As always, before reading my post please review my disclaimer by following the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
After I refused to watch for a great deal of time, last week my wife finally convinced me to watch an episode of ABC's How to Get Away with Murder. Honestly, I was horrified. The story was certainly captivating, and for artistic purposes, I don't fault it for that, but its portrayal of both law school and legal practice is not only completely unrealistic, it actually perpetuates some negative stereotypes about lawyers and the practice of law that I find appalling. In fact, in the one episode that I watched, completely ignoring the backstory of the murder of the professor's husband and just focusing on the cases dealt with in the episode, the professor and a US Attorney both engaged in conduct that in real life would get them disbarred, and one of the students also engaged in conduct that in real life would disqualify him from being barred.
To that end, it got me thinking about the many myths about the practice of law that exist out there, and how many of them are harmful to the legal profession. In today's blog post, I will address some of the pervasive myths about the legal profession I face - some of them will be directly inspired by this episode of How to Get Away with Murder, some will not - and the truth that these myths overlook.
Myth: Lawyers can lie to a witness while testifying to get them to admit to something damning.
Reality: Lawyers are strictly forbidden from lying, in any capacity, in their work. Lying during a trial or other official proceeding is a quick way to get disbarred.
In the episode of How to Get Away with Murder that I watched, Annalise (the professor/lawyer) represents a woman accused of insider trading. Annalise arranges for a deposition of two employees of the woman and works with the US Attorney (prosecutor) to get them to confess. First, Annalise presents a stack of papers she claims is the transcript of the other employee implicating the witness and then the US Attorney offers to give the witness a deal if he or she confesses. Both witnesses confess and are arrested, Annalise reveals the stack of papers were just notes, and the US Attorney admits he has no deal to offer.
I'm going to ignore the fact that there was a deposition - depositions are pretty much exclusively used in civil cases, not criminal cases - and focus on Annalise's and the US Attorney's conduct in the deposition. As stated above, attorneys cannot lie. My post on legal ethics gets into this in more detail. There's a reason that police officers conduct interrogations, rather than prosecutors - police officers can lie, prosecutors can't.
As a result, Annalise would be facing disbarment in the real world for her stack of papers lie and the US Attorney would be facing disbarment for his lie about offering a deal.
The takeaway is, when you are dealing with a lawyer who is acting as a lawyer, she cannot lie to you. If she does, you should report it to the Bar immediately.
Myth: Lawyers are generally greedy people who are only interested in you for your money.
Reality: Lawyers have many motivations in what they do, and while some are, in fact, greedy, just like in any other profession, most lawyers are in the profession because they find it interesting and rewarding on an emotional level. Like all professionals, however, lawyers do expect to get paid for their work.
This particular myth is one that bothers me. Once upon a time I had a client's father accuse me of being only interested in representing his daughter so I could milk as much money out of her as possible while she suffers in her conflict with her estranged husband. What he didn't know, and I couldn't tell him at the time, was that his daughter hadn't paid me in months, had no prospect of ever paying me for the work I was doing, and yet, there I still was, fighting for her every day.
We are professionals, like doctors, accountants and carpenters. We do expect to be paid for the services we provide - you sign a contract with us agreeing to do that before you hire us. That doesn't make us greedy. This is our job, just like you have yours, and this is how we make our living and feed our families. I have very low tolerance for people who assume lawyers are greedy because we, heaven forbid, ask them to pay us for the work we do for them. These same people don't bat an eye at paying their doctor, their accountant, their home contractor, etc., yet they expect us to somehow work for free.
If you believe your lawyer is really only in it for the money, then you've either done a bad job choosing your lawyer, or, more likely, you need to figure out why you're so offended that they want you to pay them to begin with.
Myth: We have way too much litigation today. We need tort reform to bring about some sanity.
Reality: Litigation rates in the United States peaked in the 1970's and have been dropping steadily since. Tort reform, in states that have enacted it, has led to substantial abuses of power by the powerful at the expense of the weak, and does practically nothing to prevent the filing of frivolous lawsuits.
My answer in the "reality" really covers this a great deal. The fact is, while sensational stories abound, litigation rates are dropping in the US, and have been for about forty years. While this is only my opinion, tort reform does practically nothing to reduce frivolous lawsuits. It doesn't help individuals who are sued, since the limits still tend to be high enough to still put individuals into bankruptcy, but it does protect mega-corporations, to whom the limits are laughable amounts of money that cause them to give no pause or concern about the potential costs of their actions.
All of this ignores the fact that many of the "frivolous" lawsuits we hear stories about aren't even frivolous. Let me give you an example.
Let's say a company made a commonly used product that is moderately dangerous. Everyone knew the danger level of this product, though, so they generally took precautions, and understood that if they didn't, they might get a little hurt.
Now, let's say that the company determined that it could make more money by making this product even more dangerous - and not advertising that they've done so - under the assumption that by the time someone actually uses the product after purchasing it, the product will be back to its normal danger level. Now, let's add on that dozens of experts have written to the company warning it about just how dangerous their product has now become, but the company ignores those warnings and continues to make their product that much more dangerous without warning consumers.
Finally, a woman purchases the product and injures herself with it. Her injuries are not what you would normally expect from this product under its normal danger level - in fact, she has to go to the hospital, have major surgery, and will be in pain the rest of her life. In court, it is conclusively proven that the extent of her injuries was caused by the increase in dangerousness of the product. Wouldn't you agree that this woman, who had no warning of how much more dangerous the product was, who had major surgery and will be in pain the rest of her life, deserves some very substantial compensation?
