chevron-down Created with Sketch Beta.
June 01, 2015

Sua Sponte: A Judge Comments

A judge discusses what can be done about stereotyping by litigators.

Hon. Mike Engelhart

In response to “When Stereotypes Attack” by Justice Bridget Mary McCormack and Professor Len Niehoff, I will tell you that I am a Texas judge, but I don’t cultivate a hanging tree outside of the courthouse. Guns? Yes. Under the robe? Not necessarily. In fact, I’m actually originally from New Jersey, just like Justice McCormack. And I’m a Michigan alum, just like Len Niehoff. Go Blue! The point? Don’t stereotype Texas judges.

Justice McCormack and Professor Niehoff caution against lawyers relying on lazy stereotypes. That’s fine. But let’s talk about why it happens and what can be done to curb this moral, if not tactical, failing.

Why does it happen? Easy—lawyers are historically overworked and under-supplied. I know I was when I ran a three-lawyer firm for over a decade before taking the bench. Many, if not most, lawyers work in small firms, for the government, for legal aid clinics, as public defenders, or as sole practitioners. Leaving aside the big law firm and corporate attorneys with superior resources, most litigators approach cases on a budget. A budget of money, time, and mental energy. Their business may be based on volume, which leaves little time for preparation between hearings and trials to formulate anything more than stereotypical views of those they’ll encounter. A harried lawyer will get up while it’s dark, race to the office with taco and coffee in tow, and try to squeeze in 90 minutes to two hours of responding to motions or answering discovery before speeding to the courthouse, finding a spot, and getting through the metal detector. They’ll wait much too long behind some other lawyer’s discovery hearing (“oh, just one more thing, Judge . . .”). Then they’ll have their hearing, or three. Then a high-carb lunch in time to get back to the office to sift through large stacks of papers in the conference room. They’ll get out of the office just in time to find their family already asleep at home. It’s easy to see why they don’t always find the time to work up the ideal voir dire.

In contrast, in bigger cases, I have watched lawyers with great resources who have put great time and treasure into a given case. They have brought battalions of helpers, including jury consultants. Jury consultants are expert at posing the right questions to identify prospective jurors’ actual beliefs. Through their dark arts, they represent the opposite of the moral and strategic hazard described by McCormack and Niehoff. The results justify the expense. If nothing else, they are another trained, experienced brain focused on gathering objective information about jurors (and I am sure they have profiled my tendencies as a judge, too). If you add in the likelihood that both sides in such cases have been able to focus-group or mock-try the case, the authors’ concerns about lazy stereotyping are minimized geometrically.

So, if we agree that it is preferable for busy lawyers to gain more objective insight into jurors’ and other courtroom actors’ minds, how do we do that? Three suggestions.

First, voir dire is a precious tool that is often wasted. When I was a litigator, I thought many judges often gave voir dire short shrift, treating it almost like an afterthought. Judges, therefore, can allow lawyers sufficient time to explore important issues in jury selection as a rule rather than the exception. The corollary to this, though, is lawyers recognizing the need to amply prepare for it.

Second, jury questionnaires are appropriate in more cases than those in which they’re currently used. We should encourage their proliferation. If used correctly, and if the lawyers are given time to digest the information learned, they can greatly enhance the lawyers’ peek behind the jurors’ mental curtains.

Third, when we talk to younger lawyers, we should emphasize the importance of voir dire and the need for greater diligence in preparing questions for prospective jurors.

It is hard to have even this discussion without some stereotyping. That is, not all small firm lawyers are forced to stereotype. And not all big firm, well-stocked types have the skills to make the most of their advantages. Indeed, when we talk about the danger and immorality of stereotyping, we are really talking about overcoming one of the major Darwinian survival mechanisms that make us human. We have evolved to be able to quickly judge our surroundings and potential friends and enemies to know when to stay, fight, or flee. Lawyers must do the hard work to overcome this default position or risk underserving their clients and, ultimately, their careers.

Hon. Mike Engelhart

The author is a judge on the 151st Civil District Court, Harris County, Texas.