Monday, July 3, 2017

Mean People Suck

This was originally going to be a post on juries, and it still is, but it's expanded to one on the practice of law and, maybe, on life in general.

And the them is . . . Mean People Suck

Okay, what a giant whopping piece of insight that is, right?

Well, a lot of people haven't gotten the message, fairly clearly, and it actually does impact itself in the practice of law, and in daily life.

Here's what I mean, and I'll start with juries.

Well, actually I won't, I'll start with bumper stickers I started noticing a few years ago which appeared on the back of cars owned by young people.

Those bumper stickers said:  "Mean People Suck"

This phrase is one that caught on amongst millenials and it apparently caught on to such an extent that the basic phrase completely ran over the top of an originally obscene and stupid phrase to become the meaning it now has.  Mean people, the young are proclaiming, suck. We don't want them, we won't tolerate them. 

And its not just a simple bromide. They mean it.

On to juries.

Juries, as everyone knows, are supposed to be made up from a cross section of society. And at least around here, they really are. That means that the attitude of juries towards various things changes with the times.

A person could go on about this at length and really go down a rabbit hole, which I don't intend to do, as I intend instead to focus on one single thing, that being a generational change.

Modern juries hate mean people, including mean lawyers.  Maybe in particular they hate mean lawyers.

This wasn't always true.

I don't think it was true as recently at the 1970s, frankly.  And that's not all that long ago.

As recently as the 1970s juries seemed to want a show from lawyers. And that show involved ambushing some poor witness and harassing others.  Even popular depictions of lawyers were like that.  Take, for example, Al Pacino's depiction of a trial lawyer in With Justice For All

What exactly was up with this is something that could have been a treatise in itself, but my theory on it is that this reflected the generational nature of the mostly Boomer juries and the educational disparity between the juries and the lawyers.  While the Boomers were the first generation for which college was within easy reach, they were also a generation that didn't require college in order for the members of the generation to find work and careers.  Lots of them did not have that, and in contrast the lawyers seemed highly educated.

Indeed, lawyers of that era were still basking in the glory of the then conservative American Bar Associations efforts to drag the profession of the law out of the muck it had been in during the late 19th Century.  People familiar with the ABA now may associate it with an endless series of resolutions for left wing social causes and hand wringing angst over the fate of lawyers in White Shoe Firms, but that isn't why it had come about and that isn't what it once was.  Indeed politically it was quite conservative. Professionally its efforts had been focused on getting law school education for lawyers to be the national norm and on making sure there were state bar exams.  By the 1930s its efforts had really paid off and there was a real professionalism that existed in the 30s, 40s, 50s and 60s.

By the 70s, however, that was wearing off and the ambush people style was coming in.  Juries apparently loved it.

They don't anymore.

And that's because the Post Boomers aren't like the Boomers at all.

They're better educated and, if they aren't educated on any one topic, they can be by the end of a lunch break just be checking Google on their phones.  They know that they know, or can know, as much about any one topic as the lawyers in short order, and they don't respect the lawyers simply because they are lawyers. 

Be mean to a witness and they'll get even.

But how did the lawyers get that way?

Probably because it worked.

And they stay that way, in part, because the human learning curve on things is slow for failure, if quick for success.

Indeed, even now the plaintiff's bar is fond of the "lizard brain" theory which holds that you have to appeal to people's most primitive emotions, and that's how you win in front of a jury.


Jurors never operated on lizard brains at all. Rather, there was a time that they appreciated a gladiatorial contest.  Keep in mind, however, that even in a gladiatorial contest the audience didn't care who lived or died that much.  They might root for a fellow who fought well and then not have saved him if he fell.

 Illustration of a gladiatorial contest.  This illustration from 1872 contains a popular error in that thumbs down mean that the life of the fallen gladiator was to be spared and thumbs up mean it was to be taken.  This sort of depicts the relationship of lawyers to jurors in the 1970s. . . but not anymore.

Now, however, they don't want people falling unless there's a reason for them to do so, and just dispatching people for sport. . . . well take your lizard theories and shove them.

The lögberg in Thingvellir where the original Icelandic Althing was held.  Modern juries are more like this.  They know just as much about whatever the topic is as the advocates do. . . and they figure everyone is part of the same group.  The only lizard brains here are in the heads of lawyers who figure they're the big brains and who are out for blood.

