|
Dean's Address
A.
We need to educate the public why lawyers must be partisan for the
system to function.
Our
system is based on adversarial principles. It is why it works
better than any other system created by man. As John Milton said:
'Whosoever
knew truth put to the worse in a free and open encounter."
Most of the public still
does not understand this principle We know our system doesn't work
if there isn't this balanced advocacy. We need to explain that in
terms the public can understand. When we see a negative article in
the press, call the editors or write a letter to the editors to
explain why we appear so one‑sided. You of all have the
stature to be recognized and published.
B.
We need to promote to the public the value of Jury
service so more people are involved and understand its benefits.
For years we helped our
friends and clients avoid jury duty because it meant sitting two
weeks in a courthouse ‑ many times without ever sitting on a
jury. Shame on us! In many jurisdictions the entire jury service
system has dramatically changed from those days where those with
connections could avoid jury duty and then demean or criticize
other jurors' decisions.
There are many
jurisdictions now, Illinois included, who have a new system called
the one day, one jury rule. Under this rule a juror comes for jury
duty on a designated day. If on that day they are chosen to serve
on a jury, they serve. If they are not chosen that day, their
service is ended until the next time. Under this one day, one jury
system no one sits in a jury pool room more than a day. This is
absolutely a positive step in correcting the public's view of the
value of "trial by jury."
This system works in
Illinois because no one is exempt from service‑judges,
attorneys‑no one. We no longer can get anyone excused who is
able. The best we can do is a new short date for jury service.
Ultimately everyone is called and everyone serves. This system
should be implemented everywhere feasible.
Last year, two misguided
lawyers selected me as a juror in a four day trial. Fascinating
experience. I will tell you one thing, there are a number of
things as a trial lawyer I won't do in a court room again having
watched the effect on jurors when I served as a juror.
Since I have been asked in
the past, I will tell you briefly about my experience. At the end
of trial, my fellow jurors selected me as foreman. I declined. I
asked if I could observe the process of foreman selection, and
would contribute my thoughts and deliberate after everyone else
did. They agreed, and selected a foreman in a few minutes. Then
each individually, one by one, gave their views. At the end, I
gave my thoughts. Of course, they agreed with me and did the right
thing.
The overall benefit of the
one day, one jury system is that more people from all walks of
life in the community are serving on juries and learn to respect
the process rather than criticize it from afar.
C. We need to continue to improve the experience.
An important adjunct to
jury service is the ability for jurors to understand their role in
a particular case they are chosen to judge. Think about what we
ask jurors to do in most jurisdictions:
-
Jurors are selected with no background in the area of the
case they are to hear and if they have any background they are
probably excluded.
-
We present evidence to them for days or weeks without
telling them how to use or evaluate the evidence until the end of
the trial.
-
Then we give them jury instructions with many legal terms
many of us even find unclear or incomplete.
-
On that background we ask juries to decide the case.
Some states have already
changed this approach. More need to.
For instance, in Illinois,
following some states who have already addressed the challenge, we
now allow judges to read the cautionary and guidance instructions
before evidence is presented as well as after. Doesn't it make
more sense to have jurors know before they hear the evidence the
following:
Illinois Civil
Pattern Jury Instructions
1.01 Preliminary
Cautionary Instructions
[1] The law regarding this
case is contained in the instructions I will give to you. You must
consider the Court's instructions as a whole, not picking out some
instructions and disregarding others.
[2] It is your duty to
resolve this case by determining the facts and following the law
given in the instructions. Your verdict must not be based upon
speculation, prejudice, or sympathy. [Each party, whether a i.e.,
corporation, partnership, etc.) or an individual, should
receive your same fair consideration.]
[3] You will decide what
facts have been proven. Facts may be proven by evidence or
reasonable inferences drawn from the evidence. Evidence consists
of the testimony of witnesses and of exhibits admitted by the
court. You should consider all the evidence without regard to
which party produced it. You may use common sense gained from your
experiences in life in evaluating what you see and hear during
trial.
[4] You are the only judges
of the credibility of the witnesses. You will decide the weight to
be given to the testimony of each of them. In evaluating the
credibility of a witness you may consider that witness' ability
and opportunity to observe, memory, manner, interest, bias,
qualifications, experience, and any previous inconsistent
statement or act concerning an issue import to the case.
[5]
An opening statement is what an attorney expects the evidence will
be. A closing argument is given at the conclusion of the case and
is a summary of what an attorney contends the evidence has shown.
If any statement or argument of an attorney is not supported by
the law or the evidence you should disregard that statement.
This change in Illinois was a
bipartisan proposal recommended by the Supreme Court Committee
on Civil Jury
Instructions
consisting of both plaintiff and defendant trial lawyers such as
Tom Demetrio and myself. It was favored by most judges as a
positive development.
D.
We need to continue to promote, no insist, on civility in and out
of the Court room.
There
are also some positive developments in the area of civility in our
profession since we heard Bob Josefsberg's Dean's address two
years ago. He will tell you these advances are due to his speech
alone. The truth is many in our profession are at least focusing
on civility at a peer level. Every legal association meeting I
have attended in the past four years had a lecture on the need for
a change in the way we approach litigation and treat each other in
the process. Numerous articles have been and are currently being
written by our Associations, lawyers, judges and others on the
issue. Codes of civility exist in most jurisdictions. Hopefully
this concentration will filter down to our younger brethren, many
of whom seem to think lack of civility is a way to success. It
isn't.
Continue to Page 4
|
