By Dr. Ken Broda-Bahm:
It’s an occupational hazard: If you’re a lawyer, then you’re going to hear lawyer jokes. One that I’m fond of is, “There is really only one lawyer joke…all of the rest are true.” That one was used successfully as an icebreaker in voir dire during a recent attorney malpractice defense. Or, I should say, it was used in a mock voir dire, because the case settled on the eve of trial. That result is in keeping to what we see as a general reluctance to see the inside of a courtroom when it comes to defending lawyers. A recent Law 360 article entitled, “Jurors’ Anti-Attorney Bias Is More Paranoia Than Fact,” addresses this strong reluctance to proceed to trial with clients who are attorneys. Ron Minkoff, head of the professional liability practice at Frankfurt Kurnit Klein & Selz PC, is quoted in the article: “The thinking is usually that if you lose at summary judgment, you better think hard about settling because you don’t want to be in front of a jury.” Even when a settlement is not warranted on the merits, the defense will often cave in on it, thinking that a jury is unlikely to be fair to a lawyer, and will instead see the defendant as presumptively dishonest or will hold the attorney to an impossibly high standard of error-free work.
These concerns, however, seem to be overblown. The article quotes another defense attorney, Daniel Konicek of Konicek & Dillon PC in Chicago, “The clients, the insurance companies, everyone on the defense side is gun-shy about juries, but it’s never been my experience that jurors are out to screw a lawyer just because they’re a lawyer,” he said. “A lot of times, my first job is to convince my own clients that people can be fair.” And the idea that juries can be fair resonates with our experience as well. We don’t have as much trial experience defending attorneys in trial (largely for the reasons noted above by Konicek and Minkoff), but we do have relatively frequent experience in mock trials on legal professional liability cases. As I have written here before, it is important to account for the attitudes and biases that are specific to lawyers, but chances are, those attitudes are not as extreme as you might expect, and they shouldn’t serve as a presumptive bar to taking a case to trial. In this post, I’ll expand on that thought, also sharing some recent mock trial data to supplement the anecdotes shared in the Law 360 article.
You Still Have a Chance in Front of a Jury
Based on the attorney jokes, one might expect that a majority of the public holds an unfavorable view of lawyers. In the context of civil lawsuits, however, we have not found that to be the case. Each time we have run a mock trial on it, we have seen a solid majority ending up on the “favorable” side of the ledger. At a recent mock trial, for example, we asked mock jurors as they arrived for the exercise and found that fully 72 percent held a somewhat or very favorable attitude, and none held a very unfavorable view:
Which Most Closely Describes Your Opinion of Lawyers.
Of course, it is still important to avoid falling into those preconceived, negative stereotypes of lawyers. Speaking with Law 360, Daniel Konicek notes that in his experience, the actual jurors tend to view lawyers like they view other working professionals, particularly if they can avoid the perception of arrogance. “And as long as the client is willing to be humble and not act like they’re smarter than everyone else and smirk, that’s something I can work with,” he said.
And Clients Carry Responsibility as Well
One interesting finding lies in the contrast between our mock jurors’ views of what people should do in general, and what they personally would do. For example, in response to the question of how much trust clients, in general, should have in their lawyers, the reasons lean strongly toward high trust.
How Much Trust Should Clients in General Have in Their Lawyers?
However, when they are asked about how much they as individuals have in lawyers, the results are still positive, but a little bit less so
How Much Trust Do You Have in Lawyers?
To me, this indicates that individuals feel that they are a little more skeptical than average. This is consistent with what is called the “Lake Woebegone Effect” (You know, “where all of the children are above average”), and the tendency for the individual juror to suspect that they would have been more cautious might signal a greater willingness to put more responsibility on the client.
A Judge Is not Necessarily Better
Ultimately, fear over juror bias often causes parties to opt for the perceived safety of a judge. The idea that the legally-trained fact finder, a fellow lawyer in this case, is going to be less biased, however, isn’t always the case. Because the judge acts alone, the risk is that their bias is unchecked. On a jury, however, there is typically a diversity of opinions, and the mix can actually lead to greater predictability. “I can say that after doing this for 35 years, juries are as predictable, or in some cases, more predictable, than a single judge,” Ron Minkoff said. “But I’ve been amazed at how much lawyers can look down at [jurors] and think they just won’t get it, so you have to talk them out of assuming that it’s automatically going to go badly for them.”
So settle when it makes sense to settle. But don’t settle because you don’t think a jury can possibly be fair to a lawyer. Both the experience and the data say that they can be.
Other Posts on Bias in Professional Liability Cases:
- Account for Anti-Lawyer Bias in Legal Malpractice Trials
- In Malpractice Litigation, Account for Jurors’ Motive to Trust the Doctor
- Rely on Standard Practice
Image credit: 123rf.com, used under license