Lawyers tend to forget that non-lawyers know very little about some legal issues or principles that we lawyers take for granted. Following are some of the common misunderstandings that non-lawyers (and even many practicing lawyers and judges) have about the law.
Judges Decide Issues of Law and Juries Decide Issues of Fact
This is a common one and like many legal statements it is not 100 percent correct. In some cases, the Judge can decide issues of fact, e.g. a bench trial. Because of that, sometimes you will hear the jury or judge in a bench trial referred to as the “factfinder”. This distinction goes to the heart of all trial law.
Factual disputes are the reasons we have trials. Witness A says the light was red and Witness B says it was green. Who is right? Well, the jury will decide. This determination seems to bother younger jurors, who have grown accustomed to the certainty associated with computing. But life is not black and white, it is gray (or grey). If everything could be computed, then we would not need juries or factfinders, we could let a computer decide. So, how does the jury decide who is right when there are “two sides”? Easy, they use the built-in bulls#### detector most of us are born with. Humans are pretty good at spotting lies.
For instance, if a person refuses to answer a straightforward question, they respond to a question with a question, they fidget, they look away, they stare straight at you, or they have lied in other circumstances all may allow a jury to infer that the person is lying. Is there any certainty? No. But, twelve jurors can usually figure out who is telling the truth.
So, what does the Judge do? The Judge decides legal issues that arise during litigation or trial. If a witness starts telling the jury about a rumor the witness heard, a lawyer may “object” on the grounds of hearsay. Whether something is hearsay and, if so, whether there is an applicable exception is something that the Judge will decide. Judges also make legal determinations prior to trial about whether there are actually any factual disputes to be tried, the law that applies, what documents or testimony come in to evidence, etc.
When the Judge decides an issue of law, the parties can later appeal the Judge’s ruling if they believe the Judge misapplied the law or made a bad decision. That is why lawyers spend so much time objecting and approaching the judge for a sidebar conference that the jurors cannot hear. The lawyers are making a “record” to appeal.
Testimony is Evidence
This misunderstanding comes up a lot. In fact, I know lawyers who have sat on juries and had to repeatedly tell the other jurors that testimony is evidence. For instance, if the plaintiff in a case claims that she was assaulted by the defendant, but there were no witnesses, no camera footage, and nothing else to support the plaintiff’s claim, does that mean that the plaintiff has no case? No. The plaintiff will testify about the assault and the jury will decide whether the plaintiff is telling the truth.
Corroborating evidence is just that – corroborating. It is helpful, but not required. If it was, then a sexual assault would go unpunished if there were no bystanders to observe the assault. In fact, in most claims, you do not even need direct evidence for your claim. Circumstantial evidence is acceptable, and the jury can also draw inferences based on the evidence. Again, this is confusing to some left-brain types because they are looking for mathematical certainty, but it does not exist outside math and computing. That is also why we have the burden of proof…
More Likely Than Not is Good Enough
In civil cases, the plaintiff does not need to prove his or her claim with absolute certainty because that would be impossible. In the world of human interactions, there is always an argument to be made on the other side. The plaintiff signed a written contract, you say? Well, maybe it was forged? Maybe it the plaintiff was fraudulently induced into signing? Maybe the plaintiff signed under duress? The point is that it is impossible to know anything with absolute certainty. Because of that, the plaintiff in a lawsuit only needs to prove his or her case by a preponderance of the evidence, which is lawyer speak for more likely than not.
In percentages, a plaintiff needs only to prove her claim with 50.0000000001 percent certainty (actually even less, but this isn’t a math class). In criminal cases, the burden for the prosecutor is “beyond a reasonable doubt” which is lawyer speak for some percentage much greater than 50.0000000001. Is it 70% 90%? Nobody really knows. For our purposes, criminal cases require a much higher burden, which makes sense because we want jurors to be pretty certain (cannot be 100 percent certain) that the defendant is guilty. But for lawsuits, we just need to know whether it is more likely than not.
Insurance, Insurance, Insurance
In most lawsuits -especially those involving car crashes, falls, or medical malpractice – the defendant will have insurance coverage that will pay the judgment. The insurance is also paying the defendant’s lawyers, which is why they may seem to not know each other very well. This is why you have insurance. If you get sued after being in a car crash, you send the lawsuit to your insurance company, they hire a lawyer and defend the case, if there is something to defend. I have seen trial focus groups speculate that the case has gone to trial because the plaintiff was already paid by the insurance company but wants more. Not true. The case is at trial because no money has changed hands between the plaintiff and the defendant, i.e. the case did not settle.
Assault cases, breach of contract, fraud usually will not involve insurance, but if it’s a car crash or medical malpractice, you can be assured that there is an insurance company that will pay the judgment.
Keep in mind, however, that lawyers are not permitted to talk to the jury about insurance (insurance company lobbyists made sure of that) and that is because…
Lawyers Can’t Tell Jurors the Entire Story
Jurors will speculate and try to fill in the gaps of a trial. They will wonder why the lawyers are not telling the whole story, or why there are gaps in the story. Why is that? The rules of evidence. If lawyers could stand up and pitch the jury on the case and not have to worry about evidence, then jurors would get the whole story. The rules of evidence prevent that from happening because the Judge acts as a gatekeeper to ensure that only relevant and reliable evidence (documents, testimony) are presented to the jury. The reason for this is because we want jurors making determinations based on the facts of the dispute before them. We do not want jurors deciding cases based on their own opinions, the character of the parties, or other collateral matters. The goal is to get jurors to simply look at the facts, measure credibility, weigh evidence and decide.
