Kwan bul: empathic argument
Jeremy Daw (Kwan Bul)
For me, this course was, above all, a lesson in empathic argument. After arguing what I believed to have been an unshakeable case in the court of public opinion (and losing), I have come to realize that I have much more to learn.
Stating the Case
After reviewing the transcript of the jury in deliberation, it seems clear that our jury did not understand the distinction between a regular court and the court of public opinion. In retrospect, Iâm not sure if I understand the difference either. It was a very interesting exercise to simulate a trial in a regular court online, but the exercise begs the question of what exactly we were trying to accomplish. I know that my aim was to vindicate Paul Addis of a very negative depiction in the mainstream media, which seemed to fail to grasp the purpose or spirit of Burning Man. I believe Kenâs aim was to try to shut down my argument and convince the Second Life community that Addisâs actions were nothing more than run-of-the-mill criminal activities. Why was he more successful than I was?
The first thought that comes to mind is that Ken prevailed in the framing of the virtual space. He certainly had the advantage to begin with: the Berkman courtroom is a convincing facsimile of a brick-and-mortar trial court, almost all of the virtual interactions were similar to those in a real court (or at least, resembled the fictional trials depicted on television), and the judgeâs instructions to the jury were taken word-for-word from an actual legal definition. So even though I argued in my opening that the Addis âtrialâ was not like the kinds of trials the jurors were familiar with, I failed to deliver that promise, instead playing along with all the rules of a regular court. I realize now that the best defense of an iconoclast like Paul Addis, within the court of public opinion, would necessarily mean exposing the same kinds of weaknesses and hypocrisies of the modern court system as Addis was trying to expose in the Burning Man organization. The metaphor seems obvious to me now: both are institutions which have outgrown themselves and no longer serve the purpose for which they were originally intended. Both have become, in the process, mockeries of themselves. A forum such as Second Life would be an ideal place to show that.
What is the Court of Public Opinion?
My main mistake was not first getting a good idea of what the Court of Public Opinion really is. In reality, it bears little resemblance to a trial court. Trial courts appeal to reason and logic, and try to raise themselves above the whims of knee-jerk responses and prejudices. They are nominally public but seldom well-attended. They hold great sway over the lives of the few individuals who are compelled to appear in them, but do not often concern or affect the public at large.
The Court of Public Opinion is very different. It is de-centralized, and operates loosely across countless nodes. While the Supreme Court might resemble a proprietary software company, handing down codes which dictatorially determine how citizens may operate within the systems to which they are subject, the Court of Public Opinion is much more like the open source model. Like the community of Linux programmers or Wikipedia authors, this Court may have some members (nodes) who exert more influence than others, whether because of their specialized knowledge, or placements in the network, or reputations; but ultimately all decisions are subject to the review and approval of the broader network.
The Court of Public Opinion convenes in newspapers, magazines, blogs, television programs of all kinds, stumps and soap boxes, bustling city squares, on billboards and print ads and across kitchen tables. Churches and political organizations can have as much influence as corporations. While previously, the large media organizations reigned supreme influence, now the advent of the internet has begun to democratize public opinion in a way which still has not been fully realized.
It is a popular fiction among law schools and judgeâs chambers that the trial courts and courts of appeals operate independently of the Court of Public Opinion. But this is only a fiction. If the Brown v. Board of Education court were right, and âseparate⦠[is] inherently unequal,â there would have been no reason for school segregation or Jim Crow laws to persist for even a day after the passage of the Fourteenth Amendment. Are we to believe that the Supreme Court had been mistaken on such a fundamental issue from 1868 until 1954, when the light of truth finally shone on Washington?
No. Rather, we must understand the influence of the Court of Public Opinion, which was not ready to tolerate integrated public schools in the immediate decades following the Civil War. Quite simply, the Supreme Court could not have acted to integrate schools before public opinion was ready to accept it. After all, the courts have no army at their command. They have no police to enforce their rulings, if the administrative branches of government (which are directly answerable to voters) choose not to comply with them. Indeed, the only tool in the arsenal of the courts is credibility; and all illusion of credibility is dispelled if the courts are too far ahead or too far behind the opinion of the public.
