You're Not Listening!

Listen:

If you are a private lawyer, you can get more people to hire you.

If you are a court-appointed lawyer, you can help your clients appreciate you more.

You can pick a better jury.

You can demolish your adversary's case.

You can perform a better direct examination.

You can perform a better cross-examination.

You can be happier in your relationship; you can be a better parent.

How, you ask?

I already told you. Listen.

That's all. Just listen.

If you listen to your potential clients instead of playing the big smart lawyer, more of them will hire you.

If you listen to your clients, they will know that you care and will appreciate your help.

If you listen to your potential jurors and give them an opportunity to reveal their truths instead of mechanistically asking them yes-or-no questions from your list, you will pick a better jury.

If you listen to your adversary's case, hearkening especially to the things not said, you can find the seams in the case and demolish it.

If you listen to your witness's testimony, you can perform a better direct examination.

If you listen to your adversary's witness's testimony on direct, again paying special attention to the words unsaid as well as to the emotions behind the words, you can perform a better cross-examination.

If you listen to your partner and your children, you can be happier in your relationship and be a better parent.

I'm willing to bet that you don't listen very well. Nothing personal, but to people raised in a culture in which "getting the last word" is considered victory and in which the position of "speaker" is one of power (consider "Speaker of the House"), active listening is difficult. We feel like we cede our power by listening to our adversaries rather than injecting our own point of view at every opportunity.

Listening isn't something that we're taught in school. That's too bad, because it's something that we can easily learn. (Google "active listening" for a plethora of resources; here, for example, are "Ten Tips to Be a Better Listener.")

Trial lawyers are no different than anyone else. We tend to plan the next question as the witness answers the last, and plan the counterargument as our adversary makes her argument. But when we are planning counterarguments and questions, we are not listening, and when we aren't listening we miss things.

So forget that you're the big smart lawyer, ditch your lists of voir dire, direct, and cross-examination questions, stop worrying about what you're going to say next, and start listening.

The Loss of Meaning

Scott Greenfield has apparently been having a blawgospheric discussion with Doug Berman about the merits of a Kentucky bill, HB210, that, in Doug's words, "imagines forfeiture as a possible alternative (rather than an addition) to lengthening prison terms for certain offenders."

After some back-and-forth in comments to Scott's thorough critique of the idea of asset forfeiture as a solution to the problem of overincarceration, Doug wrote:

I am not content to just "agree to disagree (strongly) on this one." Anyone not seriously thinking about VERY different solutions to mass incarceration, in my mind, is a BIG part of the problem. (And, as you should know, most criminals in prison now don't have a car or a house or a job to forfeit.) Why are you more sympathetic to people with property who commit crimes than to people without property who commit crimes.
I have long believed that liberals get in the way of SERIOUS game-changing criminal justice reforms more so than conservatives. This discussion confirms this belief. As I suggested at the outset, I think this is ultimately more sad than scary, because it shows that liberals are so brainwashed or beaten by current realities that cannot ever imagine a different world in which sounder criminal laws come to dominate.

"Conservatives" are people "seriously thinking about very different solutions" while "liberals" are people who "cannot ever imagine a different world"? Huh??? Did I fall asleep and wake up in Nineteen Eighty-Four?

It sounds to me like Doug is using "conservatives" to mean no more than "good people, people who agree with me" and "liberals" to mean "bad people, people who don't."

That would be well and good, except that very few people would agree that "conservative" means "agreeing in all things with Doug Berman". In fact, I suspect that lots of people who call themselves conservatives would probably agree with Scott that Doug shouldn't be calling himself one.

Once upon a time words had meanings that could be looked up in dictionaries; this was handy because if someone used the word "conservative" or "liberal" I could look it up and, having done so, safely assume that he intended its primary usage, unless the context suggested otherwise. I could have ascertained from the dictionary that "conservative" means "holding to traditional attitudes and values" and that "liberal" means "open to new behavior or opinions" and assumed that Doug intended those meanings.