So that's the new reality about juries, and its one that's going to take most trial lawyers a long time to figure out. And that's what I was originally going to post about here.  But it occurs to me that because being mean, and being a lawyer, seem to go together, perhaps I should go beyond that.

Are lawyers mean?

Well, some certainly are. 

And that becomes pretty apparent to those who are in direct contact with lawyers everyday.  Consider this blog, which is a cri de coeur from a paralegal.  Well, former paralegal, that is.  Indeed, consider this post:
But I do remember. I remember how awful most of you were – not just to your lowly staff, but to your own family members and to each other, and your clients too. I don’t hate you anymore, but I still think most of you are absolutely awful human beings, and I am thankful that I don’t have to get in the mud and dirty myself with you anymore.
Sour grapes?  I doubt it.  That view from people who are close to lawyers, well at least litigators, is pretty common.
And not just amongst paralegals.  It's common amongst lawyers too.  If you blog it you'll find plenty of posts by lawyers about being surprised and appalled by hostile the work is and how mean everyone associated with it is.

This of course is likely limited to litigation.

And to repeat a question above, how did that come about?

Hmmm. . . . ., the image above might offer a clue. 

Because it worked.  That's been explored above.  Logic would hold, therefore, that at some point this will reverse and not only will the mean people suck, but they'll be less successful and their numbers will accordingly reduce in the field.

But to expand beyond that, it would be unfair to simply suggest greed equates with meanness, although frankly to some extent it truly does. Greedy people can given into meanness and greed as a virtue of trial practice is another hallmark of the 1970s that still has its ongoing impact on the law. Indeed as lawyer incomes have declined overall, perhaps this feature may actually be worse to some degree than it once was.

Having said that, however, this is also a vice that seems much less pronounced amongst Millenials, so perhaps it's self correcting.  Indeed, an amusing aspect of this is that Boomers, who once eschewed all thoughts of climbing the corporate ladder before they seized it, fairly routinely express concern about this very thing.  I've heard it, with older Boomers worrying that Millenials do not seem motivated by the desire to acquire wealth. . . or anything.  But, in thinking about it, I can't see where a lack of materialism and avarice is a bad thing.

Of course, the problem of meanness in the law may have deeper roots.  One lawyer observed, in a reddit post, the following:
The skills/habits needed to be good at being a certain kind of lawyer can make you an asshole. These are things like:
  • Never admitting more than you have to
  • Never admitting fault in any way
  • Never giving more information than you have to
  • Keeping all of your options open as much as possible
  • Always looking for the advantage
  • Twisting someone's words against them
  • Trusting no one
  • Being willing to throw anyone under the bus to advance your (client's) position
You don't have to do these things to be a good lawyer. There are different styles of lawyering. This, however, is one of them. The thing is, lawyers like this are a pain to deal with. And too often, these habits leak into the lawyer's personal life. When they do, they destroy any close relationships that you have. This is why substance abuse (mostly alcohol) and suicide are very common problems in the legal community.
There's also the "defense lawyers protect evil dirty criminals" angle that some people have. And as a lawyer who sometimes practices criminal defense, or represents parents in child protection proceedings, I can understand that. The people that we "help" have sometimes done some pretty awful things. So how can we help them, with a clean conscience?
I look at it this way: If I'm charged with a crime, or if Children's Aid tries to take my kids away, I know the ins and outs of the legal system. I know how court procedure works, I know what evidence is going to sway a judge and what isn't, I know when taking a deal is a good idea, etc. So I have the skills and knowledge to mount as strong a defense as possible. Random Joe on the street doesn't know most of that. Shouldn't he be able to mount as strong a defense as possible? Isn't that his right?
There's something to that.

Perhaps put an even simpler way trial lawyers are mercenaries, basically, to they have the virtues and vices common to mercenaries. They fight for pay, and the essence of that is that they fight.

Mercenaries in the Congo, with rebel troops, 1960s.

But at some point fighting all of the time will impact your character, and you won't be able to turn it off as it'll just become part of you.  Anyone who is a trial lawyer will have met with some objection from a close friend or family member about the lawyer being argumentative or "arguing", when they don't even realize they're doing it.

That may be a minor aspect of this, but again at some point, arguing all of the time will become part of a person's personality and it means they run the risk of becoming a jerk.

Well, the good point of all of that, I suppose, is that it appears the societal incentive is running the other way, and that's a positive.  It's already working that way with juries. . . the legal field just hasn't noticed it too much yet.

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