Money for Non-Economic Damages
Civil cases are about money. Is that because people or companies are greedy? No. Money is usually the only way for our society to right a wrong. The jury cannot bring a dead child back to life, it cannot give you full range of motion in your arm, it cannot make your brain work the way it did before an injury. The jury can simply decide that the plaintiff lost something (health, child, time, possessions, piece of mind, etc.) put a value on that and award that money to the plaintiff. I have heard potential jurors conclude that “well, this lawsuit won’t bring your child back…” therefore the person should just let it go. Imagine a society where you lose that which is most precious to you and you must simply grin and bear it. Imagine how terrible it would be to live in such a society. So, it is the job of the jury to make the plaintiff whole by awarding money. If something was lost, an accounting for that loss must be made. It is the only way (albeit imperfect way) for society to balance the ledger and instill fairness among its citizens.
Victim Blaming and Tort Reform
Everyone is for “tort reform” until they want to sue. On an almost weekly basis, I will talk to a potential client that is very “conservative” in their views and expresses that they are “not the type of person to sue” – if I had a nickel for every time I heard that. Of course, we are all self-absorbed and any injustice done to us is an outrage, but for others it their own fault. And any lawsuit that does not involve us is frivolous and is an abuse of the “system.” The “system” that is abused is actually nothing more than insurance companies that don’t like lawsuits because their business model is to take in premiums and not pay claims. That’s why Warren Buffet invested in insurance – what a great industry, just take in money and deny claims. Oh, and if you make a claim, they will raise your premiums.
It is human nature to try to explain away another’s terrible misfortune by blaming the person. We do this because it gives us psychological comfort. We do not want to believe that a well-credentialed, well-meaning, and good doctor can screw up. If we believe that, then we believe it can happen to us and that’s a scary thought (in reality, medical error is one of the leading causes of death in our country). We don’t want to believe that the insurance company would deny our claim because that is their business model. We don’t want to believe that the nice man selling us a Honda is taking us for more than a test drive. We do not want to believe that bad things happen to good people because if they do, then they can happen to us. But each of will at some point in our lives face a tragedy or injustice. And, at that time, we will not want the doors of the courthouse closed because of insurance or industry lobbyists. We will want our day in court and we will want a jury of our peers, not a retired judge sitting as an arbitrator, to decide whether we were wronged.
For instance, in New Jersey, most hospitals are only responsible to pay $250,000, no matter what they do to you or a loved one. They kill your dad – $250,000. They give your kid the wrong medication and they are left brain dead – $250,000. That surprises many citizens of the Garden State, but there it is. New Jersey is also the State that decides to protect car dealerships from full exposure to the consumer fraud laws of the State because the dealerships bribe (sorry lobby) lawmakers to immunize them from fraud. That’s right folks, car dealerships – a pointless middleman industry that is the vestige of a bygone era that makes money off systematically defrauding consumers – are protected from the full force of the consumer fraud law. Makes sense, right? Well, pay attention, call your local lawmakers, and vote.
Your Constitutional Right to a Jury Trial
What happened when the King took your lands without reimbursement? What happened when your better-armed neighbor stole from you? In the past – nothing happened. But, some colonists in the New World decided that they wanted a better system. A system where they could seek redress and have their case heard by their peers. It seemed only fair. How else can the individual, the little guy/girl speak truth to power or exercise the rights that he or she was given.
Trial by jury is so fundamental it was one of the bases for seeking independence from England. It is codified in the Seventh Amendment to the Constitution and is found in most state constitutions. Despite that unambiguous, clear language, that right is being stripped away. Now, if you apply for a job, they have you waive your right to sue them. And for some reason, the strict constructionists on the bench believe that the “public policy” of alternative dispute resolution somehow trumps the express language in the Constitution. Why? Because big business likes it. And, if big business likes it, then it must be good.
A Judge in once told me during an oral argument that if my client did not want to sign an arbitration agreement, she could walk down the street and go to a car dealership that did not make you sign an arbitration agreement. Really? Actually, as I told the Judge, that second dealership will also make you sign an arbitration agreement. In fact, the learned Judge would probably be surprised to learn that he signed an arbitration agreement when he bought his car, when he checked his ailing parent into a nursing home, and when he signed up for his gym membership.
Losing the right to sue your employer, your healthcare provider, car dealership, etc. will ultimately result in an infringement of all your rights. Worried about your First, Second, Fourth, or Fourteenth Amendment rights? Well, if you lose the right to sue, you lose your ability to enforce all other rights.
Judges Do Make Law
A common misconception is that judges do not make the law. Actually, they do. We live in a “common law” system (except for Louisianians), where a decision by an appellate court becomes “precedent” until/unless a higher court overturns that decision. So, if an issue comes before a judge and it that issue has never been decided, the judge’s decision will constitute new law.
Where do statutes (codified laws by the legislature) fit in? Well, if there is a statute, then the court will look to the statute to decide the law. But statutes are not always clear and do not address every particular issue that may arise surrounding those statutes. Judges and appellate courts will interpret the statute (decide what it says) and make a ruling. If the interpretation is wrong, then a higher court can overturn that interpretation. But, once the interpretation is made, that essentially becomes the law of the land. If the legislature thinks the courts are misinterpreting it, the legislature can pass a new law that clarifies the law and thus overturn the courts’ interpretation of the law.
The Constitution is also interpreted by courts and those interpretations become the law (especially if adopted by the Supreme Court). So, when you hear people complaining about activist judges making up laws, it is not entirely correct. You can complain about a court’s reading of the law or its interpretation, but to suggest that courts are not permitted to interpret the Constitution or statutes is ridiculous. An activist court may be viewed as one that is reading beyond the language of the law or reading things into the law that are not apparent on its face. This pastime is engaged in by both liberal and conservative judges. In that respect, law is more akin to an art, rather than a science.
