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.