TBA Law Blog

Posted by: Daniel Van Horn on Sep 7, 2011

Journal Issue Date: Sep 2011

Journal Name: September 2011 - Vol. 47, No. 9

We have the greatest legal system in the world. Our attorneys are the envy of the world in terms of skill and professionalism. Yet, survey after survey shows that the public image of attorneys and our justice system ranks somewhere near the bottom. Many proclaim that our system and those who work in are broken. Our system is far from broken and there is every reason to proudly proclaim that you are an attorney. So why is there a disconnect? Among other reasons, I believe the way we talk about our system and each other undermines faith in our system and in the public’s perception of attorneys.

Perhaps the easiest thing that we can do to improve the image of attorneys and bolster confidence in our system is to stop talking poorly about our system and each other. In the wake of the Casey Anthony trial, I was deeply disappointed to see so many “legal experts” proclaim that the system failed. Most of those making that statement were not in the court for even a tenth of the testimony. They prejudged Anthony to be guilty and failed to really talk about the role of a jury, which was to decide whether the state had proven guilt beyond a reasonable doubt. Anthony may be guilty but the question is did the state prove it beyond a reasonable doubt? Rather than praising the jury for doing exactly as they were instructed, these talking heads derided the jury as a bunch of idiots. That type of commentary is shameful and out to be roundly rejected by our profession. Sadly, I heard many of the same comments from attorneys all across Tennessee made to friends and family who are not attorneys.

If we say the system doesn’t work then why should those who know nothing about it think otherwise? It is our duty to explain to friends and neighbors that our system does work and to speak positively about it.

This issue of speaking poorly of our system comes up in nearly every civil case, and it usually comes up at mediation. Now let me preface these statements by saying that mediation is important and wildly successful at resolving the vast majority of cases. My issue is not with mediation but with the manner in which it is often conducted. I often hear the mediator or an attorney caution a client that the system is broken; they can’t count on juries to get the case resolved in a reasonable manner; and the last thing the party wants to do is to let 12 strangers decide their case. Most all cases mediate. Many of the participants in mediation are doing so for the first time. By the time they mediate, they often have spent a considerable amount of money pursuing or defending their case. For many, the mediation turns out to be their day in court. On that day, after having spent a considerable amount of money and time, their own attorney and worse yet a stranger with whom much credence is given often tells them that the system is broken.

I have no issue with explaining to clients that if they move forward beyond mediation, they lose control of the outcome. That loss of control argument can be made without running our system into the ground. How much better would we and our system be if we simply said: we believe in our system; we have the greatest system in the world; juries usually get it right; but if you move forward today you no longer control how and when this case gets decided. I absolutely think that there is great value in helping parties settle their disputes. I reject an approach that does so by destroying the image of our system in the process. We have to be mindful that we are ambassadors of our system in all that we do.

Lastly, much like Ronald Reagan’s 11th commandment, we should not speak ill of another attorney. When we tell a client that another attorney is a jerk or unethical or can’t be trusted, they often form an image of the profession and they assume that more of the profession is like that other attorney than their own. The other attorney may be difficult or a jerk, but we don’t have to describe them in that manner. We can simply say that we disagree with the position taken. We are in this together and what you say about others will shape how the public ultimately views you.

So, as your parents undoubtedly taught you, if you don’t have something nice to say about our system or about another attorney, then don’t say anything at all.

Danny Van Horn TBA President DANNY VAN HORN is a partner with Butler, Snow, O'Mara, Stevens and Cannada PLLC in Memphis.