Written by Rosalind Fournier
We love a good legal drama because it speaks to the darkest and most intriguing places in the human psyche. By its very nature the law is dramatric—a high-stakes game of searching out the truth, managing difficult personalities and oversized egos, and giving it your all for clients who are facing the biggest crises of their lives. We reached out to top attorneys for a behind the scenes look at the psychology of law.
If our consumption of legal drama on the page and screen is any indication, Americans can’t get enough of watching the legal system at work. Think “To Kill a Mockingbird,” which is required reading (as it should be) for every child in school as well as a classic film which won three Academy Awards. The legal thrillers of John Grisham, a former lawyer himself, have consistently hit the bestseller lists for more than two decades. And does anyone need help placing this fictional courtroom line: “You can’t handle the truth”? In the ouvre of memorable Jack Nicholson lines (you’ll find at least one more in this story), it’s one of his most famous.
Then there is the eternally popular TV law-firm genre: “Perry Mason.” “Matlock.” “L.A. Law.” “Ally McBeal.” “The Practice.” “The Good Wife.” The list goes on and on—and that’s not even to mention “Law and Order,” which ran for 20 seasons and continues to this day with its spinoff series, “Law and Order: Special Victims Unit.” Even real courtroom drama can turn into national addiction—think O.J. Simpson, whose Trial of the Century continues to bring in ratings by way of two recent television retellings—one a fictionalized account (“The People v. O.J. Simpson”) and the other a documentary (“O.J.: Made in America,” which won Best Documentary at this year’s Academy Awards.)
It begs the question: Why are we so intrigued by courtroom drama? It’s sexy, for one—especially on TV and in movies, where every case is full of intrigue, everyclient comes with a compelling backstory, and everything moves at breakneck speed.
But maybe the best thing about witnessing the high-tension, lawyer-client meetings behind closed doors; aggressive cross-examinations on the stand; last-minute discoveries and revelations; or the ultimate nail-biter—waiting for the jury to return from deliberations—is that it’s not our lives on the line. We can take it all in from the safety of our living rooms, binge-watching on our iPads or relaxing on the beach with a great crime novel, knowing we can put it down whenever we want and move onto something else.
There’s almost something cathartic about experiencing law-and-order stories from a safe remove—because even if you remove the raciest plots and details, for a real-life person being charged with a serious crime, it’s nothing short of a nightmare from which they can’t wake up.
Augusta Dowd of White, Arnold & Dowd P.C., a prominent trial lawyer with over 30 years of experience primarily in civil and complex litigation and white-collar criminal defense, puts it this way: “We have clients who are facing conviction of fraud, embezzlement, some form of theft or whatever it is—something where people look at them in a new light, and their livelihood is out the door,” she says. “There are some significant psychological ramifications as people fight to stay afloat when they’re having to redefine who they are with a potential prison sentence hanging over them. It’s incredibly devastating.”
And while the defendant is at the center of the story, he or she is not the only one affected—and affecting—the case. For the lawyers hired to represent them, the responsibility is enormous. For judges and juries, being charged with deciding another’s fate can be daunting. By the time you factor in the families and the stress placed upon them, there’s a maelstrom of emotion that can’t be managed by consulting any law book.
What interested us, though, is how all that emotion—the psychology behind the law—ultimately impacts outcomes. We approached top attorneys in the area to get a feel for the human element and how they try to understand, manage and even use it to create best-case scenarios for their clients.
“There is so much psychology in all of this,” says Doug Jones, who has worn both defense and prosecution hats (and is best known for successfully prosecuting two former Klansmen in the 1963 murder of four little girls in the 16th Street Baptist Church bombing), “it’s unbelievable.”
It’s also far reaching. There’s the psychology of the client: If he or she is either too distressed or defiant to understand the charges against them, it hurts their ability to assist in their own defense. There’s the psychology of the jury: If a lawyer fails during voir dire to establish enough rapport with potential jurors to know which spell trouble for their client and which are more likely to give them a fair shot, the case is imperiled before it even starts. There’s even a separate kind of psychology that comes with mediating cases rather than trying them in court, where being able to reign in aggression, hear people out and work toward compromise is an asset rather than a sign of weakness.
