What are these things that live among us?
That make their homes in the dust of dust. . .
And hide within the mirror’s gloss,
And between the patterns of a snowflake’s frost.
Who are these things who live among us?
Those five lines were scribbled, in oddly familiar handwriting, on the end paper of my Trial Advocacy textbook, circa 1981. It’s funny how one’s handwriting changes over the years. Some might contend that it matures in expression to follow its architect. Others will argue that handwriting is a mere tool, having no inherent quality.
I pause momentarily to deconstruct the indulgency of my attempt at poetic hieroglyphics, before hurling the book through the attic floor into the large cardboard box below, marked “donations” at the foot of the drop-down ladder. Surely, I wrote the stanza as a diversion during a particularly dull lecture about voir dire, the process by which a jury is “interviewed” and selected. Alternatively, perhaps I was subconsciously listening to the voir dire, and postulated whether jurors were influenced by subtle, near-invisible factors, coexistent with identity . . . something on an atomic level, like quarks. . .or maybe just cultural quirks.
Was I projecting my own geographic sensibilities upon the equation? As a native South Jerseyan, attending law school in Atlanta, might a southerner rightly find a Philly cheesesteak resting comfortably on the barcalounger of my mind’s home theater? Does human decision-making reside in neuroscience, like some invisible Mr. Potato Head dust mite trying on different ears and eyeglasses? Where does the corpuscle of nature end and where does the culture of nurture begin?
Now, almost thirty years later, as a practicing attorney, I find that I am still wondering about the building blocks of persuasion. Why do some arguments persuade some people, yet utterly fail to resonate with others? Is there an unseen locomotion which motors the hand of the juror to accept one side of a dispute, while rejecting the opposing side? Put another way, does the signature of the individual mature to reflect that person’s life experience or does the learned task of scrivening the signature dictate the disposition of its author? Does the dog wag the tail or vice-versa? If literary theory is instructive, civilizations process information through a primordial image which resides in a culture’s collective imagination.
That archetype can be illustrated by comparing American with Russian culture. It is axiomatic that Americans place a very high value upon individual freedoms. Indeed, the rights of the individual in American society are mirrored in the English language. In America, a judge would say: “Members of the jury, you are here to decide Zachary’s case.” In contrast, in Soviet Russia, a judge would say: “Members of the jury, you are here to decide the case of Zachary’s.” In the Russian language, the possessor always follows the object it possesses whereas in English, the reverse is true.
It is no surprise that the sensibility of a Russian-speaking native thinks about the individual in a way which subordinates the individual to the collective whole. In other words, the way in which a Russian expresses thoughts happens to be the same way that the political structure operates. In America, what is important is that an individual, Zachary, has a case. In the Russian example of the same sentence, the emphasis is on the case (the object) as opposed to the individual (the subject). In fact, the syntactic positioning in Russian is object–verb–subject, exactly opposite of the English order. Is it any wonder that the concept of the anti-hero was embodied in Notes from the Underground, the work of a Russian novelist?
Eastern cultures tend to elevate the importance of the family group over that of the individual. Some European and Eastern cultures may be more inclined to obey authority figures. As Americans, proud home to the melting pot of ethnicity, we eschew the practice of stereotyping. Arguably, that Western trait is too a cultural stereotype.
Our juries in America are a wonderfully diverse population of citizens. The jury selection process allows lawyers to excuse potential jurors and accept others, in an effort to assemble an impartial panel of jurors. In New Jersey, lawyers are allowed to exercise a limited number of “peremptory challenges” to excuse a particular juror from the panel. The lawyer need not explain why he/she has excused the juror. Occasionally, a juror’s selection may be challenged “for cause.” For example, a juror may admit to having been poisoned by the insurance industry’s wrong-headed (but well-funded and often effective) anti-lawsuit propaganda. The trial judge should dismiss that juror, even if neither lawyer seeks to do so by use of a challenge for cause. The most daunting task for attorneys representing accident victims is to deal with the anti-justice effects of insurance industry and Chamber of Commerce advertising. Some jurors have long forgotten that the civil justice system, awarding money to compensate for injury, is founded upon the Old and New Testaments. In my summations, I try to journey with jurors back to those American roots.
I think of each juror as a pillar, supporting the weight of a great monument, like the Lincoln Memorial. Atop that collection of columns rests the roof, a collective consciousness, constructed by the group. The positions I posit, if successfully argued at trial, will create a natural platform, whose dimensions accord with the archetypal structure. My goal is to identify the collective psychological concerns of the jury which spring from the legal dilemmas posed by the lawsuit.
The theme of the trial should harness symbolic narratives which express those concerns. To do otherwise is to disregard the elementary, cultural components which we all inherit from our writing, speaking and ultimately thinking environments. As for whether my five-liner was the product of an enlightened daydream or merely abject boredom, I shall respectfully leave that anonymous decision to whomever happens to retrieve it from the donation box. For now, that cheesesteak in my mind’s home theater beckons . . . so I must exercise a peremptory challenge to the author of this article.
About the Author
Bruce H. Zamost is an attorney with the law firm of Pellettieri, Rabstein & Altman concentrating in the fields of personal injury and accident and medical malpractice law.