• September 8, 2014
Clarence Darrow

“Clarence S Darrow” by Historical and Public Figures: A General Portrait File to the 1920s – http://digitalgallery.nypl.org/nypldigital/id?1220202. Licensed under Public domain via Wikimedia Commons.

Some months ago, I had occasion to participate in a post-play discussion with U.S. District Court Judge Donavan W. Frank (D. Minn.) following a performance of “Naked Darrow” at the Illusion Theatre in Minneapolis.  The play was provocative and focused on Darrow’s human imperfections more than his courtroom triumphs.  Nonetheless the courtroom drama was also on display at times, and several instances got me thinking more about “America’s greatest trial lawyer”.  I wondered, could Darrow still be Darrow today?

During the post-play discussion, an audience member asked whether many of the arguments that Darrow used didn’t amount to a kind of “jury nullification” argument that would be precluded today.  Although I didn’t think of the arguments as outright “jury nullification” techniques, I took the questioner’s point.   Darrow’s style could indeed be severely cramped by today’s courtroom management philosophy.  Today’s style of litigation and courtroom management favors tight control of all aspects of litigation by the judge.  It restricts the zone of discretion permitted to the lawyer.

In his most high profile cases, Darrow often attempted to elevate the issues of the cases to their larger societal context.  He would invite the jury, or judge, to decide the case based upon that context.  He worked to overcome a sterile focus on the facts of the particular case so that the case would not be isolated from the world around it.  This approach is probably what the questioner had in mind by referencing a “jury nullification” argument.  Darrow’s approach of arguing larger themes bordered on being a variant of the “send a message” argument.  These types of argument may very well lead to reversible error in the eyes of many appellate courts today.

Darrow also was known to use an argument form that came pretty close to inviting the jury to put itself in the position of the defendant.   A case in point is the Dr. Ossian Sweet prosecution and trial.  In that case, Darrow defended a black physician and his family and friends, who were tried as a group for murder because they staged an armed defense of a white mob seeking to force Dr. Sweet’s family to abandon their newly purchased home in a white neighborhood. Darrow invited the all-white jurors to consider whether a white family would have ever been charged with such a crime for similarly defending their home from a large, angry black mob in a black neighborhood.  This technique comes close to one we sometimes call “the golden rule” argument—asking jurors to put themselves in the place of the litigant.  For many years the “golden rule” type argument has been condemned in court decisions that have concluded that the technique poses the wrong issue for the jury, and improperly tries to invoke juror sympathy.  The “golden rule” argument is now often considered to be a basis for overturn a favorable verdict.

These types of jury arguments can be very effective.  Indeed, for Darrow they led to surprising results for his unpopular clients and causes.  He successfully challenged jurors to view the issues of a case from a larger perspective and not simply from their own personal life experience.   Without the ability to make such arguments, could he have achieved the miraculous results he did for such unpopular clients and causes?

Judge Frank observed that one of Darrow’s most famous courtroom tactics was one that would be unlikely to pass muster today.  That was Darrow’s surprise cross examination of his opposing lawyer, William Jennings Bryan, in the Scopes trial (a/k/a, “the Monkey Trial”).  No doubt such a tactic would be seen as a cheap stunt today by most judges, and considered to be beyond the realm of acceptable trial practice.

Another characteristic of Darrow’s successful advocacy was his insightful use of jury selection to address the sensitive issues of racial and other types of prejudice.  After he picked the jury in the Dr. Ossian Sweet trial and before the presentation of evidence, he was reported to have loudly pronounced in open court his “usual mantra”: “The case is won or lost now.  The rest is window dressing”.

This is not altogether surprising, since the selection of the jury can be the most critical determinant of an outcome at trial. Today in most federal courts, the lawyer is not even allowed to ask a single question of prospective jurors.   If we are willing to admit that Darrow was something of an expert on the way our jury system works, then refusing a lawyer the opportunity to conduct appropriate voir dire raises a serious question.  If we accept Darrow’s premise about the importance of jury selection, then logic suggests that limiting voir dire in such a way would reduce such a jury trial to a kind of window dressing.

These considerations may all pale in significance to the fact that it is exceptionally difficult to get civil jury trial experience today.  But putting the rarity of the civil jury trial aside, could Clarence Darrow, if he were alive and practicing today, come close to the same level of courtroom success under the constraints that now apply routinely to lawyers in the courtroom?  I must confess to be somewhat doubtful about that, in spite of Darrow’s brilliance.

One reason that Darrow’s legacy is so idolized by today’s trial lawyer may be precisely because he was able to practice in a way that trial lawyers can now only wish for in their dreams. His was a bygone era that, for today’s trial lawyer, may well have represented the peak experience of American courtroom advocacy.

By Michael W. Unger

Mr. Unger, of Unger Law Office in Minneapolis, is a certified civil trial specialist who represents plaintiffs in personal injury, wrongful death and medical malpractice cases.

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