Thursday, January 21, 2010

Musings on Justice and Truth

It is accepted more or less universally that plaintiffs in tort litigation seek not only money, but also justice. I also believe that to be true — as far as it goes. Based on my experience, however, I suspect that many folks are operating on only a vaguely formed understanding of what the word "justice" really means. I daresay that many, if not most, believe deep down that justice is what happens when the jury renders a verdict in their favor! If, instead, the jury finds for the other guy, it is likely the result of some injustice. The jury was biased or stupid, e.g., or the other side had more bucks to hire a fancy lawyer, etc. More often than not, however, the jurors found for the other guy because they liked his or her notion of justice better, based on what they saw and heard at trial. Few realize that justice is more about the process than the result.

Herewith, my definition of the word: "Justice" is that which results when the procedure is correctly followed. So long as the rules of evidence are followed, the judge is not biased (or asleep), and the jury follows instructions and is not suborned, the result, by definition, must be just — or, at least, cannot be determined by outsiders to have been unjust. This means that if the jury hears and sees only what goes onto Justitia’s scales (see picture) and follows a reasonable understanding of the judge’s instructions, the result is "justice," whether or not some other jury faced with the same evidence and instruction might have come to a different conclusion.

I would venture to say that most citizens — including many trial lawyers who ought to have known better — were outraged in 1995 when O. J. Simpson was acquitted of murdering his ex-wife and Ronald Goldman. After all, the TV news shows were predicting a conviction! Trials, however, whether criminal or civil, are decided by juries, not by John Q. Public (a/k/a, in some circles, the "Mob"). Juries are, of course, human and subject to human frailties. Society can’t guarantee that juries will always find the truth. On the other hand, who is to say that a given jury has not found the truth? John Q. Public? The losing attorney? The anchor on the six o’clock news? Bishop Desmond Tutu? In our society, we have juries because truth is almost never knowable with any certainty. Like it or not, we have assigned the role of "truth and justice finder" to juries. And that means that whatever they decide when the procedure has been followed is, for all practical purposes, truth and justice.

So, what am I getting at that would be of use to tort litigants participating in mediation? It is this: the less one understands about the true meaning of "justice," the longer it will take to reach a reasonable resolution acceptable to all participants. One of a trial lawyer’s primary jobs is to educate his or her client on the limitations of the system, and thus, the true meaning of "justice." Clients may think they have a can’t-miss-slam-dunk case, but they need to comprehend that what counts is how 12 strangers, who will see and hear only what the judge tells them they can, might look at the case. Clients need to understand that they cannot profitably confuse what they think ought to be with what is.


Joe Markowitz said...

I'm not sure I would define whatever happens when procedure is correctly followed as "justice." What about cases in which a critical witness is dead or outside the jurisdiction, or where some other evidence is unavailable? What about criminal cases where the prosecution cannot get a conviction because the defendant asserts his fifth amendment right not to testify, or has some evidence excluded because of an illegal search, or cannot meet its burden of proof beyond a reasonable doubt? What about cases where the jury is influenced by sympathy or prejudice? What about cases where witnesses lie or destroy evidence prior to trial, but we can't prove it? It seems to me that there are lots of times when all the rules are followed but we still get an unjust result. I prefer to tell participants in mediation not to expect justice if they take their case to trial. They might get justice, but then again, they might not.

John Lassey said...

I appreciate your comments, Joe, but I still think that the search for justice is not focused on results, but on the process. How can it be anything else?

Most of your examples just point out the limitations of the justice system in arriving at the right --- as opposed to the just --- result from one side's viewpoint. But what is the alternative? Would justice be done if the judge ignores the Fifth Amendment and forces the defendant to tell the truth by incriminating him or herself? The bad guy might get put away, but I doubt that most of us would believe that due process was followed. How about if the judge tells the jury in a criminal case to do what they believe in their hearts is right, as opposed to determining if the prosecution has proved its case beyond a reasonable doubt? Do we seek justice by selectively writing the Fourth Amendment right against unreasonable search and seizure out of the Constitution?

Of course the process is constantly evolving. Because of this, we are continually revising our definition of "justice." That too is part of the process. What may have been "justice" in medieval times would be regarded as barbarism today. Take, for example, the water test to determine whether the local oddball is or is not a witch. If she floats, the water has rejected her; therefore she is a witch. If she drowns, she is not a witch.

I think we are both offering the same advice in different ways: "If you go to trial, you may not get what you want." We might get more settlements by warning litigants not to expect justice from a trial (as opposed to telling them that justice doesn't guarantee the result they want). I question, however, whether, in the end, that approach fosters a greater willingness to accept the settlement and move on.