No more.

(I'd like to propose that nobody use the word "conservative" or "liberal" on the web without linking to a precise definition. Because Doug's two quoted paragraphs prove that not only has the word "liberal" come untethered from its formerly-accepted ["dictionary"] definition, but "conservative" has as well.)

What's the application to the Art and Science of Criminal Defense Trial Lawyering?

Words have meaning. Sometimes they have multiple meanings. Beyond their meanings, though, they invoke emotion. "Liberal" has long been an epithet divorced altogether from its received meaning, such that even a liberal (open to new opinions, respectful of individual freedoms, favoring maximum individual liberty) guy like Doug Berman rejects the label for himself. "Liberal" has become a toxic word in our culture.

Doug's quoted prose suggests that he goes further than just rejecting the "liberal" tag and adopts instead the label "conservative" -- not, I have to think, because of its meaning, but because it is the opposite of "liberal." The contrapositive of "'liberal' is bad" is "'conservative' is good."

When we're talking to juries, we have to recognize that, despite the meaning of words, they may trigger emotional responses in our audiences. The government will, before the jury, refer to the complainant in a case as "the victim" if given the chance -- even though whether the complainant is in fact a victim is generally the issue that a jury trial is intended to determine. "Victim" is a word toxic to the accused in a criminal case. So are commonlaw words like "murder" and "rape." In Texas, the government will use these at every opportunity even though they are not part of the statute.

Astute prosecutorial readers will note that in the last paragraph I referred to "the government" rather than "the State." This is another illustration of the point. "Government" means roughly the same as "State", but "government" is a word toxic to the State. Even people who are inclined to trust the State, or the Commonwealth, or (lie of lies) "the People" find good reasons in their life experience not to trust the government.

Mexico Discovers Due Process

Mexico is in the process of overhauling its criminal justice system (WSJ). Jury trials aren't in the works, yet, but reforms include a move from an inquisitorial system in which judges decide cases in secret based on written submissions, to an adversarial system of open trials with oral argument.

Oh, and now people accused of crimes in Mexico will be presumed innocent.

Faith-Based Legal Argument

The same sorts of questions, it seems, pop up over and over again where lawyers gather to discuss the law. Questions like:

"Isn't it a violation of the disciplinary rules for a lawyer to talk to another lawyer's client about taking his case?"

and

"Shouldn't I put my client on the stand, so that I can make a record that I have conveyed the State's offer and he has rejected it?"

The correct answers (no and hell no, in these two specific instances) are easily ascertained by someone with more than a passing familiarity with the DRs. It's okay for a lawyer to talk to another lawyer's client because the client is not the lawyer's property, and because the client has the right to a second opinion or even to change lawyers. It's not okay for the lawyer to make a public record of his communications with his client because such communications are privileged, it is not in the client's best interest to have them aired publicly, and airing them publicly sets the lawyer and the client at odds.

Even in the face of references to the appropriate rules and opinions, though, many lawyers continue to believe that these questions may be answered yes and yes. Why?

Because this is what they have always done, or because this is the way they wish the law to be. But this is the law we're talking about here. "I believe" or "I always thought" or "It should be" very rarely trump the letter of the law.

Faith-based legal argument doesn't happen only in the arena of ethics, either. I've been told by numerous lawyers that it's against Texas law to possess prescription medication out of the pill bottle. Challenge them on it, and they insist that it's so. Press them, and they are unable to point to a statute or case. There is none; this is a jurisprudential urban legend.

Lawyers substituting uninformed opinions about the state of the law for actual legal research skills are young and old, prosecutors and defenders. They feed on each other -- when one faith-based legal scholar's opinion is not challenged by another, that opinion is confirmed and the need for actual legal research does not arise.

