“This is a case where the plaintiffs are trying to get something for nothing. ... It’s cases like this that make people skeptical and distrustful of lawyers and their clients who bring these types of lawsuits. It’s a big factor as to why our profession is not as honorable in the eyes of the public as it once was. But the only way that people and their chiropractors will stop bringing these cases is if juries start saying no, enough is enough. Our legal process is meant to justly compensate and make one whole, not to make them rich.”
The justices, instructing the State Bar of Nevada to pursue disciplinary action against the attorney, held counselor Emerson’s closing arguments were improper because he urged jurors to engage in jury nullification when he asked them to help curb frivolous lawsuits by deciding against the plaintiffs.
The defense attorney also violated Nevada’s Rule of Professional Conduct, in the court’s view, by expressing his personal opinion each time he discussed having “a real passion” for such cases because they caused people not to trust lawyers.
The justices held that Mr. Emerson thus “Not only violated his ethical duties, he also prejudiced the jury against the plaintiffs.”
In two of the cases, the high court upheld the district judge’s ruling that Mr. Emerson’s speech was sufficient to require a new trial.
Seeking to back up their point with what amount to huge fines, the justices ruled that attorney Emerson should pay monetary sanctions in those two cases, including the plaintiffs’ attorney costs, costs for the trials, and costs for the appeals.
This is appalling.
First, juries do indeed retain the power to reach a verdict according to their own conscience even if in direct contravention of the written law and the instructions of the trial judge. (“The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge,” said the D.C. Circuit Court of Appeals in its 1972 draft-dodger case U. S. v. Dougherty, 473 F 2nd 1113, 1139; see also U.S. v. Moylan, 1969, 417 F.2d at 1006, where the 4th U.S. Circuit Court of Appeals ruled, “If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence. ...”) The Nevada justices need to do a little reading on why the founders guaranteed us jury trials, starting with the cases of William Penn and John Peter Zenger. It certainly wasn’t to make judges, prosecutors or lawmakers happy.
But that’s not what was going on here, anyway. This was not a criminal case in which (for example) the defendant clearly broke the law by advising young men to evade the draft, and the defense attorney was urging the jury to acquit in order to express opposition to conscription and foreign wars.
This wasn’t even a case in which the defense attorney was urging jurors to “nullify” the civil law under which accident victims may sue bad drivers (and, through them, their insurance companies) to recover medical costs and be “made whole.”
In fact, attorney Emerson specifically acknowledged that plaintiffs have a right to seek enough money to “make them whole.” What he was objecting to were courts that allow ambulance-chasing attorneys to round up accident victims in casts and collars, wheel them into court, and play “Queen for a Day,” hoping a sympathetic jury will make both plaintiff and attorney rich on the seriously flawed theory that “It’s just some rich insurance company that’s going to pay.”
What the heck is a defense attorney there for, if not to “prejudice the jury against the plaintiffs,” impugning their motives as well as their claims? Nobody forced the plaintiffs into court -- they’re the one who brought the lawsuit, usually after rejecting a settlement offer. Any statements based on truth -- anything but scurrilous lies and libels -- should be welcomed into the fray. High-handed courts trying to limit what defense attorneys can say is what leads to Oakland medical marijuana activist Ed Rosenthal being convicted in a California federal court by a jury that wasn’t even allowed to learn that his pot distribution to the sick had been OK’d by the state of California!
This is the Nevada Supreme Court that should itself be disciplining the plaintiffs’ bar for tying up the courts and driving up our insurance rates with frivolous lawsuits, most of them brought in the hope and expectation that blameless defendants and their insurers will decide to “pay up” out of court rather than face the high costs of trial.
Instead, we see here the justices of the state’s highest court convening not as a panel of public servants interested in justice and equity for all -- under a system which trusts and places the final burden for conscientious justice in the hands of fully-informed citizen juries -- but rather as a kind of convocation of mob godfathers deciding how to protect their profession’s most lucrative racket by making a gory example of a disloyal footsoldier who’s broken their profession’s code of Omerta, blabbing the outfit’s secrets to outsiders.
Jurors are wise enough to sort out the wheat from the chaff. Attorneys deserve the widest possible latitude in making the best possible arguments on behalf of their clients. It is not the place of the courts to restrict what those attorneys can say to some watered down, pre-approved, scripted cant and doggerel.
The court should have congratulated attorney Emerson for speaking the plain truth, meantime asking the lower courts why we haven’t yet seen a good handful of these members of the plaintiffs’ bar sent up on charges for attempting to reach into the “deep pockets,” milking their “marks” with lawsuits lacking any appreciable merit.
If even our highest court is going to continue placing the selfish interests of their own incestuous guild above those of the public, perhaps it’s time for the voters to stipulate that the majority of the justices of the state Supreme Court must henceforth be non-lawyers.