In Memoriam: Monroe Freedman

Monroe Freedman, former dean and professor at Hofstra Law School, passed away yesterday.  A legendary figure in legal ethics, he will be missed by so many for his warmth, generosity and tremendous and highly influential body of work.  In the field of what we now call behavioral legal ethics, Monroe may have been the first scholar to use behavioral insights from psychology with regard to lawyers’ ethics (see Lawyers’ Ethics in an Adversary System (Ch. 6, Counseling the Client: Refreshing Recollection or Prompting Perjury?) (1975)).  His subsequent book, Understanding Legal Ethics, continued to make use of the insights from psychology and related fields (See pp. 202-216 (preparing witnesses), 139-140 (confidentiality), 40-41 (adversary system) (3d ed. 2004)).

He will be deeply missed.

[update: LEF readers have been leaving their thoughts about Monroe here].

[Update #2:  Prof. Abbe Smith‘s moving remarks about Monroe are here]

[Update #3:  Hofstra Law School has re-named the Institute for the Study of Legal Ethics in Monroe’s memory.  Information here].

McCulloch and Protesters Come to SLU Law

Yesterday, Saint Louis University School of Law hosted the student-run Public Law Review symposium, titled The Thin Blue Line: Policing Post-Ferguson.  Robert McCulloch, the prosecutor at the center of the storm of controversy surrounding the Darren Wilson/Michael Brown grand jury process, was the opening speaker.  Earlier this week, our law school faculty meeting was the scene of some intense conversation about the up-coming event.  Some faculty worried that providing McCulloch a forum would be harmful to our students of color. Other faculty expressed concern that students who supported McCulloch’s visit felt denigrated.  All faculty members were united in a single goal: to create a space where our students felt free to express divergent views in a respectful and supportive way.

Along with more than 200 guests and speakers, I was in the room for McCulloch’s talk.  He spoke about the grand jury process.  It was a page out of my Criminal Procedure class.  Several minutes into his talk, a young woman in a judge’s robe stood up and interrupted him.  She, along with several other protesters in the audience conducted a mock trial in which McCulloch was the defendant.  McCulloch asked that they stop and allow him to continue talking, as did Dean Wolff.  SLU President Pestello, who was in attendance, similarly implored them to permit McCulloch to continue.  Saint Louis police and SLU security personnel were in attendance, and many of us watched them for any sign that they would move forward to intervene.  None of them moved.  The mock trial continued, and the protesters “convicted” McCulloch.  The dissenting voices ceased, and McCulloch continued his talk.  Several more minutes passed, and a second round of protesters rose, holding signs with tombstones on them.  Their singing drowned out McCulloch’s voice, and they were stalwart in the face of more pleas from President Pestello.  When it became clear that they would not stop, several security and law enforcement personnel moved in and escorted them out.  One more round of protesters interrupted and they were escorted out in a similar fashion.

I will remember the event for a long time to come, not for the content of McCulloch’s talk, nor for what the protesters said.  Notable to me was McCulloch’s willing to come and open himself up to protest and searching questions from audience members.  As an elected official in charge of critical decisions that affect whole communities in fundamental ways, he has that responsibility.  Still, he came to a place where he had very little control over the identity of the audience members and the response to protesters.  I will also remember the protesters, who insisted on giving voice to a perspective they clearly felt had been silenced for too long.  Their approach was disruptive, and I dare say unpleasant for many in the audience.  They could have tried to convey their views during the Q&A, but they clearly felt that this forum did not allow them sufficient space to challenge McCulloch.  They wanted to be heard, and they were.

In the end, what I believe I will remember as being most significant is the pains that were taken to move carefully and to be thoughtful about the response to the protesters’ disruptions.  I don’t know who made the call, first to allow the protests to go on, and then to quell them in order to permit McCulloch to continue.  Not everyone will agree that the right balance was struck.  (Several members of the audience shouted out some version of “Take them out!” at various points prior to the removal of the protesters.)  To my mind, that is beside the point.  More important, through action and inaction, the administration of our law school conveyed acceptance of differing viewpoints, and tolerance of various forms of expression.  There was neither immediate action to silence the protesters nor acceptance of their agenda to disrupt McCulloch’s talk.

In post from November 29, entitled “Teaching Ferguson,” I wrote about my hope for a lesson I try to convey to my students:  listen to all viewpoints, keep an open mind, challenge your own views, and subject them to constant and meaningful testing.  Yesterday’s event was a delicate balancing act, but it seems to me that in the face of challenging circumstances, SLU Law managed to operate according to these principles.