This can sometimes be frustrating to those whose first impulse, when faced with a novel legal question, is to fire up the laptop and research the answer -- those who can point to at least an approximate source (if not a casename or cite) for most every legal position they take.

When the faith-based legal scholar is an adversary, though, frustration can turn to joy. I'd much rather try a case against someone who assumes she knows the law than against one who knows that she doesn't know the law. The latter is more likely to actually get it right.

Trial Again Tomorrow

Knowing that a bunch of Harris County prosecutors are reading sometimes cramps my blogging style. I've got a felony cocaine and heroin case (less than a gram of each) set for trial tomorrow, and I feel constrained to say nothing more at this point than this:

It's an automatic-probation case if we lose, but my client, a lawyer, has a whole lot more at stake than the State does. So I have been very thorough in preparing some rather powerful surprises for the State.

It's probably better this way. I was inviting all sorts of trouble blogging about trial tactics and strategies that might have had something to do with the cases I was trying.

Oh, and today I punched a hole with a heavy-duty industrial 3-hole punch through the fingernail on my left index finger and into the top of the finger. (The sound of a hole punch puncturing fingernail is not a pretty one.) Perfect 300-degree arc out of the nail, perfect circular profusely-bleeding incision. That's gonna leave a mark.

For jury selection should I wear a Spiderman bandaid or a Barbie bandaid?

Let the Government Clean Up its own Mess

Scott Greenfield has an interesting pair of recent posts: The Conflicted World of Assigned Counsel and today's Rebirth of the Megatrial.

In the first, Scott argues that New York's appointed counsel system was not intended to, and should not, provide livings for criminal defense lawyers:

[T]here should never have been an 18b bar to begin with. It was my thought that no lawyer should be permitted to do more than 10 assigned cases a year. That way, no one would ever be able to build an entire practice on assigned counsel work alone. They would be required to find retained clients or else a new line of work. No one should live solely off of assigned work, and if they wanted to represent indigents that badly, they should get a job with Legal Aid.

In the second, Scott brings word of two related massive indictments: a 62-defendant federal indictment out of EDNY and a 26-defendant state indictment out of Queens County. That should be joyous word for the criminal defense bar -- "massive indictments inexorably lead to massive trials", for which 87 (New York math?) alleged members and friends of the alleged Gambino crime family each will need competent counsel. But

there is a strong likelihood that many (if not all) of the defendants will be unable to retain counsel to represent them in this matter. Between the limitations on funds available for use to retain counsel, the sheer anticipated length of this case, the potential conflicts of interest that will preclude the usual assortment of lawyers who represent alleged organized crime figures, it is hard to imagine that many defendants will be capable of retaining counsel for the trial.

We're talking about a possible year-long trial, if history (the Pizza Connection case, which saw 22 defendants tried in a converted gymnasium for more than sixteen months) is an indicator (but N.B. the Pizza Connection case wasn't tried in the Carnival of Snitches that is today's federal criminal justice system; since then the system has developed to create incentives for snitches so that prosecutors can avoid most trials entirely).

Think of the economics of that: to hire a rational lawyer to try a case for a year, first you'll have to pay her for the months and months, if not years of anticipated pretrial litigation, evidence review, and trial preparation. If the case went to trial for a year, you would have to pay that lawyer much more than her anticipated gross for that year. She's not going to be working on much aside from your case, so you'll be paying her rent, Westlaw bills, staff, insurance, utilities, and everything else that she needs to stay in business. Further, there is a vast and incalculable opportunity cost to her for trying your case for a year; you'll have to cover that too.

This being New York, the trial costs won't have to be paid up front, and you can't buy trial insurance. So you'll have to deposit the anticipated cost of a trial in your lawyer's trust account so that she has it available in the event of trial.

How much money are we talking? In New York, I think it's safe to say that competent counsel with more than a few years of experience is going to require a deposit at least in the high six-figures to take one of these cases and commit to trying it. None of the New York criminal defense lawyers I know well would -- or should -- blush to ask for over a million dollars to take on this case.

