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Litigation News

Winter 2023, Vol. 48, No. 2

Dispel Misconceptions and Misinformation about Our Courts

Hon. Carl A. Aveni


  • Lawyers have a responsibility to help dispel misconceptions about the legal system and promote public understanding and trust in the judiciary.
  • The American legal process faces continuous public criticism, particularly on social media, often based on unfair or uninformed judgments.
  • The ABA Litigation Section has developed a guide to help lawyers counter misinformation and unjust criticism of the judiciary, emphasizing the importance of maintaining public faith in the rule of law and an independent judiciary.
Dispel Misconceptions and Misinformation about Our Courts
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Next month, two newly elected judges will be joining our local bench. I intend to give them the same advice that I received from more experienced colleagues as I was getting started:

Take your time. Stay hydrated. Never read the comments on social media.

The first bit is good advice for any deliberative profession, just as the second is a nod to the long days of hearings or trials this work sometimes requires. But the third isn’t really about the courtroom at all. It’s a recognition of the broader societal climate in which we work and the fact that the loudest opinions in the public marketplace are not in every instance the best informed, the most carefully thought out, or the most objectively reasonable. And if the judicial system deserves scrutiny and owes accountability along with every other governmental institution in our democracy, it nevertheless remains both uniquely opaque to outsiders and especially reliant on the public’s trust in its integrity.

This column is traditionally a place where judges share practice tips, highlighting procedures and tools that lawyers should use to optimize litigation outcomes. As it should be. This one time, however, in the face of pressing need, I’m inviting lawyers to turn their gaze outward, to address the steps they should take to also optimize public understanding of the work we all do.

Framed as a practice point, it would be this: Clients and their lawyers are better served by having their disputes resolved in a forum that enjoys public trust and confidence. A public that regularly hears its legal system maligned as wholly arbitrary or entirely bias-driven is less likely to voluntarily participate in that system as jurors, witnesses, or litigants.

Lawyers as Leaders and Guides

Because of their special education, training, and experience, lawyers are uniquely positioned to help stem the tide. The preamble to the ABA Model Rules of Professional Conduct recognizes in its very first sentence that “a lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” Section 6 of that same preamble urges that “a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.” Indeed, the Comment to ABA Model Rule 8.2 directly advocates that “[t]o maintain the fair and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized.”

None of this is intended to shield the courts from fair and informed criticism. All human institutions are fallible, and courts owe the public duties of responsibility and transparency as well as diligence and independence. As Thomas Paine famously cautioned in 1791, “[a] body of men holding themselves accountable to nobody ought not to be trusted by anybody.”

Perhaps for that reason, lawyers are also expressly reminded in the comment on ABA Model Rule 8.2 that “[a]ssessments by lawyers are relied on in evaluating [court officials and offices]. Expressing honest and candid opinions on such matters contributes to improving the administration of justice.” The Model Rules thus balance these twin objectives in the preamble at 5, by noting that “[a] lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.”

Countering Public Confusion or Unfair Misperception

And make no mistake, the norms and institutions of the American legal process are under continuous public criticism—particularly on social media—and not always in a way that is objectively fair or informed. Consider, for example, whichever was the most recent high-profile courthouse story published by your hometown newspaper to its social media page. If it was a criminal process story about a defendant granted bond, a significant percentage of the public commentary likely presumed the defendant’s ultimate guilt and conflated pretrial processes with the punitive aspects of post-conviction sentencing.

And to be clear—I’m not at all suggesting that individual bond decisions should be beyond public reproach or critique. Nevertheless, the constitutional presumption of innocence and case-specific questions of flight risk and public safety are necessarily part of the discussion at the courthouse but rarely find their way into the social media discourse that follows. And arguments centered on punishment will almost always be uninformed or misplaced in the context of pretrial bond calculations.

If the most recent courthouse story was about a civil jury trial, the social media critique will likely include a scathing review of the damage award—either far too little or far too much. Either not enough to “send the right message” or so much that there was a “runaway outcome.” But in either event, such comments likely will be accompanied with little or no sense of what testimony or evidence was adduced at trial, or the means by which compensatory damages are calculated in the first place.

In either instance, the judge may be attacked as ruling from political bias—because he or she was elected to office, or was appointed by some politician, or was selected by some smoky backroom committee of insiders. If the story was about a criminal plea deal, someone thinks the prosecutor is soft on crime. If it’s a civil corporate defendant, you can expect competing narrative tropes in both directions. The comments will likely give short shrift to the admissibility of evidence, the strength of any defenses, or the willingness of the witnesses or victims to participate in a trial. Process will be conflated with outcome. Outcomes will be painted as arbitrary.

But all lawyers, civil and criminal alike, should be concerned about the cumulative effect of this loss of nuance on our public discourse about the courts; especially as both amplified and reduced across social media echo chambers.

Setting the Record Straight

Fortunately, the ABA Litigation Section Committee on the American Judicial System has spent several years studying this problem as part of its threefold mission: (1) protecting judicial independence and the rule of law; (2) preserving fair and impartial courts; and (3) responding to unjust criticism of the judiciary and the media. Toward that end, it has prepared a comprehensive guide, Rapid Response to Fake News, Misleading Statements, and Unjust Criticism of the Judiciary. This practical tool contains checklists and decision trees that allow local bar associations and individual lawyers to quickly and effectively counter misinformation and unjust criticism where they find it online. It’s worth reading and sharing with your colleagues.

The practice tip for this column is that litigators and judges share an abiding interest in maintaining the rule of law and an independent judiciary, underpinned by public faith in its integrity. Clients, witnesses, and jurors alike draw on that public faith in the discharge of their varied responsibilities. Our system is predicated on that faith and neglects it at no small peril to our democracy. It’s time to do better.


  • ABA Standing Committee on the American Judicial System, Rapid Response to Fake News, Misleading Statements, and Unjust Criticism of the Judiciary (2018).
  • Thomas Paine, The Rights of Man (1791—1792).