All my Trails: Why practicing law in Alaska is better than any other state
By Rick Friedman
'We are all too prone to believe in our own programs and to follow the echo of our own slogans into a realm of illusion and unreality.'
--Thomas Merton, A Thomas Merton Reader, p.14 (Doubleday 1996, Revised Edition)
In order to head off any more columns about bestiality, the editor submitted six ideas for my future columns. To pacify him, I picked these three:
1. 'Why practicing law in Alaska is better than in any other state;' (He apparently assumes it is.)
2. 'Why practicing law in Alaska is better now than it was 20 years ago;' (This is like my kids claiming today's music is better than the music of 30 years ago, unaware that most of their favorite songs are remakes from the 60's and 70's.)
3. 'The appellate court: the 13th member of your jury -- or, how jury verdicts can be reversed.' (Now he is just baiting me. A more accurate title would be: 'The appellate court: The tail wagging the dog,' but more about that later.)
'Why Practicing law in Alaska is better than in any other state'
I have now tried cases in California, South Dakota, Idaho and Arizona. I have litigated in perhaps six to eight additional states. I'm still surprised at the parochialism of every legal community. The lawyers and judges in Sioux Falls, South Dakota are just as convinced they are in the Center of the Legal Universe as the folks in downtown L.A. Each community is equally convinced its procedures and customs are far superior to any that exist elsewhere on the planet.
In fact, from my vantage point, each community has a lot to learn from the others. The California Superior Court judge, hearing oral argument and ruling on 10 summary judgment motions in an hour and a half, could learn something from the time and attention an Alaska Superior Court judge spends on a single motion. The converse is also true. Most summary judgment motions don't justify the painstaking (and time-consuming) analysis Alaska judges devote to them.
Some of the procedural differences are truly startling. There was the federal judge, with well over a million dollars in high-tech computer equipment in his courtroom, including individual monitor screens for each juror, who refused to let me use yellow highlighter on enlarged copies of documents being shown to the jury, saying such highlighting gave 'undo emphasis' to particular portions of the document. (My partners say I am obsessing about this incident, but now that I have put it in print, perhaps I can put it behind me.) Or, did you know that in California, alternate jurors are not excused when deliberations begin, but are sent into the jury room with the other jurors and told not to participate?
I have found the quality of lawyering, or 'the standard of practice,' fairly similar throughout my travels. My sense is that percentage-wise, the distribution along the bell-curve continuum of awful lawyers to great lawyers is fairly uniform in all locales. A good lawyer from the backwaters need have no apprehension in going up against the biggest firm from the biggest city.
There is one aspect to practicing law in Alaska that is clearly better than in other states, and that is the quality of the state trial bench. While there are obviously great judges in all jurisdictions, the Alaska state trial bench has a depth and consistency I have not seen anywhere else. The cause of this good fortune is the subject for another column, but I am sure the fact that we do not elect our judges has a lot to do with it.
The worst of the Alaska state trial judges would be considered 'average' or 'above average' in most of the jurisdictions I have been. So, in that sense, I must agree with the implicit premise of the editor, that practicing law in Alaska is better than in any other state.
"Why Practicing Law in Alaska is Better Now than 20 Years Ago"
When I arrived in Ketchikan in the summer of '78 to begin an internship at the D.A.'s office, the D.A., Geoff Currall, spent two hours telling me what a great place Alaska was to be a lawyer. At that point, Geoff, who must have been in his early 30's, already had 16 or 17 children. He informed me he was taking them back east on vacation, and would be gone about six weeks. He handed me the keys to his van, told me to have a good time, and left. A good beginning for my first legal job.
Mike Thompson, who eventually became 'The Honorable Michael A. Thompson,' was an assistant D.A., and the only other lawyer in the Ketchikan D.A.'s office. He was left in charge. I don't think a day went by when he didn't remark, 'can you believe they pay us for having this much fun?' And he meant it. He was from Arkansas, or some such place, and thought he had died and gone to heaven.
In those days, when the sun came out in Ketchikan, businesses closed. (This was before the tour ships.) When the sun came out, Mike closed the D.A.'s office, and took me in tow. We went to Ben Franklin (owned by Mike's in-laws), pulled the cheapest fishing gear we could off the racks (Mike was a big believer in disposable fishing gear), and made a beeline for Humpy Point. I can still see Mike cackling, his four-foot plastic rod bent almost in half, as he pulled in one humpy (pink salmon) after another. In two hours we would have our limit of 6 apiece, and be heading back to town.