But what if you're an alleged crime boss, and you don't have a million dollars hidden under the birdseed? What if, as Scott suggests, you are one of the many who is unable to retain counsel to represent you in this matter?

If you're one of the 62 defendants in federal court, you'll most likely be appointed a CJA panel lawyer. This lawyer will be paid $100 an hour for every hour spent representing you. Just for a year-long trial (not for any of the lead-up, which will probably in itself take thousands of hours) he'll probably earn $300,000-plus of taxpayers' money. That might seem like a lot of money for a year of work until you consider that he has to pay his fixed overhead, office expenses, staff salaries, phone bill, library bill, insurance and so forth out of that while not having any other business. New York is an expensive place to practice; a lawyer with spartan tastes in overhead might finish the year netting (WAG here) $150,000 of taxable income -- a little less than a BigLaw first-year associate gets paid. That lawyer, however, will have seen his practice (if he had one) decimated by the yearlong trial.

If you're one of the 26 defendants in state court, you'll be appointed 18b counsel. He'll be paid $60 an hour for out-of-court work and $75 for in-court hours -- less than 3/4ths of the CJA lawyer's pay. And at the end of the yearlong trial the lawyer will net maybe $75,000, will have seen his practice (if he had one) decimated, and will (if the reforms that Scott favors are instituted) be pretty much out of 18b work as well.

So what kind of lawyer would voluntarily take one of these cases without more than half a million dollars in the ol' trust account against the eventuality of trial? That is, who'll take the case on the government's nickel?

An independently-wealthy true believer, for one. A lawyer who didn't care at all about money, and whose spouse didn't care at all about money, for another. Good luck finding either of these.

A lawyer who doesn't have a practice to maintain, or who isn't thinking ahead, or who thinks that taking such a case will be a good way to make a name for himself. Would you really want any of those representing you?

Who's left?

Jury Trial Today

I went down to JP Court on the beach in Galveston County this morning, not really expecting to have to try a case. So of course there were 24 potential jurors waiting in the courtroom when I strolled in (I was 20 minutes late because I didn't factor the ferry ride into my travel time), and my client's was the only case on the docket.

It took 35 minutes to pick a jury of six and try the case, and about three more minutes to get a verdict. That was the shortest jury trial I've had, and probably the shortest I will ever have.

Drug Defense Brainstorming

How, without putting your client on the stand, might you counter the government's "nobody would trust another person with x dollars worth of drugs unless the other person knew he had the drugs" argument in a trial in which knowledge is at issue?

I'm looking for novel and useful approaches.

Flight to Nowhere

So . . . the Government puts on this witness, see? And this witness, she works for Air France, right? So the Government puts her on the witness stand in a federal jury trial, and asks her about airfares. They want to know what the lowest fare from Houston to Port Harcourt was in April 2007. So they've got this printout from the Air France computer showing the various fares available from Houston to Port Harcourt between April 1, 2007 and June 15, 2007. With me so far?

So the Government has this nice lady on the stand -- lots of years' experience with Air France -- and gets her to talk about the various fares on this printout -- first class fares from Houston to Port Harcourt, economy class fares from Houston to Port Harcourt, fares with an advance purchase from Houston to Port Harcourt, fares without an advance purchase from Houston to Port Harcourt, fares with stays of various durations from Houston to Port Harcourt, all between April 1 and June 15, 2007. And the lowest fare for that trip -- Houston to Port Harcourt -- during that time period -- April 1 through June 15, 2007 -- was $1,536. Good enough. The point, I figure, is that the accused didn't choose the easiest, least expensive route from Houston to his hometown of Port Harcourt, or some such.

Anyway, the defense lawyer gets up to cross-examine. We don't know whether this fare was available when the accused bought his ticket, yadda, yadda, yadda. Then -- and I really don't know how this comes out -- the nice lady mentions that the Port Harcourt airport was closed because of civil unrest.

