Standing strong and embracing identity in the courtroom

Recently, I attended a thought-provoking voir dire seminar led by a respected trial attorney and advocate who has openly supported Israel. He suggested that Orthodox Jewish trial attorneys, especially those who wear yarmulkes in court, consider questioning potential jurors about their attitudes towards Jews and the situation in Gaza. This approach aims to address and mitigate bias amidst rising antisemitism, helping to identify and exclude jurors whose prejudices could compromise the fairness of a trial, even when the case is unrelated to these issues.

Similarly, I learned about the legendary attorney Johnnie Cochran, who, despite his personal discomfort, would address his race during voir dire. Cochran's strategy was a calculated move to confront racial biases directly, ensuring that prejudiced jurors were identified and removed. His approach was a pragmatic response to the harsh realities of his time, aimed at preserving the integrity of the trial process

I deeply recognize the validity of this recommendation to confront biases head-on in voir dire and ensure that prejudice has no place in the courtroom. The necessity of addressing and mitigating bias is undeniable in our pursuit of justice.

As a proud, visible Jew who wears a Yarmulkeh in court, I felt as though the speaker was speaking directly to me. However, while I hold the webinar speaker in the highest regard for his remarkable achievements and the esteemed reputations he has built through groundbreaking jury verdicts, I must respectfully dissent and stand apart from his approach. His insight is valuable and his intentions admirable, but I must adhere firmly to my own principles. As Frank Sinatra famously declared, I must "do it my way."

In the complex realm of litigation, each advocate brings their unique perspective and strategy, and I am no exception. My identity as a committed Orthodox Jew and staunch Pro-Israel advocate deeply informs and shapes my legal approach and courtroom strategy. This personal conviction drives my commitment to justice and guides my actions, ensuring that my methods remain true to my core values and unwavering principles.

First, it goes without saying that Jewish lawyers should never be pressured to seek permission to express their identity, represent their clients, or compromise their principles to appease anti-Semitic sentiment. Our right to practice law with dignity was hard-won through generations of overcoming exclusion and adversity, achieved through our own efforts in establishing firms and reaching the highest echelons of the legal profession. My unwavering commitment to my identity and values - as is my commitment to represent my clients zealously - are non-negotiable. It is a cornerstone of my practice, underpinning my dedication to justice and integrity. To dilute or debase oneself in the face of hostility is to undermine the very principles of our legal tradition and personal conviction. We stand firm in our identity, unwavering in our pursuit of justice, and resolute in our commitment to upholding the standards of the profession.

Nevertheless, in grappling with this suggestion, I am compelled to confront and understand my own resistance.  As an Orthodox Jewish trial attorney who openly embraces and embodies my heritage and identity, I find myself resisting suggestions that might undermine my core principles. As trial attorneys, our foremost responsibility is to zealously advocate for our clients, fighting tirelessly on their behalf. However, for me, this advocacy must be conducted without surrendering my core principles. I remain resolute in my belief that true justice is achieved not by compromising our values to fit an external mold but by standing firm in our principles and confronting bias with unwavering integrity. My commitment to my heritage and identity remains unshaken, even as I navigate the challenging intersection of personal conviction and professional duty.

The suggestion to probe potential jurors about their biases against Jews and their attitudes toward Israel is logically an essential part of striving for a fair trial. Yet, this advice compels me to confront a deeply unsettling reality: does my choice to wear a yarmulke inadvertently escalate the need to scrutinize jurors more rigorously during voir dire? Should I even consider the unthinkable -- removing my yarmulke for the sake of a jury trial, while I might keep it on for a bench trial? The truth is, even if I decided against wearing a yarmulke, my distinctly Jewish name would inevitably reveal my heritage, and any underlying anti-Semitic tendencies among jurors would emerge. I am acutely aware of human nature and the harsh realities of bias. The more prominently Jewish I present myself, the more exposure I risk to potential prejudice.

I find myself reflecting on whether fellow trial attorneys with distinctly Jewish names--such as Levine, Gross, Goldberg and Schwartz--who choose not to wear yarmulkes, encounter a similar imperative to address issues of bias. This contemplation is not born out of comparison but from a sincere desire to understand the broader dynamics at play.

Does my decision to wear a yarmulke place me uniquely at the forefront of confronting these challenges as the webinar suggests? Does my visible expression of faith mean that I am more directly confronted with issues of bias and prejudice, prompting me to navigate these complexities with heightened awareness and resolve?

On the other hand, I am equally curious about how those who express their Jewish identity differently engage with these challenges. Do they face comparable struggles and employ distinct strategies to address juror bias, or does the nature of their practice shield them from these issues in different ways?

Assuming we remove the Yarmulkeh issue, the discomfort remains. Raising these issues--bias against Jews and attitudes toward Israel--directly with jurors feels like an uncomfortable confrontation in voir dire. It challenges me to bring the personal into the professional, to lay bare the prejudices that I have faced and continue to face. This resistance is not just about discomfort; it is about the deep-seated desire to believe that merit and justice can prevail without having to spotlight these biases. Yet, the reality is stark and demands that I confront these issues head-on, no matter how uncomfortable it makes me.

My Judaism, my yarmulke and defense of Israel are never the focal point of a case. In the courtroom, the central focus is always the case at hand--the facts, evidence, and arguments that drive the pursuit of justice. My identity is a vital part of who I am, but it does not overshadow the primary objective: achieving a fair and just outcome for my clients.

From my experience, those who initially focus on the black suede on my head soon find their attention diverted by the strength and clarity of my presentation. My arguments command attention, and my yarmulke becomes a mere backdrop to the powerful force of my advocacy. The more formidable my presentation, the less the yarmulke captures their focus.

