By William Sykes
Claggett & Sykes Law Firm, Las Vegas, NV
Important update in Trending this week: The Keenan Law Firm announces a new fellowship program; click here for more information.
Note from Papa Don: Will Sykes is a partner with Sean Claggett; together they form the powerhouse law firm in Las Vegas. While I was monitoring some of the posts out on the listservs, I read with interest Will's great post. I ask him to add to it (put more hair on the dog!) so that we could share an article on the subject, and here it is.
Imagine you are sitting as an arbitrator or a judge in a case. There is no jury. You are the decision-maker and the fact-finder, and you must decide who wins and who loses.
Now imagine both sides are doing their best to advocate their own cause – but you suspect that both sides are hiding things. Your gut tells you both sides are hiding lies, betrayals and hypocrisy, and each side is expending herculean efforts to point out the other side’s lies, betrayals and hypocrisy. Who do you want to rule in favor of?
Under these circumstances, the honest answer for most of us is: Nobody. At the end of the case, you’ll make a ruling that will cause you the lease amount of disgust, which will merely comport with the law. But you’ll be disgusted nonetheless, and your ruling will reflect it. And you’re a trial lawyer…you know how the legal system works and you know how lawyers are traditionally supposed to advocate for their clients. Yet you’re disgusted. Imagine how Bubba would react to these same circumstances.
In many, if not all, of our cases, a reoccurring problem rears its ugly head: Our clients aren’t perfect. They are flawed – they are human. Maybe they were speeding at the time of the crash, when that other driver ran the red light. They weren’t wearing a helmet while riding their bicycle or motorcycle. They didn’t go back to the doctor’s office or to the ER soon enough after those nasty symptoms persisted or got worse. They didn’t always follow their doctor’s advice. There are gaps in treatment. They honestly forgot about a pre-existing injury or pre-existing treatment. Convicted felon, who had it coming to him; drug-addict who’ll use the money to buy drugs, the list is endless.
To some extent, most of these “flaws” are actually black-and-white rule violations in disguise. The client must own up to his or her own flaws, especially when these flaws contribute to their own injuries or symptoms. Equally important, if their own rule violations contributed to their slow recovery or non-recovery from these injuries, s/he must own up to these rule violations. Failure to do so will leave a powerful, negative emotional imprint on the jury: Hypocrisy.
Far too often, we, as the tireless advocates of our clients, tend to gloss over our client’s flaws and rule violations. We hope that Bubba will see what we see: Our client, Jane or John, is a really nice person, and we hope Bubba will give this nice person the benefit of the doubt.
This tendency violates Major Truth No. 1 of the Reptile: Bubba don’t give a shit about your client.
Dr. Martin Luther King, Jr., is widely regarded as one of the most successful and effective civil rights activists of all time. Dr. King knew the power of the conscience of the community, but he also knew that self-purification was one of the keys to accessing the conscience of the community. In his infamous “Letter from a Birmingham Jail,” Dr. King wrote:
“We had no alternative except to prepare for direct action, whereby we would present our very bodies as a means of laying our case before the conscience of the local and the national community. Mindful of the difficulties involved, we decided to undertake a process of self-purification. We began a series of workshops on nonviolence, and we repeatedly asked ourselves: ‘Are you able to accept blows without retaliating?’ ‘Are you able to endure the ordeal of jail?’” (Emphasis added).
Dr. King laid out the blueprint for the secret to his success in the “Letter from a Birmingham Jail” when he said:
“In any nonviolent campaign there are four basic steps: Collection of the facts to determine whether injustices exist; negotiation; self-purification; and direct action.”
Self-purification before direct action. The client must come into the courtroom with clean hands.
“Yes, I could have lessened some of these injuries if I [insert rule client should have followed]. And I’ll have to live with that for the rest of my life. But the defendant must be held accountable for the harm s/he caused. The [insert injuries defendant – and defendant alone – could have prevented].”
Once the client takes responsibility for his or her own safety violation(s), it empowers the jury to protect the community from harm by holding the wrongdoer accountable.
Dr. King and his followers weren’t the first ones to acknowledge the crucial element of self-purification. Mahatma Gandhi, Dr. King’s role model for civil disobedience, nicknamed the “Father of India,” who is largely credited with spearheading the movement to make India a free nation, said this of self-purification:
“Men of stainless character and self-purification will easily inspire confidence and automatically purify the atmosphere around them.”
But the idea of self-purification has even deeper roots:
And the scribes and Pharisees brought unto him a woman taken in adultery; and when they had set her in the midst,
They say unto him, Master, this woman was taken in adultery, in the very act.
Now Moses in the law commanded us, that such should be stoned: but what sayest thou?
This they said, tempting him, that they might have to accuse him. But Jesus stooped down, and with his finger wrote on the ground, as though he heard them not.
So when they continued asking him, he lifted up himself, and said unto them, He that is without sin among you, let him first cast a stone at her.
— John 8:3-7 (emphasis added)
Let he who is without sin throw the first stone. Do not go into court and throw stones at the defendant unless and until your plaintiff has owned up to his or her own rule violations and case-related sins.
Make no mistake. The self-purification process can be brutal. Having the client accept full or even partial responsibility for his or her own grief and destruction is extremely painful. Gandhi himself said “[t]he path of self-purification is hard and steep.” But in some cases, it is absolutely necessary to empower the jury to protect the community by seeing the true threat to the community, which is the defendant’s preventable conduct.
Here are a few, very brief examples of how to deal with certain reoccurring situations:
Comparative Fault: Client contributed to cause of injuries through his/her own rule violation(s). Own up to the rule violation(s)/percentage of fault throughout discovery, and be the first to address it at trial (in Opening at the latest), admitting those parts of injuries caused by the client. Then focus attention on the defendant’s conduct, responsibility and accountability. For more, read Keenan Edge 2, “Your Client’s Contributory or Comparative Negligence: Embrace It, It’s a Gift” (p. 37).
Drug-Addict: Own up to the addiction throughout discovery, and appoint a conservator and institutional co-conservator. For more, read Keenan Edge 1, “Power of the Institutional Plaintiff” (p. 160) and “Using the Institutional Plaintiff Universally” (p. 163). Be the first to address it at trial (in jury selection or Opening at the latest); for more, read Moral Core Advocacy by Rick Friedman.
Convicted Felon: Own up to the conviction throughout discovery and be the first to address it (again, in Opening at the very latest). Talk about how the client did his or her time, is rehabilitated (or is in the process of rehabilitation). Then focus attention to the defendant’s conduct and the first to address it in Opening (at the very latest), client did the time, rehabilitated (or in the process of rehabilitating); focus on the defendant’s conduct, responsibility and accountability. For more, read Moral Core Advocacy by Rick Friedman.
Non-Compliant/Gaps in Treatment: “Have a reason, or take the beatin’.” This one’s simple. The client better have a good reason for being non-compliant or for any gaps in treatment. Bubba (focus groups) will tell you if your client’s reason is a good reason or not. If your client doesn’t have a good reason, s/he needs to be prepared to take the beatin’ in the courtroom (or at mediation). S/he also better be prepared to say s/he is at fault for the gap or non-compliance, and be willing to forgo any compensation for pain and suffering or even complications caused by the non-compliance.