The lawyers we consulted have learned a lot over their careers about these unique aspects of the law—but the best are smart enough to know that when humans are involved, they’ll never be completely in charge, and sometimes they just use their best judgment and hope their instincts serve them well. As Jim Parkman, the well-known white-collar defense attorney whose successful defense of HealthSouth CEO Richard Scrushy first put him on the national map, says, “Sometimes it’s hard. You just have to get out there and do it.”
In court, Jim Parkman, lead trial attorney for the Parkman Law Firm, is alternately the consummate Southern gentleman and, when need be, a rattlesnake. Most famous for winning a seemingly impossible acquittal for Richard Scrushy in 2005 (as well as a long list of other white collar criminal defense, federal drug cases, homicide, criminal appeals and a host of other felony cases), Parkman arguably understands the psychology of litigation as well as anyone.
His practice at the art of jury selection is no exception—or jury deselection, the term many attorneys prefer, since voir dire is more a process of strategically striking jurors who are likely to show bias against one’s client than attempting to choose those who will see them favorably. The latter is ultimately a fool’s errand anyway, as attorneys are only given a limited pool from which to choose, and none may be their ideal choice.
For Parkman, step one in the process may be watching the opposing counsel during the striking phase for signs of what kind of juror they seem to prefer. “These are things you learn that sound so simple but are so interesting,” he says. “Let’s say the other side starts with, ‘I strike juror number 2.’ Next, they strike number 4, and then 8…they’re going straight down the list, so you can see if there’s a pattern in the jurors they strike. But the good lawyers will keep them guessing: “I strike #35.’ ‘I strike #2.’ And that’s the psychology of striking—trying to keep the other side not knowing who you want or don’t want.” (Another advantage of figuring out what the opposing counsel is looking for—or not—is you might guess rightly that they’re going to nix someone who is also on your strike list, allowing you to save that strike for someone else.)
John Lentine of Sheffield & Lentine P.C. practices criminal defense work on the trial and appellate levels throughout Alabama and in a variety of federal trial and appellate courts. He has a slightly different take on the psychology of jury selection, which stems from his absolute determination to learn everything he can about the experiences, mindset and predisposition of potential jurors before deciding which to keep and which to strike. He also believes it’s one of a defense attorney’s most difficult jobs. “When I go into a particular case, especially during the voir dire process,” Lentine explains,
“what I’m trying to do is find out as much about people as humanly possible within the time parameters that I’m given—and that’s not generally a long time.”
He says the goal is to demonstrate to potential jurors that he genuinely respects their time and wants to hear them out. He also wants to make them comfortable enough to share views they might not feel comfortable sharing—but that could be highly pertinent to the case. “It’s extremely challenging,” Lentine says, “because the one time people don’t want to talk about themselves, really, is during a jury selection. They don’t know anyone they’re sitting next to. They don’t want to be perceived by anyone else as thinking in a way that’s different than other norms. But all those kinds of things are probably important to who you may end up wanting or not wanting on your jury. And if I have gotten through an entire voir dire and there’s somebody who has said nothing the entire time, then I have done a terrible job. I think any good lawyer who’s doing voir dire has to understand that you’re not there to judge or agree or disagree with what they say; I want to know why they’re saying it. So I have to create an environment that allows people to want to talk and say some things that you might find utterly repulsive. But instead of reacting by saying, ‘That’s terrible,’ your reaction really needs to be, ‘Thank you. I appreciate your sharing that.’ Because the worst thing is not getting that information, not striking that juror, and that juror remains on your jury.”
Lentine believes so strongly in creating an environment that invites free expression during voir dire that he has a favorite quote he always shares with students in the trial-advocacy course he teaches at Cumberland School of Law. It’s from the 2006 film “The Departed” starring Jack Nicholson, Leonardo DeCaprio and Matt Damon. “Nicholson says, ‘I don’t want to be a product of my environment; I want my environment to be a product of me,” Lentine quotes. “That’s my view of jury selection, and for that matter, how I try a case. I want to create an environment that’s a product of what I do.”