The recent clashes between trial courts and the court of public opinion, most potently exemplified by cases involving the RIAA and MPAA, illustrate the strengths of each. Trial courts have great authority over individuals but are limited in their ability to exert control over large groups. This distinction is most visible when an individual subject to the courtâs judgment comes to exemplify an issue which affects an entire group, such as the woman who recently received a judgment in excess of $200,000 for violating copyrights held by members of the RIAA. Such judgments are accepted, for now. But even though the law of the land is on their side, even now the RIAA must act cautiously when asserting their rights. There can be only a limited number of examples of sympathetic citizens being fined huge amounts of money for seemingly âharmlessâ activity. When too many such cases appear, the matter can become subject to the court of public opinion; and a loss in that court can mean rapid and meaningful change.
In Lawrence v. Texas, for example, two adults convicted of sodomy for getting caught having sex in private became the poster children for an unjust law. Because Lawrence represented an issue which could potentially affect a large number of people, popular support swelled against the law. The judgment of the Court of Public Opinion undoubtedly had an effect on the judgment of the Supreme Court which struck down the anti-sodomy law on constitutional grounds. The Court probably would not have done so a hundred years ago, even though no relevant provision in the Constitution has changed during that time. What has changed is the holding of the Court of Public Opinion.
Lessons Learned
I began to internalize this lesson with my pre-trial motion to the Court, but I failed to capitalize on it. Most importantly, my reasons and justification for the motion of removal were never seen or adequately explained to the jury. If my intuition is correct, the judge of the Court of Public Opinion matters little compared to the jury. Therefore, my duty, in retrospect, was to make the point to them, and not only to the Court.
There are many ways I could have attempted this. For one, I could have attempted to introduce my motion for removal to the jury. Even if my attempt to introduce the motion had been unsuccessful, the argument itself could still have shown to the jury that my position (and Addisâ position as well) was that any semblance of an actual court was inappropriate, offensive, and unjust. Of course, the judge might just have dismissed the motion and quashed all argument for sake of time. In that case, at least I could have shown myself to be anti-establishment, and losing. That might have generated sympathy among the burners of the jury.
Alternatively, I could have made the argument (through objections and motions) that the rules normally governing a brick and mortar court did not apply in the Addis mock trial. The opening and closing, every objection, even every question in direct and cross, was a missed opportunity to make the point. I am reminded of the student in Rebeccaâs Extension School class who, when asked, âIs this real?â, made his answer by flying into the air and crashing back to the ground, all virtually. I think, in essence, his answer was a temporary dissolution of the willing suspension of disbelief which every player of a video game (or perhaps, even every user of the internet) brings to the activity. To that end, our mock trial was, admittedly, not an extremely convincing facsimile of a courtroom trial; but perhaps it was convincing enough to allow the jury to indulge in the suspension of disbelief. I was all too willing an actor in that charade. I failed to take advantage of the richness of the code of the Second Life program, and played my performance too much like real life. I realize now that doing so was playing right into the hands of the prosecution.
Perhaps my greatest missed opportunity was in the instructions given to the jury. I must admit that I was taken by surprise. Once the judge had given the definition of malice, I realized that I had failed to set the terms of the argument in a way favorable to Addis. The legal definition of âmaliceâ was totally contrary to the argument I was trying to make, and set a most unfavorable tone. Even if I had failed to persuade the judge to use a different set of jury instructions, I still should have argued the point. To do so would have at least planted the seed in the minds of the jury that there was more than one way to determine guilt.
Ideally, I would have successfully argued for an instruction like this:
This is a trial in the Court of Public Opinion. Accordingly, you as jurors have the responsibility of deciding how the actions of the defendant have merited either the approval or disapproval of the thoughtful public at large. Should you determine that the defendant has acted ignominiously, your duty is to recommend that he be cast out of reputable society to join the likes of Michael Jackson and Britney Spears. If, however, you should determine that the defendant has acted honorably, your duty is to hold him up as a model member, or at the very least, a reasonable member of the broader public. In coming to your conclusion, you are permitted to consider the motivations of the defendant which served as the impetus for his actions, and to take into account how effective those actions proved to be.
By that standard, I have little doubt that Addis would have been vindicated, especially if I had effectively connected all of his actions to those instructions at all points of the trial: introducing the test in the opening, referring to it constantly in the direct- and cross-examinations, and finishing strongly in the closing statement. To do so would have much more closely related every moment of the trial to the ultimate question, which would have been more engaging for the jury and served as a series of signposts for them to connect the facts to the true meaning of the Court of Public Opinion. As it was, the jury didnât even see that there was any controversy over their duty, and that, I believe, led them to interpret the action strictly.