My cases are built on the robustness of my arguments and the integrity of my position, not on sidestepping or accommodating anti-Semitic bias. In my opinion and experience, wearing a yarmulke fosters and enhances trust rather than diminishes it. Jurors are accustomed to encountering Jewish individuals without overt symbols of their faith, so my yarmulke stands out as a mark of transparency and authenticity reflecting my unwavering commitment to my values and principles, thereby enhancing my credibility and earning respect in the courtroom.

To the extent that a juror might search for me on LinkedIn or otherwise learn about my 30+ years of litigation practice, they would discover that I consistently wear a yarmulke in court.  If that same juror were to see me in court the next day without my yarmulke, it would send a conflicting message. Such a discrepancy could be perceived as an attempt to hide or compromise my true self, undermining the very authenticity and transparency that my yarmulke represents. This incongruity might lead to questions about my sincerity and commitment, potentially eroding the trust and respect I strive to build in the courtroom.

Parenthetically, when I observed other trial attorneys, such as criminal defense experts Michael Schwartz and my protégé Lou Shapiro, proudly wearing their yarmulkes in court, I felt an overwhelming sense of pride and admiration. Their steadfast commitment to their Jewish identity, even amidst the high-stakes pressures of criminal trials, exemplifies a profound strength and unwavering conviction. When I inquired whether they raise their Jewish identity with a jury, their response was a firm "no."

I fully respect and appreciate the choices of colleagues who opt not to wear their yarmulkes in court, recognizing the valid concerns and strategic considerations behind their decisions. These choices are made with thoughtful deliberation and reflect their own experiences and challenges.

Returning to the issue of voir dire, while it may be customary for trial attorneys to "thank" jurors for their brutal honesty in revealing their biases, thereby justifying their removal, I cannot, under any circumstances, condone or express gratitude to a juror who openly displays hatred towards Jews or condemns Israel. I will never thank an antisemite for being an antisemite. My refusal to do so is a matter of unwavering principle.

When a juror reveals such profound animosity, acknowledging or accommodating this bias is equivalent to compromising the very integrity of the courtroom. This practice sets a perilous precedent that could irreparably taint the entire jury pool. Allowing or even appearing to reward such prejudice risks legitimizing it, which fundamentally skews the impartiality essential for a fair trial.

Once this toxic issue of hatred to Jews and of Israel become part of the voir dire discussion, it has the potential to spread among other jurors like an uncontrollable wildfire. The consequences of raising such bias can escalate beyond the immediate situation, creating an atmosphere where prejudice becomes a pervasive and destructive force. A skilled trial attorney might find that addressing this issue not only fails to achieve the intended result but also risks losing more than they hope to gain, jeopardizing the trial's fairness and integrity in the process.

This precedent does more than erode trust; it warps the pursuit of justice by signaling that biases are acceptable or even rewarded within the legal process. Such an erosion of impartiality poses a grave threat to the fairness and integrity of our judicial system, creating an environment where justice is undermined by the very prejudices we seek to eliminate.

Further, Israel's reaction to Hamas terrorism in Gaza is grotesquely misrepresented and distorted in the media, on campuses, and at the United Nations. This misrepresentation is a pervasive and entrenched bias that pollutes public discourse and clouds objective judgment. I believe that introducing this inflammatory and divisive topic into a jury pool is not just unwise--it is an exercise in futility. Such a move would distract from the central issues of the case, inflame deep-seated prejudices, and ignite endless debates that serve no purpose other than to obfuscate the case and the pursuit of justice.

My commitment to defending Israel remains steadfast, unaffected by the noise of protests or the onslaught of propaganda. My clients are fully cognizant of my observant Jewish identity and trust in my integrity and adherence to principles. This trust is built on the foundation of my strong character and unwavering commitment to my values, even in pivotal moments such as jury selection.

My commitment to my identity and principles is resolute and inviolable. To engage in tactics that compromise these core values would be to betray the very essence of who I am and the standards I hold dear. True advocacy, to me, is not about yielding to external pressures or altering one's methods to placate bias. It is about standing firm in one's principles and embodying integrity with unwavering strength. By holding steadfast to my identity and values, I assert that justice is best achieved not by accommodating prejudice, but by confronting it head-on with an unshakable dedication to fairness and authenticity. In the face of adversity, it is this commitment to unyielding integrity that defines the true measure of effective advocacy.

I understand that some experienced trial attorneys might perceive my approach as naive or idealistic. Nonetheless, I am committed to seeking and valuing the insights of my colleagues, including fellow Orthodox Jewish attorneys, as part of a vibrant and ongoing dialogue about courtroom strategies. By engaging with a spectrum of perspectives, I not only deepen my understanding but also refine my methods, allowing me to navigate the complexities of the legal landscape with greater effectiveness. My commitment is to integrate these diverse viewpoints while steadfastly adhering to our shared values, reinforcing our collective resolve and enhancing our ability to confront the nuanced realities of the courtroom

I am eager to receive valuable suggestions from my esteemed colleagues regarding innovative and respectful methods for identifying juror bias against Jews and Israel--without directly probing their views in ways that might compromise my values. This exploration is not merely about navigating the courtroom with integrity but about evolving our strategies while steadfastly adhering to our core principles. It demonstrates our strength and resilience, highlighting our conviction that justice can be pursued with honor, without sacrificing the essence of who we are.

By integrating these insights, we affirm our dedication to delivering justice with unwavering conviction. Our openness to adopting thoughtful and principled strategies reflects our adaptability and resolve. It illustrates that while we navigate the complexities of the legal landscape, we do so with an unwavering commitment to our principles, ensuring that our advocacy remains both principled and impactful. This commitment to principled practice exemplifies our strength and resilience as advocates, serving as a beacon of integrity and excellence in our field.