For Parkman, all the same theories apply when it comes to voir dire, but he would add one more: “The best thing I’ve found,” he says, “is to trust your gut instinct. That’s number one. Earlier in my career I was sometimes coerced into picking people—by other lawyers I was working with or by my client—when my gut told me ‘no,’ and my gut turned out to be right. So that’s a big mistake in my opinion.”
But no matter how they might differ on how they go about it, most lawyers agree that doing jury selection well can make or break a case—no matter what follows in the days, weeks or even months to come. “A lot of experts and really good lawyers say getting a good jury is 50 percent of your case,” Parkman says. “If you can do that, you’re 50 percent ahead.
“Getting a jury you want, getting people on there that you want and feel comfortable with, getting people on there that you think are going to side with you, is extremely important.”
Cassandra Adams is director of the Cumberland Community Mediation Center at Samford University. A process in which a neutral third party helps people resolve disputes without having to go to court, mediation has been around forever—and given the expense, adversarial nature and highly uncertain outcomes of litigation, it’s little suprise the practice is thriving.
“The energy is different,” says Adams, who jokes as the third of six kids in her family, she was born for the role of mediator. “Very different.”
The Cumberland Community Medication Center is the only center of its kind in Alabama offering free, confidential mediation to the community. Adams herself conducts a lot of the mediation sessions, as do attorneys, community members and law students who have completed the mediator practice course and work on a volunteer basis. (Adams emphasizes that because the center serves clients who cannot afford to pay a mediator, it is not in competition with the many private lawyers and others who provide mediation for a fee.)
In practice, advocates of mediation believe it can achieve many of the objectives of litigation and then some. Saving time and money are two of its greatest advantages, but Adams says it goes beyond that: “The parties have the control to get through it and get it over,” she explains. “It’s not natural to live with confusion and be worked up and upset all the time, or at least I don’t believe it is. So to get through a problem and move onto the next thing is very important and productive in and of itself.
“A lot of times people say, ‘Okay, I just want my day in court,’” she continues. “But a lot of times, they just want to to be heard. I’ve been in mediations where just to say, ‘I’m sorry that happened to you, and it was wrong’—bam. Everything opens up. They’re more willing to resolve the issue because they’ve been validated.”
Tom Woodall, a former judge who served as Associate Justice of the Alabama Supreme Court from 2001-13 and as a Jefferson County Circuit Judge from 1996-2001, currently chairs Sirote’s Appellate Practice Group. He agrees that mediation often takes less of a toll on people emotionally because they feel they have more control over the process and play a more active role in deciding the outcome. It may not be the exact outcome they sought, but, one hopes, they can at least reach a satisfactory compromise.
“It’s a way where nobody has to win, and nobody has to lose,” Woodall says, adding that if the parties accept the premise of a compromise—in which concessions are made on both sides—that’s half the battle. And the best predictor of success is simply the fact that both parties have shown up at the table. “When parties have agreed to go to mediation, then you believe they have a good, bona-fide hope that they can resolve the matter. That’s always my assumption when they’ve agreed to go—that in good faith they want to work it out.”
Of course, while mediation may often seem like the kinder, gentler brother to the more adversarial process of litigation, that doesn’t mean it’s tension-free—at its core, after all, there is a dispute that two or more parties have lost hope of resolving on their own. Brian Hayes, a recent graduate from Cumberland Law School, has the unique perspective of having both conducted mediations and also having been a party in mediations prior to attending law school. “Tensions run high in mediations as well,” he says. “Usually both parties will be in the same room prior to a mediation commencing. Sometimes it is like you can cut the air with a knife.” For some, he adds, the absence of a judge, jury, witnesses or spectators can actually be unnerving for the parties in conflict, now forced to face each other without the formal trappings of a courtroom to separate them. “But that sometimes generates some positives. Often this is the first time the two parties have been in the same room since the issue giving rise to the suit happened, and if there is guilt, or empathy, sometimes that comes out and helps. It depends on what skills you use to try and keep focus on the facts and process in order to reach an agreement.”
