THE STATE : PERSONAL PERSPECTIVE : Defending the Justice System--From the Lawyers Who Disparage It

The O.J. Simpson double-murder trial has spawned a new--and unfortunate--industry for lawyers and law professors. They now do play-by-play trial commentary on television. Whether or not they have ever tried a case, these talking heads have a comment or criticism about anything and everything dealing with the Simpson case.

These “legal scholars” have become experts in analyzing, second-guessing and predicting every conceivable aspect of the trial. In some ways, they are like rabid fans who consistently disparage athletes for their performances--though the fans have often never played the game, let alone in the major leagues.

By acting as theorist, critic and soothsayer, the pundits have done a disservice to the legal community, to potential jurors, defendants and witnesses in future trials, and to our system of justice by participating in the circus-like atmosphere that permeates high-profile trials.

Where did these “experts” come from and why are we listening to them? What is the purpose of dissecting every question, response, strategy or article of clothing in a trial?

Sadly, the answer partly lies in the need of some to satisfy their egos by being seen on TV, heard on the radio or having their name in print. It’s about that 15 minutes of fame. But it’s a symbiotic relationship--because the media are similarly using these commentators to build revenue and ratings.

By questioning each minute event in a long trial, the viewing public begins to have false expectations about what should be done in the courtroom. There are times during a trial when things are not what they appear to be--and the commentator has no idea of the tactics behind a line of questioning. Nonetheless, they push forward, speculating about possibilities or alternatives that could be present,

I have heard a number of these experts trumpet that the duty of the criminal-defense lawyer is not to seek the truth, but to confuse jurors. The lawyer’s goal, according to these people, is to circumvent the facts, fool the jurors and acquit the client. Winning is all that matters.

These comments reinforce the negative image the public already has of lawyers in general. It creates further distrust of lawyers--their motivations, questions and arguments. The message is that lawyers’ words are designed to shade the truth to cause an incorrect verdict.

Such assertions are appalling. Our justice system is not a game played by tricking and confusing jurors. An attorney’s mandate is to represent the client aggressively and creatively--within the boundaries of the law.

Trial lawyers have a responsibility both to their client and to society as members of the legal profession. The balance that keeps the scales of justice equal depends on those who work within the system. Our rules demand that lawyers can not falsify evidence or lie to the judge or jurors--and if a client asks this of a lawyer, that lawyer must refuse. Without the checks and balances that ensure the honest discharge of a lawyer’s professional responsibility, the system would spin even more out of control than it appears.

If the public is led to believe that attorneys are expected to suborn perjury, create frivolous theories or argue the absurd to achieve a win at all costs, the legal structure will crumble. The credibility of the trial attorney is critical to the presentation of a party’s case.

But because of the commentary spewing from many of these “experts” about trial lawyers’ lack of ethics, the system, in general, and criminal-defense attorneys, in particular, have been tainted with a broad brush of irresponsibility that will cause future jurors to doubt courtroom actions and motivations. This can only further undermine an already fragile system. Ultimately, persons charged with criminal conduct in future cases will suffer because this could affect their constitutional rights to a fair trial.

The second-guessing of what the lawyers meant with each question; the critiquing of what should have been asked, and the constant speculation of how jurors may react to what takes place in a courtroom--all have done a great disservice to the public’s perception of reality.

Lawyers, trying to act as “experts,” should not be part of the entertainment business--anymore than media should be part of the legal system.

Yet, there is clearly a need to continue the education of the public in the working of the justice system. Legitimate commentary that explains the purpose or reasons for a particular process during a trial--defining the theory behind a motion or objection, for example--does serve an enlightening purpose.

But the talking heads may have jeopardized the objectivity of many who might be called to jury duty in future. As citizens, we all deserve to know our justice system can work-- notwithstanding the recent glut of criticisms.

I’ve been a trial lawyer for 30 years. I believe--with the exception of some lawyers or judges who do not follow the law or ethics of their profession--the system can and does result in justice for all. It just needs our help and understanding from time to time.