We read a lot of other legal blawgs and we like what Matt Kaiser (of Kaiser Law Firm Blog) has to say about the crushing burden on a defendant with depression (who also happens to be a single mom). And what Jeff Gamso (of Gamso for the Defense) has to say about a reporter who crusaded to free the wrongfully convicted. And what the anonymous ‘Gideon’ (from ‘a public defender’ blog) chooses to believe about our justice system.

These three are defense attorneys who continue to feel, continue to care and continue to struggle with the demands of their work. All three write about the burdens of a system that focuses on the ‘bad person’ rather than on very real ‘bad systemic forces’ that operate in our world.

We see this in pre-trial research with mock jurors when something bad happens. They do not want to believe they would have fallen into the same category as the unlucky litigant.

“I would have gotten a second opinion.”

“He should have seen another doctor.”

“She should have tried a different medication.”

We’re good at seeing what others should have done. Hindsight bias comes up a lot with jurors in litigation where bad things happened  We now see the “if only they had done this” ways to avoid a bad outcome. There are times though, when it wouldn’t have been possible for a litigant to avoid a bad outcome without help from a fellow human being. This is not about justice tempered by mercy. It’s about justice informed by empathy for what it feels like to walk in another’s shoes.  In other words, it is about looking for how things can be made better for everyone, instead of singling out the victim.

We need to find ways to help jurors inform their justice with empathy and fact. Here is some research that explains how to do that.

Why didn’t the aging plaintiff actively pursue a second opinion?

Because the power of doctors makes elderly patient’s passive and doctors/medical organizations need to take steps to avoid miscommunication in their interactions with aging patients and their relatives.

Why didn’t the depressed litigant follow through on recommendations from the court that s/he seek counseling?

Because depression results in feelings of hopelessness, worthlessness and loss of energy and motivation

Why didn’t the defendant take his meds so he wouldn’t become violent and hurt his mother?

Because one of the symptoms of serious mental illness is discontinuing your medications and you may experience an accompanying increase in irresistible impulses.

In our every day lives, tempering judgment with information could be as simple as assuming the best intent in others or giving others the benefit of a doubt. In the courtroom, tempering judgment with information and empathy can make a huge difference in an individual life.

It may mean jurors doing the right thing because they understand how it could have happened.  And it may mean jurors accepting imperfect responses to crises, because the average juror doesn’t know as much about stress, mental illness, or vulnerability as the expert witness does.  We need to teach our expert witnesses how to teach the jury effectively so the issues become more clear to them.

There, but for the grace of God, go I.  And you.

Related posts:

1. Why an uncertain attorney may be better than a cocky one