Okay, the defense lawyer asks. How long has the Port Harcourt airport been closed? Since sometime in 2006.

Port Harcourt Airport. Closed. Since 2006.

For those of you who might be employed as federal prosecutors, and therefore having some trouble keeping up: Even if the accused had wanted to take this flight, he couldn't have.

Sheesh.

Now I'm Supposed To Be the Reasonable One?

Last Monday I went to federal court to help my friend (and fellow dinosaur) Norm pick a jury on a cocaine case. Before the jury panel was brought in, the judge handled some motions in limine. She became frustrated, first with the prosecutor and then with my friend because she thought that they should both have done more to prepare for trial. (Norm, like me, had spent a chunk of the last month in trial.)

I did my best to keep my head down and speak only when spoken to, but got dragged into a discussion about whether Norm should have done more to get a copy of the Government's exhibit binder before trial. (Norm hadn't been told that it was ready, and so he hadn't sent someone to pick it up; her honor thought that he should have called to ask if it was ready; she asked me, and I told her candidly that, in every federal criminal case I had ever tried, the government had notified me that their exhibit binder was ready, and had often sent it over to me.)

After the hearing on the motions, the jury panel was brought in. Norm asked for a continuance because of some things that were left undone, and the judge granted it (conditioned on Norm paying $1400 to reimburse the court for the jury panel!). She reset the case until next Monday and, as we were all (Norm, his associate, me, and two prosecutors) packing up to go she said, "Mr. Bennett, you're on this case now. I'm sorry if you're not getting paid for it, but you made an appearance, and I want you to assist Norm."

I tried a bank robbery case before this judge in 2001 (Norm's brother sat second with me on that one) and, as I recall it, she threatened at some point to order me to do some sort of penance for something I said during closing argument (if I recall correctly, she took umbrage at my arguing, from the lack of any evidence that my client had ever even been in the town where the bank robbery occurred, that my client had never been in that town). In the end she didn't, but I clearly recall that she thought I had gone overboard in my representation of my client. Since then I have appeared before her several times on cases that never went to trial, and I'm not certain that she remembers the zealousness of my trial advocacy.

But on Monday, when she ordered me onto the case and then softened the blow by saying, "I respect your opinion, and appreciate your input" or summat, what could I do but say "thank you, your honor," and look at my calendar to figure out how to mollify my clients who will, for the third week in a month, not be getting my full attention because I'm in trial on something else?

So now I'm back into trial mode. Except that this time I'm supposed to be the adult supervision, the voice of reason, the chaperone.

The judge may be in for a surprise.

Winning Despite Yourself

In this post about Gerry Spence's defense of Geoffrey Fieger (well, it's not really about that; it's about the egos of Gerry Spence [who boasts he's never lost a criminal case] and Geoffrey Fieger . . . or maybe all criticism is autobiographical and it's not really about that either . . .), my New York brother Scott Greenfield wrote:

Bear in mind that Gerry Spence was the lawyer who represented Imelda Marcos, the steward of all footwear, in the Southern District of New York. After the jury returned a verdict of not guilty, one was asked whether it was because of Gery Spence. The response was it was despite Gerry Spence. Ouch.

Call me crazy, but I don't feel Scott's pain. I've had prosecutors opine that juries acquitted my clients despite me; I would love to hear that from all of my juries.

Obviously, I would much rather have a client acquitted despite me than have a client convicted despite me. In the list of all possible things a jury could say after reaching a verdict in a criminal case, one of the least painful would be "we acquitted him despite his lawyer." The only contender for the title of "least painful" is "we acquitted him because of his lawyer", and I'm not sure I wouldn't prefer to hear "despite" instead of "because of" as justification for an acquittal. Here's why: jurors lie about their verdicts. If you want to be lied to, talk to a jury about its verdict.

