The 'Everlasting O.J. Syndrome'

To paraphrase an old adage, "Shaft us once and it's your fault. But shaft us twice and it's our fault."

O. J. Simpson was arrested five days after the murders of Nicole Simpson and Ronald Goldman on Sunday, June 12, 1994. Probably no other event in recent American history revealed so much about the indecent behavior of some of those whom we once trusted to implement our legal and judicial system.

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But we believe that we the people – including lawyers as well as present and future potential jurors – have learned some lessons as we now approach the seventh anniversary of this bloodstain on our national blotter.

The criminal justice system

We don't want to minimize in any way the terrible toll on the many victims of the O.J. Simpson murder case. However, the murders unexpectedly opened our eyes, sensitized our ears and lifted our antennae to some trial lawyers' outrageous behavior, manipulation and abuse of the criminal justice system. A few trial lawyers benefited while society paid the bill in more than one way.

Juries aren't falling for these shenanigans so much any more. In high profile cases where the evidence is certain and beyond a reasonable doubt the public and their jurors are not afraid to convict. In other words – "if the DNA, gun and gloves fit, the juries won't acquit."

A few examples:

• The Menendez brothers murder case in Los Angeles. Leslie Abramson tricked the jury in the first trial – but not the second!

• The World Trade Center and Oklahoma City bombing cases.

• Conviction of four terrorist bombers in New York City just last week for acts committed outside the states!

• The "innocent by reason of insanity," defense often fails. In murder cases, juries are now hesitant to buy in on this overused and abused ploy.

With only a few exceptions, the hired big legal-defense guns don't get away with murder any more. In fact, sometimes people become suspicious when they ride into town!

Are there any statistics that support our instincts? Yes – but we would be the first to agree that because there are many variables plus thousands of tables and graphs you can interpret statistics in many ways.

The Washington State Institute for Public Policy in January 1999 compared the long-term trends in death by homicide – in Washington State and the United States.

• The murder rate has declined in both. In 1998, the state's murder rate was 35 percent below the 1994 rate. The national rate fell 30 percent during the same period.

• While total felony crime and arrest rates in Washington have declined since 1990, the rates of felony prosecutions and felony convictions has increased. From 1990 to 1997 the felony conviction rate per 1,000 people has increased 13.7 percent.

We suggest that it was the "outrageous" behavior of the defense lawyers plus the entire legal spectacle that woke up the public. The attorneys behaved so badly that a member of the legal team, Los Angeles defense attorney Robert Shapiro, eventually distanced himself from the rest. And most people now recognize that Johnnie Cochran unfairly played the race-bait card.

Then there were the tactics of Barry Scheck who has made a living freeing the accused and convicted when the DNA did not match – but then suddenly argued that when the DNA matched, it didn't count? Scheck pulled off the greatest crouching chameleon – hidden hypocrisy – act of all time. To Scheck making profit on DNA to free is fine – but when it matches have no despair – Barry will clear the air!

No doubt this was clever lawyering. But it was also morally offensive and shameful.

The civil (tort) justice system

Likewise, thus alerted, citizens have become more critical and suspicious of frivolous and abusive lawsuits filed in the civil (tort) justice system. They know that these suits have slowly and relentlessly poisoned their lives and lifestyles.

We all lose – except for the trial lawyers. Business Week reports that this "assembly line tort litigation" eats up about two percent of gross domestic product – about $170 billion.

The "lawsuit tax" for every Californian is estimated at $1,500-1,800 per year.

The good news is that the total number of civil lawsuits filed nationally is down by two-thirds. This means many fewer people are being sucked into assembly-line litigation by being abusively sued. This reduction in caseload by two-thirds is a tremendous benefit to society in terms of time and money saved.

California bright spots – even in the absence of bright bulbs

• According to the California Judicial Council the total filings of personal injury cases in 1989-1990 was 122,033. In 1998-1999, the number was down to 69,666 – a 43 percent reduction in a single decade.

• Statistics from Jury Verdict Research, from 1995 to 1999, reveal that while the national average for compensatory damages has increased by 54 percent, California compensatory damages have fallen by 19 percent.

• The prestigious Orange County Business Journal on April 9, 2001, noted, "The number of lawsuits in Orange County has dropped 50 percent over the last decade... Members of the OC legal community attribute the drop to several factors, including what both plaintiff and defendant lawyers cite as a general public perception that there are too many lawsuits."

• The San Francisco Reader, June 13, 2000, headline blared, "Juries Getting Smarter and Stingier"

• A headline from the Wall Street Journal on October 4, 2000 noted, "Trial Lawyers Are Losing Their Clout in Sacramento." The article goes on, "Over the past year, the trial lawyers and their political arm, the consumer Attorneys of California have suffered an unprecedented run of defeats. Whether the issue has been to boost malpractice awards, eliminate binding arbitration clauses or to allow for the filing of 'bad faith' lawsuits, the trial lawyers have been stopped cold at the ballot box ... "

"We're seeing anti-litigation tort reform efforts take hold," said Mark Robinson, immediate past president of the Sacramento-based consumer Attorneys of California. "These efforts have included a lot of public relations in the form of op-ed pieces in the major newspapers as well as radio talk shows."

Jury duty now seen as a civic duty by many

It used to be a national past time for citizens to try to get out of jury duty. "Who would want to be judged by 12 people not smart enough to get out of jury duty?" went the old wisdom. Now people want to serve. They want to avoid repeat bad decisions! We spoke with jurors who told us they were gratified that they served – and other prospective jurors who were disappointed when not selected.

Maryann Maloney, Executive Director of Orange County Citizens Against Law Suit Abuse (OCCALA), recently held a press conference on the steps of the Santa Ana Courthouse honoring jurors. Attended by state representatives, senators, judges and county officials, their message was that if you want good decisions you must take jury duty seriously and serve.

A grass-roots organization – Citizens Against Law Suit Abuse (CALA) – is active in 22 states – and has six chapters and 30,000 supporters in California. Its purpose is to educate the public on how frivolous lawsuits impact everyone every day – at home or away! There are organized efforts to promote civil justice reform in every state. Maloney states emphatically, "If you don't like frivolous lawsuits siphoning off your hard-earned money – then serve on a jury."

Maloney also notes, "There has been an increase in the use of alternate dispute resolution methods – such as mediation and arbitration – which studies show dramatically reduce costs and time to final settlement."

Hope for the future – yes!

Embarrassed by some of their trial lawyer brethren in the O.J. Trial, many concerned and conscientious attorneys have worked hard to come up with solutions that better serve society. We salute them for their courage, integrity and vision. Lets hope they continue to press for full-court reforms in both the Criminal and Civil Justice Systems.

Lest we give any credit for this to O.J. – the irony is that the resulting legal fiasco and eventual verdict in the Simpson Case has had an everlasting effect on the heart and conscience of the nation – as well as the criminal and civil justice systems. Let's hope all of us, as prospective jurors, won't be fooled so easily in the future. Call it the "EVERLASTING O. J. SYNDROME"!

The path to legal sense and sensibility is now better defined than before the O.J. Trial. Our baby steps are moving in the right direction. But, we still have far to go before we soundly sleep.