In the late 70's, early 80's, lawyers on different sides of a case often got along quite well, socializing with each other, sharing a drink while awaiting a verdict, comparing notes after a verdict. There was not the sense that there often is today, that the parties (and their attorneys) are engaged in some kind of holy war. In this sense, practicing law in Alaska was better 20 years ago than it is now.
I also have the sense that the practice of law, in Alaska and elsewhere, has become more politicized over the last 20 years. Corporate America began to recognize that the only thing standing between it and the profitability of exploding Ford Pintos, asbestos pajamas, and Dalkon Shields was the American Courtroom -- and more specifically, the American jury system. So, corporate America unleashed its considerable marketing and lobbying skills on what Thomas Jefferson called the most democratic of our institutions.
Sadly, in its war upon the jury system, Corporate America found no shortage of collaborators among the individuals sworn to protect and uphold that system: judges. See Evans v. State,_P.3d_(Alaska 2002), Op. # S-9313 (plurality opinion). Perhaps in the future we can explore what motivates such betrayals -- betrayals that occur every day throughout this country. For now, it is enough to note that in this regard, practicing law is not better in Alaska now, than it was 20 years ago. (Can you think of any member of the 1982 Supreme Court who would have signed off on the plurality opinion in Evans?)
On the other hand, there is no question that the quality of the state trial court bench has improved dramatically in 20 years. While there were many good judges 20 years ago, our trial bench today is an extraordinary phenomenon. In terms of intelligence, competence, judicial attitude, work ethic, freedom from bias and the other qualities that make for good judges, our trial bench is second to none. Anyone who thinks otherwise should spend a week in any courthouse in any other state in the union. You will come back wanting to kiss the totem poles in front of the Nesbitt courthouse.
In recent years, we have seen breath-taking acts of judicial courage: Judge Michalski's ruling on homosexual marriage, Court of Appeals Judge Bryner's first opinion in the Hazelwood criminal prosecution (upholding Hazelwood's government-promised immunity) and Judge Link's decision in the Tetlow case (finding prosecutorial bad faith). Regardless of whether one agrees or disagrees with these holdings, there is no denying that they do much to disprove the implicit lesson of Evans: that 'judicial courage' is an oxymoron.
On balance though, and at the risk of sounding hopelessly and unrealistically nostalgic, I would go back 20 years and take less competent judges in a less politically charged judicial climate.
'The appellate court: the 13th member of your jury or, how jury verdicts can be reversed'
At the outset, note my gratitude that the editor did not ask me to address how jury verdicts can be upheld. That would be far outside my area of expertise. I do, however, feel eminently qualified to describe how jury verdicts can be reversed: get a good trial result for a plaintiff. The 'how' is easy, the 'why' is more interesting.
Anchorage lawyer Don Bauermeister unintentionally suggested to me the reason why. Don is one of the most under-appreciated lawyers in Alaska today. An accomplished poet, trial lawyer and CLE lecturer, Don is a brilliant and creative thinker. When he mentally goes for a meandering walk, I have to all-out sprint to keep up. Don is becoming famous Outside for his CLE presentations on economics, punitive damages and the thinking of conservative jurors. It seems like not a week goes by that I don't get a call from a lawyer in Nevada or California, raving about Don's presentation and testifying to its effect on his or her own thinking.
Anyway, Don is generous with his time and his ideas. Recently, as he shared with me his evolving knowledge of perception, he cited some examples from Paul R. Ehrlich's book, Human Natures. Knowing I am too lazy to read the entire book myself, Don sent me the relevant chapter, part of which I will share with you:
[ed. note: Friedman includes an optical illusion consisting of two vertical lines, with opposing direction arrowheads.]
Which of the two parallel, vertical lines is longer? Although the line on the right appears longer, each line is actually the same length.
Most of us have been mildly amused by this perceptual illusion before. Here is the interesting part: When the diagram is shown in what Ehrlich calls 'carpentered cultures,' cultures with sophisticated exposure to lines, angles and geometry, individuals invariably perceive the line on the right as longer than the line on the left. When it is shown to people with very little exposure to lines, angles and geometric shapes, (such as people dwelling in rainforests or on wide plains), they correctly perceive that both vertical lines are of the same length.
Stated another way, those with the most education, sophistication, familiarity and knowledge about the question being asked, are least likely to get it right. Their perception has been unconsciously biased by the very experiences we would expect to give them a leg-up. The blue-ribbon architect from New York City will be unable to see the truth that is obvious to the Pygmy who has never left the Congo jungle.