Even if they were inclined to be entirely truthful after a verdict, jurors would be a lousy source of information on the reason for their verdict. Because they are the object of the lawyering, jurors are unable to accurately assess the effect of good lawyering on them. Jurors make their decisions mostly based on their guts; then they try to rationalize and justify what they've decided. Nobody wants to be tricked into making a decision by some slick lawyer; generally jurors would rather believe that they did what they did despite the lawyering, because it was just the right thing to do. Jurors would like to believe that the lawyers just got in the way of their discovery of the truth (clients who owe money like to believe the same thing).

Generally, the better the lawyering, the less obvious. Perry Mason moments are rare; great lawyering is more often than not transparent, with the lawyer stepping backstage and letting the story tell itself. Ideally, the trial lawyer will give the jury what it wants: the illusion that he is not influencing them.

Beyond transparency, there is lawyering that is so fine that it is not only transparent, but transcendent -- lawyering so subtle that it appears to the uninitiated (including the jury) that the lawyer is screwing things up. I don't claim to know what Gerry Spence was doing in the Marcos case, but I know that whatever he was doing worked. And in the end, that's what matters.

Texas Murder Sentences: Probation to Death

There has been some ado in the blawgosphere lately about the fact that Texas juries could convict people of murder, and then give them probation. (It's not the law anymore -- for murders after September 1, 2007, probation will not be an option for the jury.) Furriners (anyone unfamiliar with Texas culture, including reporters from the Dallas Morning News) express surprise that, in a state well-known for executing killers, probation was an option available to juries.

The truth is that Texas's propensity for killing its citizens, and its leniency with some murderers, are both expressions of the a single principle. Texas doesn't execute murderers to show its regard for the value of life; it does so because some people (as the parable says) need killing. Sometimes the guy who -- in the eyes of Texas -- needs killing is the accused, and sometimes he's the complainant.

"He needed killin', and my guy was the guy to do it" has long been a viable defense in some Texas murder cases. These are cases in which the State often couldn't secure convictions despite being technically murder; it'll be even less able to secure convictions in the future from juries that know that, if they convict, prison will be the only option.

In the "murder" case that I just finished trying, the complainant didn't need killing. His brothers were bad dudes, sure, and there were pictures of him flashing gang signs and guns (the jury heard about them, but didn't see them), but basically he was a 17-year-old high school kid who loved to play soccer. Without a probation option, however, I am convinced that the jury would not have been able to agree on a guilty verdict at all.

It sometimes happens that, in the culpability phase of a trial, the jurors who favor conviction will agree to put an accused on probation if the pro-acquittal jurors will agree to convict the accused. I didn't talk to our jury afterwards (want to be lied to? Talk to a jury about its verdict.), but the notes they sent out, along with the brevity of their punishment deliberations, suggest to me that their minds were made up on probation before the punishment case began.

What was wrong with the State's case? Calling what my client and his brother did "murder" was a stretch. The State's theory was that they were parties to the felony murder of the complainant. The crime -- felony murder -- was intentionally firing a gun at a car and (incidentally -- nobody had to intend it) causing someone's death. So not only did my client not need to intend to cause anyone's death, but nobody needed to intend to cause anyone's death.

Murder? I suppose the law says so. But not the sort of thing Texans (other than the naifs in the DA's office) are inclined to get particularly worked up over.

Lawyers Who Never Lose

Scott and Norm and Gideon and Stephen have been having a discussion, started by Norm, about lawyers "keeping score" -- keeping track of (and, incidentally, boasting about) their won/lost records.

Norm points out that a jury trial really isn't a sporting event, and the playing field isn't level.

I can't promise any client that a won-loss record will shed any light on the outcome of his or her case. Each case is different. Sometimes a mountain of facts can yield only a valley of despair. All a client can and should expect is dedication and hard work.

Scott adds:

If you want to know whether the lawyer is any good, there are two questions to ask yourself. Does he know what he's doing and will he fight for me to the end. Other than that, the score card means nothing.