Scholarship Update

Two leading scholars on psychology for lawyers, Jean Sternlight and Jennifer Robbennolt, have a new article in the current issue of the Journal of Legal Education, entitled Psychology and Effective Lawyering: Insights for Legal Educators.  As many readers know, their earlier work  has largely defined the field of behavioral legal ethics, including inspiring this blog.  This new article, which focuses more broadly on why and how law schools should teach core tenets of psychology, is a must read for anyone interested in teaching behavioral science in legal education (we also very much appreciate the mention of this blog at fn. 122).

Teaching Psychological Science to Future Litigators: Where is the Line?

Because I am a JD-Psychologist, each year, I teach a seminar that covers, in some form or another, “the psychology of the courtroom.”  The course is a favorite of mine, both because it always draws an enthusiastic crowd of students, and also because it allows me free reign to talk at length about a subject that I usually only have time to briefly cover in my Torts and Criminal Procedure classes.

This semester, for the first time, I have decided to focus on persuasion.  When my seminar has had a broader focus in the past, I have asked the students to think about policy questions and to ask themselves: Why is the law this way? Do laws and legal processes encourage the kinds of behavior we want to encourage?  Could we, perhaps, be doing a better job?   Persuasion can be a tricky topic for a law professor to teach because it inevitably leads down a shady path toward the strategic use of empirical findings to shape jurors’ attitudes.  In the broader social policy arena, we talk about changing attitudes for the good of society—examples include persuading people to stop smoking or to vaccinate their children.  In the context of the courtroom, let’s face it, we’re talking about strategically controlling the memories, perceptions, and emotions of members of the jury to achieve the desired verdict.  I am bound by codes of professional ethics in both of my disciplines, but it is my responsibility to my students, and to their future professional integrity, that creates the most cognitive dissonance for me.  So my class has gained an unintended ethical component, and I find myself asking: where is the line between effective lawyering and unscrupulous manipulation?

In my effort to get a sense for the views of others in the legal academy, I searched for articles related to the ethics of using empirically supported persuasive techniques in the courtroom.  What I found was, well, almost nothing.  This is interesting in and of itself.  Why is so little written about the ethics of manipulating a jury?  Is the reason for this because we all assume that every lawyer may—and perhaps should—use every tactic at his disposal, short of violating rule of professional conduct?  As a practical matter, trials are adversarial battlegrounds, where some rules may be followed less strictly than others.  For example, my sense is that MRPC 3.4 (e) prohibiting a trial attorney from alluding “to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence” and from stating “a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused” is probably flexed more than some other rules.

I had trial tactics on my mind when I walked into the other course I’m teaching this semester, Criminal Procedure, Adjudication last evening.  I showed the students a film called “Gideon’s Trumpet,” which tells the story of Clarence Earl Gideon (played by Henry Fonda), who famously petitioned the Supreme Court from a Florida Prison, contesting the constitutionality of a trial without legal representation.  The resulting case, Gideon v. Wainwright, gave every indigent criminal defendant the right to counsel.  The movie depicts two trials.   The first showcases Gideon’s monumental failure, as he attempts to represent himself.  The second occurs after he gains the right to be represented by local counsel.  The stark contrast between the trials is one of the most poignant and powerful reminders of the importance of a skilled trial attorney in shaping verdicts.  The rhetoric, intonation, and body language of Gideon’s lawyer, and the way he reframes the narrative, turning the prosecution’s eye witness into a credible suspect, is a perfect example of how psychological tactics can operate in a courtroom.  Of course, this is Hollywood, but the result was still compelling.

Here are a few thoughtful pieces on this general subject:

The Arts of Persuasion in Science and Law: Conflicting Norms in the Courtroom

Through a Glass Darkly: Using Brain Science and Visual Rhetoric to Gain a Professional Perspective on Visual Advocacy

The Ethical Edge of Persuasive Tactics

The Emotional Juror

Behavioral Ethics and Criminal Defense Lawyers

Two cross-postings for anyone interested in the intersection of behavioral ethics and the work of criminal defense lawyers:

 

(1) On the Sixth Amendment Center’s website, Executive Director David Carroll posted this question and answer session regarding my article, Prescriptions for Ethical Blindness: Improving Advocacy for Indigent Defendants in Criminal Cases.  The post also can be found at the National Association for Public Defense site.

(2) On The Continuing Duty, a site I host with my colleague David Siegel, I posted “The Strategic Use of ‘Bounded Ethicality’ in [Post Conviction Review] Proceedings.”  In it, I discuss two state judicial opinions that address research on behavioral ethics and my article, The Psychology of Conflicts of Interest in Criminal Cases, as part of the larger discussion of whether criminal defense lawyers can be objective in evaluating their own conflicts of interest.