Hayes says in spite of the training and practice he brings to the process, he often needs to rely on his gut instincts about what’s really happening in the room. “For example, I knew we had a case close to being mediated, but I needed a little push to get it mediated,” he remembers. He sensed that one of the clients, a woman, was uncomfortable at that point discussing the issue with him. He called in a female mentor (in this case, Cassandra Adams) and it made all the difference. “She was the one who knocked it out of the park and helped me to effectively finalize the mediation,” Hayes says. “That is a huge point, knowing you do not know everything, knowing when to ask for help and not being too prideful in doing so and putting the mediation issues first. You realize it is not about you or the other attorneys, but the problems the parties face.”
For Adams, meanwhile, one of the best assets a mediator can bring is his or her own set of personal experiences. “You don’t check your life experience at the door,” she says. “I have never been in a mediation situation where I have not been able to recall and recognize something in someone that helped move them because of that life experience to be able to relate and communicate, whatever it might be. So that’s what’s exciting. If I need to reach in my tool bag and bring out the fact that I’m a mom, or the fact that I’m tall, or whatever it is to relate to help someone open up and speak their truth, that’s what we can do in mediation.”
When Augusta Dowd, shareholder, vice president and managing lawyer of the law firm White, Arnold and Dowd, sits down for her first meeting with a new or prospective client accused of a criminal, white-collar crime, this is the number-one obstacle she has to overcome.
“There is typically a lot of anger, disbelief or dismay,” Dowd explains, “that they have been dragged into something they did not do, are wrongfully being accused of doing, and want to see go away.
“And the most frequent thing you hear is, ‘I didn’t do this, and I can’t believe they’re even accusing me of it. And I need you to fix it.”
In other words, Dowd’s white-collar clients do not fit the stereotypical image of a criminal—least of all in their own eyes. Moreover, they’re used to being in charge. It falls, then, to Dowd inject some reality into the situation. “Some of my clients just want to hear from me, ‘You are not guilty. I believe you, and we’re going to get this taken care of.’ The truth of the matter is, whether I think someone is guilty or not, other than from an emotional value, is not really the point. The point in these cases is whether or not a criminal case can be pieced together that meets the necessary elements of the crime with which they’ve been charged—even if the person did not realize, understand or appreciate the magnitude of what has happened.”
Doug Jones, a former U.S. Attorney and founding partner of Jones & Hawley P.C., has found himself in this conversation with white-collar defendants more times than he can count. “Take the guy who goes out and robs the convenience store—he knows what he did is wrong,” Jones says. “For a white-collar defendant, they may understand they crossed a line, and it might have been unethical, and it might have been a conflict of interest. But they really have no idea that it’s criminal. So a problem white-collar defense lawyers face all the time is sitting down with a client who has never been in trouble before and explaining to them that what they did—under the way the statutes are being interpreted by the federal courts and especially by federal prosecutors—could very easily put them in prison.”
While that’s never an easy conversation, Jones does have the advantage in these situations of having been a prosecutor himself—as an assistant U.S. Attorney from 1980-84 and as a U.S. Attorney from 1997-2001. “I think I’ve been really fortunate,” he says, “to have that level of experience that when I put on my prosecutor hat, people know I’m talking from experience, because they need to understand a prosecutors’ standpoint.” (If Jones didn’t already believe having experience in both realms made him better in both roles, he has it on good authority. On an airplane he once had the good fortune of ending up in the seat next to Supreme Court Justice Sandra Day O’Connor, who commented on the unique combination of roles Jones has played: “‘I have advocated for a long time that criminal defense lawyers and prosecutors should swap jobs every so often and stand in somebody else’s shoes to understand the other side of the coin,’” he remembers her saying.)