Trials as Theater
Ultimately, I failed because I allowed my case to become boring. As such, I lost the attention of the jury. If I cannot keep a group of nine avatars engaged, how can I hope to prevail in the court of public opinion?
Before I began law school, I got the chance to watch some truly masterful courtroom lawyers at work. We represented a client who, right in the middle of the storm of corporate scandals in the early 2000s, had been caught with his hand in the cookie jar. The facts of the case were against us, and the tide of public opinion was decidedly not in our favor.
In the end, we prevailed on both fronts. The jury returned a verdict of âNot Guiltyâ on all nine counts, and within weeks Mark Belnick, General Counsel of Tyco, had become a darling of the press â one of only a handful of accused corporate criminals to clear his name. How did we do it?
My mentor, Bob Katzberg, a criminal defense attorney with decades of experience, confided in me before the trial began: âIf you want to win at this game, you have to understand that what weâre really doing here, is theater.â At the time, I only partly grasped his point. I could see how all of the lawyers for the defense spent a great deal of time making sure that their appearances were fit for the cameras. I watched Bob deal deftly with all the reporters in the courtroom during the pre-trial motions. But it wasnât until the trial began that I really began to see what Bob was talking about.
The New York County District Attorney had selected some of his best prosecutors to bring this case. They had a strong fact pattern and a solid theory of the case. They had laboriously strung together the evidence to make a case which was logically sound beyond a reasonable doubt. Because I had spent many months gathering the evidence myself, and because I had already begun to think like a lawyer, I could tell that logically and rationally, their case had the upper hand. I thought we were sunk.
But then I started watching the jury. Soon it became clear that they didnât really âget it.â Itâs not that they werenât intelligent people. On the contrary. Assistant District Attorney John Moscow had worked hard to get a jury filled with thoughtful people: a scientist, a law student, a businessman. And so on. But when the facts of the case began to come out in testimony, I could tell that the attention of the jury was spotty at best. In retrospect, this makes sense. Most people can barely sustain their attention span when at work; how are they to remain engaged during a trial which lasts twelve weeks? Especially for a trial like this one, which depended greatly on nuances of corporate agency, control, and state of mind. It was simply too much to keep track of.
Instead, I noticed after a while that the attention of the jury seemed to rest mostly on the lawyers. This is how we won the case. The prosecutors, Moscow especially, had a tendency to become very animated â even angry â when the judge ruled against them. By contrast, every lawyer for the defense remained calm and confident â almost aloof â throughout the entire trial. Even though the judge ruled against us many times, Iâm not sure if the jury ever noticed. If one were to only watch the lawyers, it would appear that the defense was trouncing the prosecution, even though I knew, as a factual matter, that such was not the case. The clincher came when Belnick himself came to the stand and was subjected to two days of cross-examination by Moscow. Belnick, a lawyer himself, remained much cooler and more collected than Moscow, almost as if the roles were reversed: Moscow looked like it was his life on the line, not Belnickâs. The longer it went on, the angrier Moscow became.
I also believe that the jury simply became exhausted. Of the twelve weeks which the trial spanned, eleven of them were devoted to proving the prosecutionâs case. They had an intricate case which required calling many witnesses, and took a long time. Our strategy was different. Our lawyers very wisely petitioned the judge to allow us to treat our cross-examinations of the prosecutionâs witnesses as direct examinations, since we were calling many of the same people to make our case. Thus we were able to create the illusion that our case in chief took only two days to present. Indeed, the prosecutionâs cross of our main witness, Mark Belnick, took almost twice as long as all of our direct examinations put together. We knew that John Moscow was chomping at the bit to cross-examine Belnick, and indeed he took the bait. Disastrously for him, this meant that he looked responsible for detaining an already weary jury for even longer than necessary, when by all appearances Belnick looked unruffled by the whole ordeal.
The end result of all of this was that the defense appeared to have the stronger case, even though as a matter of law we did not. This, I now understand, is the truth behind Katzbergâs lesson of the importance of theater, and the connection between a trial court and the court of public opinion. Whereas in a trial court, the truth is determinative, in the court of public opinion, only appearance matters. In the Addis trial, I understood this lesson in the back of my mind, but I failed to execute it effectively. I played the part of a trial lawyer and reinforced the appearance that the jurors were participating in a legalistic exercise, when in fact their duty was something much more basic. Ultimately, I believe the lesson of this course is to help us understand the difference between fact and appearance, and which is more important.
