Vail Daily column: Personality and the law
Don’t panic. They’re not legislating personality. At least not yet. It’s still perfectly legal to be a schmoe, or any other obnoxious thing you want to be (so long as you don’t tread on someone else’s toes), and the thunder of the law will not reach out and smack you up the side of the head. There are limits to incivility, of course.
What I mean by personality and the law has nothing to do with your offensive personal habits, traits or your demeanor. It has to do, instead, with those intangibles (those little things outside of the law and facts) that lawyers, judges and, especially jurors, take into consideration in determining your fate.
It seems a particularly propitious moment to visit this sometimes not-too-subtle aspect of the law, particularly in light of the recently commenced Conrad Murray trial, the recently concluded Casey Anthony trial and, in far away Perugia, and Amanda Knox proceedings.
An essential factor in consideration of “personality” in the practice of law is the character and disposition of the parties involved, as well as the personalities of their agents and representatives, the lawyers prominently included. Are the persons involved reasonable and cooperative or are they argumentative, arrogant, bellicose or belligerent? Clearly, the first portends that whatever disputes arise may be more or less susceptible to informal resolution and a course of negotiation may satisfactorily be developed where a dispute has already blossomed. What about the lawyers? Are they suffering from bloodlust, or are their purposes more noble? Are they seeking swift, effective and inexpensive resolution of disputes or counseling, instead, the trial of the century? As in most aspects of life, sizing up your opponent, or, equally, your partner, is an essential part of every deal and, similarly, every dispute.
Personality and the law extend more nefariously, however, into the murky catacombs of legal calculus. Rare is the trial attorney who has not sized up his or her own client (or his or her own witnesses) to determine how they will likely “play” to the court or to a jury. Will the witness engender sympathy? Is he or she credible? Will the jury believe the tale he or she is weaving? Even if the tale is true, some people’s delivery is simply better than others and woe be to the attorney who has not developed the skill of determining a spell-binder from a bore, a fabricator from a boyhood George Washington with glistening hatchet and struck down cherry tree.
Even if believable, will a jury like the witness (or the client)? However unimportant this should be under a system that promises equal justice, people, after all, are people, with all their prejudices, predispositions and peculiarities. Will the juror “hate” her because she’s too pretty or too thin? Will they not believe him simply because of the Rolex on his wrist or owing some other superficiality such as a mannerism or accent? Will a working class jury resent a successful businessperson or want to “send a message” to someone of a different economic background? Will race, ancestry or orientation influence the “audience” before which the witness offers his or her account?
The attorney’s decision of whether or not to try a matter to a jury is, more times than most of us would like to admit, one based on the sympathy we believe our client would evoke. Would this “play” better to a judge rather than to a jury of our client’s peers? Is the jury astute enough to get it? In complex or technical litigation, especially, will the jury be able to follow the complex jabbering of witnesses? Will we be able to keep the jury awake, involved and interested?
Increasingly, especially in “big” cases, litigation consultants are retained by counsel to help develop strategy. Litigation consultants can come in many flavors and can yield forth from many diverse backgrounds and fields of practice. They may include psychologists, media consultants, sociologists, and others. They might help the lawyer “train” the witness to “present” him or herself better, or more believably, or might help develop the gestalt or “tone” of the case.
Perhaps most common are jury consultants who, in essence, profile the jury, rather than the witnesses. They develop, in light of the kind of case presented and facts likely to be admitted, the kind of juror who may be sympathetic to your client’s plight. Would a middle-aged mother of four, for example, be more likely to believe your client’s version of the facts than, say, a 22-year-old-never-been-married college student? Would a construction worker better understand the context in which the facts repose than, say, a white collar middle manager? Often, these determinations, before the trial starts, can be critical. There are those who claim with perhaps at least some justification that “picking” your jury is by far the greatest predictor of the trial’s outcome, even greater than what anyone ends up saying on the witness stand.
One other thing should be understood. How, you might be asking, can the lawyers and their various consultants “pick” a jury? This leads us to voir dire, literally “to speak the truth.” What it means, in fact, however, is that the lawyer for each side gets to “interview” prospective jurors, to ask him questions (often developed with the help of trial consultants) to help determine the prospective juror’s likely impartiality (or, inversely, his prejudices and predilections). In point of fact, voir dire is more; it allows the skilled and well-prepared attorney a glimpse into the potential juror’s life views and helps the lawyer exclude those most likely to be adverse to his client’s position. Conversely, it allows the lawyer to include those prospective jurors sympathetic to his client’s cause. Such ability of the lawyer to “choose” is not unlimited however; certain limits to the number of jurors who may be excluded are imposed. Thus, the influence of the jury consultant looms even larger.
If you don’t believe that law, particularly, trial work, is personality driven and the intangibles of personality don’t really matter, ask yourself about the O.J. Simpson trial, the seemingly ubiquitous other celebrity trials, and the those now in the news. Were the facts and law really in the defendants’ favor or were the juries overwhelmed by the glitz and glamour or blinded by the spark of fame? Were minds influenced – however subtly – by a smile, one’s status or demeanor, or by the shapely turn of a leg?
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley. His practice areas include business and commercial transactions, real estate and development, homeowners’ associations, family law and divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at his email address, email@example.com.