Yet as Dowd points out, if getting a defendant to understand the seriousness of the charges is hard, what comes next is hardly easier, because with acceptance comes a level of emotional stress that can be crushing. “Say the client has a spouse or significant other and children,” Dowd says. “This becomes a matter that ends up involving the whole family.”
She says that with all the uncertainty, fear, financial insecurity and other serious issues that come with a criminal-defense case, White, Arnold and Dowd is prepared to bring in additional resources to help the client and family cope. “If the spouse or the children are having a hard time, we will assign another lawyer to them so they can sit in a room and answer the questions such as, ‘Is Mommy going to jail?’ ‘What’s going to happen here?’ ‘Why does Mommy cry all the time?’” Down explains. “As for the individual, the stress on them as this grows typically becomes so great it is very common for us to encourage them to see a pastor, if that is their main source of strength, or to seek professional mental-health counseling. What I say to them is, ‘In your present condition, you aren’t really able to help me prepare the defense of your case. I need you stronger, so I need you to go to someone who will help us get your feet back on the ground. “Because for people who have been this successful, this hits hard as anything in the world. Yes, it’s about money in that it’s an expensive process, but it’s also about everything that this person has built their life building toward—career, standing in the community, the church, the family, and quite possibly their liberty.”
Most of us think of people in the law profession as type-A personalities and hard-driving professionals—descriptions rightly or wrongly (and mostly rightly) considered necessary for the job. After all, there is cutthroat competition for jobs among those fresh out of law school, and it continues well into the first decade of practice for a young lawyer trying to prove his or her mettle. As attorneys become more established, some stressors might ease just as others ramp up—they’re taking leading roles with more and more responsibility for the outcomes of cases and the fate of their clients while working to build the reputation and prestige of their firm, and on and on.
But even type-A personalities are human. And while most budding and established attorneys alike come through even the biggest challenges intact, for many others, the stressors take a dangerous toll, with a higher-than-average rate of substance-abuse and mental-health issues.
“Attorneys experience problematic drinking that is hazardous, harmful, or otherwise generally consistent with alcohol use disorders at a rate much higher than other populations,” according to a study published in the Feb. 2016 Journal of Addictive Medicine. “…Depression, anxiety, and stress are also significant problems for this population.”
None of this surprises Robert Thornhill, director of the Alabama Lawyer Assistance Program (ALAP) for the Alabama State Bar. “While I’m generalizing, it’s true that most attorneys are very ambitious, perfectionistic, and tend to be self reliant,” he says. “Those are wonderful attributes. They’re actually necessary to be successful in any profession—I think certainly in the legal field. But unfortunately those character traits are not conducive to recognizing that you may have a problem. I’ve known quite a number of attorneys who soldier on with tremendous effort and will power for years with undiagnosed and untreated depression.”
By the same token, he adds, while many develop healthy coping mechanisms for the stressors of the profession—which usually begin in law school—others turn to drinking, using drugs, gambling or eating disorders. If so, “Over time,” Thornhill says, “it’s likely you’re going to develop a diagnosable mental-health issue or substance-abuse problem.”
The Alabama Lawyer Assistance Program’s stated purpose is to provide “immediate and continuing help to lawyers, judges and law students who suffer from addictions and other types of mental health disorders.” Thornhill says ALAP encourages lawyers who have struggled with similar mental-health or substance abuse problems (many of whom serve on the ALAP committee) to reach out and offer help to other lawyers who are suffering.
“There is an advantage to hearing from someone who has been down that same path and found a way out,” he says, estimating that around 30 attorneys around the state volunteer with ALAP. “We can relate to the struggles of active addiction or untreated depression, and we can also be a living demonstration of the fact that there is this thing called recovery.”
If a lawyer confronted with a problem is open to getting help, ALAP offers referrals for evaluation, treatment, monitoring and mentoring programs. “The studies have shown,” he says, “that among attorneys—as well as physicians and other professions—that when you incorporate really good treatment followed up by long-term accountability, the rates of long-term success and recovery are quite high, much higher than the general population. And we have many, many success stories.”