Reversal On Client Security Fund; What's Next?

I am, of course, relieved to see that the Legislature and Governor M. Jodi Rell have decided not to seize the Client Security Fund. Theft of funds held in trust is wrong, even when the government does it. Score a victory for the rule of law, but hold tight to your wallet. We lawyers will pay for stamping our feet in protest.

Connecticut is like most other states: broke and reeling. Revenue is needed, and fast. So the state is looking everywhere. It wants concessions from public employees, reduction in services and more money. It would take a magician to do all this while keeping voters happen. How will this magic be performed?

Politics is like a jury trial: It is all about the energy. How do you form a group of disparate individuals into a group acting with one will? Let me reveal some trade secrets learned in a courtroom, and then I will apply them to politics.

A successful trial requires a successful narrative, a story line that makes people want to act. A good lawyer wants something specific, money, a not guilty verdict, fault found on one side of the aisle. But if jurors are to be motivated to do more than act as tiles on an existential abacus they must care about what they are doing.

Hence, every trial is a search for a hero. And if there are no heros, then there must be a villain. Some character must be found in the drama unfolding in the courtroom that impels a jury to act. If they will not love my client, they must, at the very least, harbor deep misgivings about my adversary.

Of course, life is most often nothing like a vast epic. The mass of men may not lead lives of quiet desperation, but, truth be told, most of the time most of us press against a sense of quotidian indifference. Woody Allen once put it well: "Nine tenths of life is just showing up," he said.

Jurors must be motivated to act to take stands. They are motivated to do so when they can identify the good, or discern evil, or, in the alternative, find a comfortable role tucked within the narrative space created by some archtype. Give me a wicked stepmother and my work is half done. Trial is about facts, but only partially so: The real work at trial is bending the facts to fit a narrative drive that runs in the direction you want to go.

It really is that simple.

And so is politics, only more so. A politician need not worry about such things as relevance or materiality. No judge dispassionately sits atop the political heap raining cold, cold water on any spark of passion that dares flame in the mausoleum. Politicians get to gargle with lava.
But they still need to motivate folks to act. So they, too, create narratives.

Here is the narrative I fear in the wake of the Governor’s reversal on the Client Security Fund.

"Friends," she will say," times are tough and we all need to roll up our sleeves and work hard to dig out of this mess. I’ve looked everywhere I can for extra money in the state budge. I even asked lawyers to pitch in and help. But they stood on a technicality, insisting the murderer go free because someone had not read him his rights. As a result, killing debt is still on the loose.

"I cannot find more money in the budget. The well is dry. So I am asking the fortunate among us to do more. I am even going to ask lawyers to put aside their interests in favor of the public good. I propose a one-time tax on any lawyer earning more than the median income for a family of four. I am confident they will agree to pay it. Theirs is, after all, a service profession. In this time of need, I am asking them to serve someone other than themselves. I am confident they will not oppose such a proposal as it is fair and just."

Let’s see if I am right.

Reprinted courtesy of the Connecticut Law Tribune.


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