Why can't I get justice?

After a party loses at trial, he or she will begin to assess their chances on appeal. That's where I step in.  Once question that frequently comes up is, "Why can't I get justice?" Sometimes I am surprised when they don't, as the law and facts seem to be on their side.

My response is to point them to the U.S. Supreme Court, where decisions are often split 5-4 among the justices. Do they really believe that five of those justices saw the law in one way while the other four saw itanother? Yes, political differences affect the Court's decision. Why should it work any differently with the lower courts?

When trial attorneys pick a jury, they have an opportunity to address the jury directly and try to uncover their biases during voir dire. This is part of the jury selection process that ends with the empaneling of a jury. Then the trial begins. More than likely, voir dire is an opportunity to focus the jury on the client's story and educate them as to why the client should win. 

It is rare that a juror will admit to being prejudiced or even racist. The attorney has to uncover that fact with subtle or indirect questioning. It could be that one side has a better, more charismatic lawyer. Or the party may not be particularly likeable. Sometimes it comes down to not being white and educated.

I remember a Chinese woman, who possessed all of the evidence to prove her case against a white male defendant. She had no clue why she lost. I listened to her story and looked at the evidence. I couldn't understand why she had lost either. I surmised that she made the jury work too hard to understand her thick accent and they simply turned off when she spoke. Her trial also came at a time when the press was promoting stories about how the Chinese were taking over real estate and businesses, and soon the Chinese would own America.

Prejudices can come in many different forms. A jury might not like a woman because she is too pretty or too fat. They may not like a man who isn't well dressed or too angry. I remember the case against a former gang member, who was injured in a vehicle accident, along with his infant son. The defense argued the man was not entitled to lost wages because his "job" was being a gang member, and any money he received would be spent on drugs and criminal activities. Another man lost his case because he was an undocumented worker and the jury may have felt that giving him money would reward him for not being a citizen.

We all have our prejudices, some more so than others. Most of us want to think of ourselves as fair citizens, but those prejudices can be unconscious. How do we form our opinions of others? Why do we like some people and not others? I am sure psychologists have spent countless hours studying the process. It was never part of my official legal educations. Perhaps it should have been, but it forms the foundation of my advice, if you are able to receive justice, you are lucky.