Well, I've just described to you the infamous "McDonald's Coffee" case. McDonald's knowingly made their coffee 20 degrees hotter than normal, and was repeatedly warned by experts that this was dangerous - yet they ignored the warnings. The woman that ultimately sued had third degree burns on six percent of her body, required extensive skin grafting, is permanently disfigured and in pain, and was disabled for two years following the accident. This was not a typical "coffee burn," yet so many people hear only the top line of the story and say "duh, coffee's hot, lawsuits are out of control." As an added fun fact, in this case, even though the jury awarded the woman $2.9 million (which is what got all the press), McDonald's ended up paying less than $600,000.
The fact is, when you investigate other frivolous lawsuit stories, you find similar flaws. This, the fact that tort reform does far more harm to the poor and powerless than the rich and powerful, not "greed," is why lawyers overwhelmingly oppose it.
Myth: It's a court's job to deliver justice and when a court makes an unjust ruling, the court itself is unjust.
Reality: It's a court's job to apply the law to a given situation presented to the court and when a court makes an unjust ruling, frequently it is because the law is unjust.
I can't count the number of times I've heard a judge say "well, I understand your point, but that's something to raise with Richmond [where our General Assembly sits], not with the court." The reality is, if an unjust result is dictated by the law, unless you can find an actual constitutional principle that is violated, the court is powerless to do anything but make an unjust ruling. In fact, ignoring the law and making the just ruling would be good grounds for the judge's removal from the bench.
When a court rules against someone I always tell them to listen carefully to why the court is doing so. Most judges will give some explanation of their ruling. Nine times out of ten, where a result is unfair, it's still the result mandated by the law. In January, I wrote a blog post about a case I was handling where the other side was unrepresented, and didn't get most of her evidence even considered by the court because it was inadmissible. Now, I believe in that case I was representing the right side regardless, but the fact is it was not an injustice by the court that her evidence was not considered - its inadmissibility was clearly required by the law and the Rules of Evidence. What I remember most, however, was the exasperated exchange she finally had with the judge. When the judge asked her what theory of the case she was possibly proceeding on, she responded, "I'm seeking justice, this is a court of justice!"
The judge responded, "I'm sorry, ma'am, but this is a court of law. It is only a court of justice when that justice is authorized by the law."
That judge was exactly right. We do not have "courts of justice" in this country, we have "courts of law," and when the law requires injustice, injustice is what you will get in court.
Myth: The courts are biased against men/women, minorities, the poor, etc.
Reality: In my experience, I have seen almost no evidence indicating that the courts are biased against anyone. Some individual judges, maybe, but the courts or legal system as a whole? Almost definitely not. That being said, I do think there is, oddly enough, a flaw in our system that produces extra difficulties for litigants and defendants who are lower middle class.
I hear this myth all the time. Most of the time it's from people who have had their own bad experiences in court, and really I am left with little else to do than smile and nod. I know there are judges here and there who have clear biases - they definitely exist - but imputing those judges on the whole system is ridiculous. Nonetheless, psychologically, I've discovered that not only is it easier for someone to believe that his or her loss in court was someone else's fault due to bias, but it's also easier to believe that they are not alone. As a result, while it's much easier for that person to believe that "the system" is stacked, rather than that they deserved to lose, it's also easier to believe that "the system" is stacked rather than just that that person's particular judge was biased.
Nonetheless, my own experience tells me otherwise regarding "the system." I see many more cases than the individuals who come through the court, and with only one exception I can think of, I have never seen a judge I believed was biased, and I have seen no sign that "the system" is stacked. Certainly judges make rulings I disagree with all the time, but even then I have never seen anything to lead me to believe it is due to systemic bias.
Now, as I said above, there is one flaw with our legal system that I do wish would be fixed and that I think tends to harm the lower middle class (the "working class"). This has to do with lawyers, and the inherent disadvantage you are at in court if you do not have a lawyer.
In criminal law, as you probably already know, poor defendants are entitled to have a lawyer appointed for them, but how do you determine who gets to have an appointed lawyer? Well, they fill out a questionnaire about their income and assets, and if they fit below certain thresholds, they are considered poor and get a lawyer appointed. What about the people right at the threshold? The people who have little money, but just enough to not get a court-appointed attorney? Well, they're out of luck - they have to hire their own attorney, and pay just as much as the rich defendant has to pay.
The same is true to some extent in civil cases. While poor people do not get court appointed attorneys in civil cases, they can often get free attorneys from their local legal aid or a law firm doing pro bono hours. Again, there are income qualifications, and those on the cusp are left out to dry.
What often ends up happening in those situations is that the client doesn't hire an attorney at all - and then gets harmed badly in the legal proceedings. This is a problem, and one that begs a more creative solution.
Some areas have experimented with what I'd call "partial appointment," and this is something I'd love to see expanded. The idea is that after your income and assets hit a certain level in a criminal case, you could still get a court-appointed attorney, but you would be responsible for paying a portion of that attorney's fees, with that portion being determined by how far above the threshold for a free attorney you are. That way, you can hire an attorney you can actually afford.
Some legal aid agencies also do this. The legal aid agency still provides the attorney, but you pay the agency part of the cost of that attorney. I don't know if any agencies in Northern Virginia do it, but I have heard of others throughout the country. I think this would be a worthwhile experiment for the legal system, and one to help curtail the one systematic disadvantage I do encounter regularly.
Conclusion
There are many more pervasive myths about the legal world, but this post is already getting long, so I will wrap it up here. You can look for this to be a continuing series in the future.
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