Breathe Deep: The Power of the Civil Law

These are troubled times for the law.  Both our criminal justice system and our discourse about public affairs in general seem to be in a permanent downward spiral.

The shooting cases in middle American cities:  Dallas, Milwaukee, Baton Rouge, and too many other places to name, have created the impression that we live in the Old West where incidents are judged at the scene with the punishment to be meted out immediately.  In the face of these incidents, the criminal justice system has not faired very well.  Police officers are accused – their careers ruined – and then acquitted.  Minority communities continue to feel that they have been unjustly targeted by police actions.  The 24-hour news cycle, cell phone videos, and the internet only turn up the volume on the discussion of these cases and drive people who are ignorant (in the literal sense of that word) to jump to conclusions.

In times like these it is comforting to remind myself why I became a lawyer and of the healing power of the law and in particular the civil law.  Civil trial attorneys are trained to pause and examine the evidence — all of the evidence — before reaching conclusions. Trial attorneys know that the truth in each case is difficult to come by and multifaceted.  One videotape angle may seem to disclose the truth when only later, a new video is disclosed which shows the incident in an entirely new light.  To get to the bottom of the matter requires patience, time and concerted effort, qualities that are disfavored in today’s discussions about police shooting cases.

I was reminded about the public’s tendency to rush to judgment in the University of Virginia “Jackie” rape case which proved to be fictitious.  It was not my alma mater’s finest hour as the administration and fraternity was “tried and convicted” before the truth could come out.

We would all do well to take President Obama’s advice to “take a deep breath” during these troubled times.  On top of the President’s advice, I would further advise this:  in the event of a tragic incident consult with a good civil trial attorney.  Because what is frequently forgotten is that not all cases are criminal cases.  To obtain a criminal conviction requires the highest burden of proof known in our legal system.  A defendant must be guilty of a crime beyond any reasonable doubt.  This is not merely arbitrary: to deprive a person of his most precious right, his liberty, is the most serious sanction our system can level.  Simply put, we want to be absolutely sure that the defendant is guilty.  But an acquittal on criminal charges does not and should not end the matter for serious cases.  The issue in civil cases is very different and has to do with the reasonableness of police conduct and mistakes made.  In such cases, the burden of proof is intentionally lowered to “a preponderance of the evidence,” and the results can bring truth, light and justice to bereaved families.

To be sure, monetary compensation (which is the sole remedy in a civil case) is cold comfort for grieving family members.  To state the obvious, no legal case can resurrect the dead, and perfect justice is not available on this earth.  But for many, the results of a civil case can bring closure and healing.

Not all police misconduct cases have merit, but when they do and they are properly prosecuted by a civil trial attorney, the public can take some comfort that a measure of justice has been rendered.  It is good to remind ourselves of the role of civil trial attorneys during times like these and to remember to take that deep breath.