Of course, convincing the New York architect to defer to the Congo Pygmy on matters of linear perception, would be like convincing many judges their perception is less accurate than that of the common mob that makes up a jury. Intelligent, self-confident and accomplished, judges are unaware that their long experience in a 'carpentered environment' often makes their perceptions less accurate, rather than more so. This truth is not only counter-intuitive, it strikes at the heart of many judges' sense of self.
In my experience, whether on the appellate or trial bench, a judge's deference to juries is a cultural variable. There appears to be a correlation between the level of privilege in a judge's background and his or her lack of deference to a jury. There are numerous and notable exceptions--I would be the first to acknowledge that--but there does appear to be a pattern.
So, returning to the question at hand, verdicts often are reversed for good, solid procedural reasons. But often, they are reversed because the appellate judges perceive the merits of the case, through their paper lenses, from their 'carpentered environment,' differently than the jury did. Implements are lifted from the legal toolbox to 'prove' that the right line is longer than the left. The fact is that the modern trial of moderate complexity has so many potential appellate issues that an adroit appellate judge can reason to almost any result he or she (consciously or unconsciously) wants. Without a heavy dose of humility on the appellate bench, we are left with trial by appeal, not trial by jury.
What I really wanted to talk about: Lying to Juries
Having hopefully satisfied the Editor's requirements, I can now address the topic that is really on my mind: Central Bering Sea Fishermen's Association v. Anderson,_P.3d_ Op. # S-9955 (Alaska 9/6/2002). Specifically, the portion of the opinion on whether the jury should be instructed on the limits of its authority to award damages--the infamous 'caps.'
Anderson held it was error to instruct the jury on the punitive damages cap. (Presumably, the same holding will apply to the cap on noneconomic damages.) The court stated:
"Putting caps before the jury carried a substantial risk of suggesting the range of appropriate punitive awards. Moreover, no countervailing benefit could be gained from the instruction.(1)"
The first question is, what is wrong with 'suggesting the range of appropriate punitive awards?'
In genuflecting before the Alaska State Legislature in Evans, the plurality noted it was an 'outlandish assumption' that 'damages fall within the exclusive province of the court system.' The plurality told us loud and clear that the Legislature has the power to set the range of appropriate awards. If we all must defer to the wisdom of the Legislature in these matters, why shouldn't the jury be told? As a matter of law, this is the range of appropriate awards. We tell the jury all the time what is legally appropriate and inappropriate. Why keep this aspect of the law hidden like some shameful secret? It isn't, is it?
A horribly burned quadraplegic, doomed to decades of immobile agony, is now legally entitled to a maximum of $1 million in noneconomic damages. Why not tell the jurors that before they spend hours and days agonizing over the value of pain, suffering, loss of enjoyment of life and consortium? Wouldn't a defense lawyer want to invoke the Legislature's wise benchmark in arguing to a jury that a mere amputee is only entitled to $200,000? Why deprive the jury of the Legislature's wisdom and expertise?
The Court says 'no countervailing benefit could be gained' from instructing on the caps. How about the benefit of a truthful and honest system? The justice system belongs to the people, not to lawyers and judges. At most, we hold it in trust for them. Every experienced trial lawyer or judge has seen jurors deliberate for days, has seen them emerge from the jury room in tears, exhausted from the struggle of trying to do justice. How can we expect them to respect a system that doesn't respect them enough to tell them the truth?
In the case of the caps, the truth is they do not have the power to award plaintiff more than a certain amount. Just like they don't have the power to award attorney fees or interest in most circumstances. Not telling them is arrogant and manipulative.
I fear this is another step in the journey towards making trials performance art. We create a big dramatic show for the benefit of 'the public' and the jury. The jurors are told at the outset that they are the most important part of the system, that people have fought and died for the power they are about to wield as a jury. The verdict is announced with great fanfare. Then, the trial judge, required to follow the command of the Supreme Court and the Legislature, automatically, and behind closed doors, quietly takes part of the verdict. The trial judge, if convinced the right line is longer than the left, may also take away all or part of the verdict for reasons of his or her own. Whatever remains of the jury's decision is then picked over by the Supreme Court, many years later, when all but the parties have forgotten the case.
If we are not careful, what will be left is nothing but propaganda: the appearance of a democratic institution, actually manipulated and controlled by an affluent, educated, powerful elite--an elite morally certain the right line is longer than the left.
Rick Friedman can be contacted at Allmytrails@hotmail.com