years there have been a number of proposals to permit jury verdicts in civil cases in Vermont to be made by less than a unanimous vote. Debate over these proposals seems to largely divide the bar along the lines of the clients the debating lawyers represent: most plaintiffs’ lawyers favor such proposals, while most defense lawyers oppose them.

This year there is another such proposal. Senators Sirotkin, Cummings and Sears have proposed S.65, a modest bill that would set up what amounts to an experiment with non-unanimous civil trials in Vermont. It would allow a verdict with not more than one dissenting juror.

If adopted, the legislation would sunset – be repealed without further legislative action – as of January 15, 2019. In the interim, it would direct the Office of the Court Administrator to study the effects of the Act, particularly with reference to the number of hung juries, the average amount of jury verdicts and the impacts of the legislation on the Courts.

I like the experimental spirit of the bill, although, as the number of jury trials conducted in Vermont in a year are few, and this experiment would not provide any window into what happens in the “black box” of jury deliberations, I don’t have high expectations that a great deal would be learned.

This discussion should take place in light of what is already known about jury deliberations. As trial lawyers we may think we know what is going on the jury room. We really don’t. We participate in creating the inputs to the black box and we see the results that come out. We have no way of knowing what went on during the deliberations except what can learn from those occasions when we can and do interview jurors. But jurors are reluctant to tell us much. They may be discouraged from doing so by their oath or by what the judges tell them about talking with the lawyers. And any particular juror’s understanding of the process is imperfect, blurred by memory, and affected by tendency to justify the verdict.

But there is a narrow window into the black box of jury deliberations. As our bar and legislators consider this subject, that window is worth a look.

Because it is nearly unique and important to my trade, for years I have followed the research of Shari Seidman Diamond and her colleagues at the Arizona Project. With funding from the National Science Foundation and the American Bar Foundation and the cooperation of the Arizona Supreme Court, between 1998 and 2001, the Arizona Project videotaped a set of fifty civil trials – including jury deliberations — conducted in Pima County, Arizona. Jurors were repeatedly assured of confidentiality and the taping and recording was done discreetly.

Professor Diamond and her team have been studying the data and publishing the results ever since. The products, seven published articles, seem to me to be essential for those of us who try cases and advise clients about settling them.

One of those articles, S. Diamond, M. Rose & B. Murphy, Revisiting The Unanimity Requirement: The Behavior Of The Non-Unanimous Civil Jury, 100 Nw. U. L. Rev. 201 (2006), directly addresses the kind of proposal on the table in Vermont. It reviews the previous scholarship on the subject and draws heavily on the Arizona Project data and observations.

I won’t try to summarize the entire article here. If you are interested, you should read it. But as a plaintiff’s lawyer, some of the observations surprised me. Here are the conclusions that seem relevant:

1. Very few hung juries occur in civil cases.
2. Holdout jurors do not systematically favor one side over the other.
3. There is no evidence that jurors who were outvoted in the study (Arizona does not require unanimous verdicts) were advocating for indefensible positions.
4. The requirement of unanimity seems to encourage “earnest and robust argument” in jury deliberations.
5. Jurors on unanimous juries appear more enthusiastic about their deliberations and have more confidence about the correctness of their decisions and the quality of their process.

From my perspective, this does not mean that discussion of S. 65 should stop. Instead, it suggests that if Vermont is to adopt it, we should emphasize its experimental nature and find more to do test its impact.


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ABA Calls for Repeal of “Stand Your Ground”

February 13, 2015

At its meeting in Houston, Texas on Monday, February 9, the American Bar Association House of Delegates called for the repeal of “Stand your Ground” laws. Some 33 states have adopted Stand Your Ground laws. At common law, individuals who were confronted with an imminent threat of deadly force in public space, had an obligation […]

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Got Link Rot? Try Permalink!

February 4, 2015

Jill Lepore’s article, The Cobweb: Can the Internet be Archived?, from last week’s The New Yorker (January 26, 2015) discusses an issue for courts and lawyers. Footnoting, a lawyerly habit, is all about documenting your proof. As the article says, the classic idea of the footnote is documentation that says, “Here is how I know this and […]

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I Guess That’s What Makes Horse Races … and Lawsuits!

January 22, 2015

If more than 30 years of practicing law has taught me anything, it is that few things are as easy as they look. That includes the practice of law itself. Let me use a recent victory to show you what I mean. In Vermont, we have a statute that regulates the hiring and firing of […]

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Help for Clients with Severe Emotional Trauma: Try A Little Yoga

January 13, 2015

From time to time, lawyers may grapple with the problem of representing individuals who have suffered significant emotional trauma. I know that I do. These clients and their cases can be particularly challenging: claims adjusters, opposing counsel, jurors, and even the courts, can be skeptical about claims in which emotional damage is a significant factor. […]

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The Pardon as Justice, not Mercy: “A Pardon Celebrates the Life of a Public Defender”

January 2, 2015

The Story of Albert Stork, a person with a record of conviction who lived an exemplary life and won a pardon.

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A Repost: “Don’t Buy the Snake Oil: Take the Long Road to Contentment”

December 29, 2014

As a blogger myself, I am a reader of other blogs. The world that we live in — in which virtually anyone can be a publisher — has unleashed a torrent of knowledge and creativity. So, it’s not unusual for me to find material that I really admire on the web. There are a number […]

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The Old Bailey in Action

December 8, 2014

As lawyers, we are practicing historians. We argue precedent and try to prove what happened in our cases. I started watching “Rumpole of the Bailey,” — a mid-1970s BBC television series about a fictional  London barrister whose practice focused  on  representing indigent defendants in criminal cases — about  the same time I started law school. So […]

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“Defend the Children of the Poor and Punish the Wrongdoer” — Part II

December 1, 2014

Last time I wrote about the inadequacy of the criminal justice system to “protect the children of the poor” from child abuse. Whether or not the Psalms are divinely inspired, they often contain real wisdom. According to the Psalms, the wise king (or government) does not try to protect children solely by punishing wrongdoers. A […]

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