Seidemann: Lead or face the consequences

By David Seidemann

Issue of January 8 2010/ 22 Tevet 5770

One of the first things we are taught as trial attorneys is the need to address the weaknesses of your client’s case in your opening statement. A recent survey indicated that 80 percent of juries — at least in civil cases — make up their minds as to the ultimate outcome of the case during the opening statements. They judge not only the client; not only the merits of the client’s case; but the integrity of the attorney as well.

If the attorney is not believable, if he is seen as a snake oil salesman, the chances of success diminish astronomically. While it is important to stress the strength of your client’s case and indeed to begin your argument with those strengths, by acknowledging the weakness of your client’s case at the outset you not only take the wind out of your adversary’s sails, but you establish your own credibility. Begin with the strengths, acknowledge the weaknesses, and conclude with why the strengths of your case should lead the jury to conclude in your client’s favor.

Imagine a discussion one day between two parts of a body — the head and the arm — regarding an infection that afflicts the foot. The head decides to not get involved since the infection is on the opposite end of the body. However, the arm realizes that the head ought to know better, that unless the head becomes involved, then not only will the foot be in peril, but the entire body including the head and the arm will suffer.

Should the head continue to mind it’s own business, its credibility would be called into question. Moreover, the head would be deemed complicit in the status of the foot. Even if the head believes itself not to be involved with the foot, all other body parts would believe differently, at least until proven otherwise.

This is true not only in this somewhat trite analogy, not only in the courtroom, but also in most if not all walks of life. From sporting events, to office politics, to synagogue politics, to the world political stage - if one segment of the population, especially the head that ought to know better - either remains silent or insists on backing the wrong horse, its credibility is lost.

While those perceived leaders might not care about how they are perceived by the public, their actions (or inaction) often make it more difficult for those who must operate in the public forum. For instance, if so-called moderate Muslims do not denounce, renounce and actively fight extremism, they really can’t complain when others are skeptical about rejecting “profiling.”

When so-called moderate Arab states do not denounce, renounce and actively pick up arms against those of their own that seek Israel’s destruction, they really can’t complain when Israel is forced to adopt across the board policies that insure or at least enhance her survival.

When the head does not dictate, it will be treated as the rest of the body, and really has no one to blame but itself.

Moderate Arabs, moderate Muslims, moderates of any classification suffer when the heads of the entire body refuse to acknowledge the weakness of their position or the skeletons in their collective closets. This phenomenon is not reserved for any one class or set, and to read these words and not to understand how it applies to our own community and our own people is simple mindlessness.

From time to time Jewish institutions and publications, this one included, are taken to task for dealing with subjects that some of our “heads” wished would not have been dealt with. Topics that are uncomfortable; “heads” or leaders who have been exposed as either being corrupt or of having backed other leaders who are corrupt; have led to derisive attacks or calls for bans.

Such leaders, if indeed they can be termed as such when they continue to turn a blind eye, might not care how they are perceived by the masses. To be sure, we have witnessed many falls from grace. We have seen the perpetrator’s professional demise as well as the continued erosion of the reverence we once held for certain leaders when they continue to fail to address the “weakness of the case.”

But the greatest injustice is the added difficulty we, who operate in both the religious and secular world, now must deal with in order to dispel the notion that Orthodox Jews “just don’t get it” — whatever the particular “it” might be. I, for one, am growing weary of explaining to judges and adversaries that certain behavior patterns are tolerated, encouraged or ignored in our community.

It is inevitable. When a head refuses to act as a head, then the feet of the intellectually honest will stomp on it.

David Seidemann is a partner with the law firm of Seidemann & Mermelstein.  He can be reached at (718) 692-1013 and at ds@lawofficesm.com.