Steven contributes:

The honest and fair approach is to explain that no two cases are anywhere near comparable and that our "won/loss" record is a meaningless attempt at self-promotion and self-glorification.

And Gideon pipes up:

For us public defenders, on the other hand, the score wouldn’t represent anything. Our “win-loss” record means as much as it does for a pitcher in baseball: almost nothing. We get what cases we get. We deal with them as best we can.

So my esteemed colleagues seem to agree that a win/loss record is meaningless.

I disagree.

Suppose that you have a choice of two lawyers. One of them claims never to have lost a criminal case; the other, like me, Scott, Steven, and Gideon, has had clients convicted by juries. All else being equal: which do you hire? If a win/loss record were meaningless, the correct answer would be "either." But I'm confident that Norm, Scott, Gideon, and Stephen would agree with me when I say: hire the latter lawyer -- the one who admits having lost jury trials.

There are four possible reasons a lawyer would claim never to have lost a criminal case. First, he might define "loss" differently than the rest of us. Second, he might be a deceiver. Third, he might not have tried many criminal cases at all. And fourth, he might have tried only the cases that were easy for him.

If the lawyer defines a "loss" differently than the rest of the world, he's failing to communicate. Since lawyers are communicators, you don't want to hire one who tends to give words private definitions (especially if he does so to support his self-image). If you have a choice between hiring a lawyer who speaks to you in his own special language in which losing on bad facts is not "losing", and hiring a lawyer who speaks to you in English, choose the latter.

Similarly, if you have the choice between hiring a lawyer who deceives you and hiring a lawyer who tells you the truth, choose the latter. (That really should go without saying.)

Babe Ruth struck out over 2,000 times. Generally, anyone who tries cases loses some. If you have a choice between hiring a lawyer who is so new to jury trials that he hasn't had an opportunity to feel the sting of defeat and hiring a lawyer who has tried enough cases to get his butt kicked a few (or many) times, choose the latter. The former isn't going to know what to do when things start turning nasty.

There is an exception to the general rule that anyone who tries cases loses some. A lawyer who is very selective might be able to try only cases that are easy. If you try the easy cases and not the difficult ones, you might preserve a perfect or near-perfect win/loss record. Now, the cases that are "easy" to this sort of lawyer may not be easy to everyone. He might be exceptionally gifted and hardworking and able handily to win cases that would be difficult to most lawyers. But, facts being what they are, there are cases that would be difficult for him as well, and he's doing something with those cases other than trying them.

Some of those difficult cases need to be tried. A dedicated, talented lawyer who tries tough cases loses some of them, but he also wins some. In fact, he loses some that by all rights he should have won, and wins some that he should have lost.

Imagine that there's a class of cases that a particular lawyer at his best would have a 50% chance of winning. If he tries two of those cases, he's going to lose one (so he'll no longer have a perfect record), but one of his clients who would not otherwise walk is going to go free. If a lawyer is so averse to losing that he doesn't try the tough cases, his win/loss record might look good, but he's not pushing his limits, and he's leaving something -- the freedom of some of his clients -- on the table.

I have a friend who advertises that she has "never lost a case where she's put her client on the witness stand." Now, she's a great trial lawyer, but I've always thought this an odd thing to say. I have to wonder: are there cases in which she didn't put her clients on the stand, where their testimony might have made the difference between a conviction and an acquittal? And if it came down to the choice between putting a client on the stand and maybe winning a trial, or preserving her perfect testifying-client win/loss record, how would she choose? It seems to me that if you never put a client on the stand and lose, you're not putting your clients on the stand enough.

If I were being defended, I would want to take the stand if my lawyer thought it would do more good than harm, even if I might be convicted despite my testimony. I certainly wouldn't want to think that she might advise me not to take the stand, even if it might help me, because her record might suffer if I took the stand and she "lost" despite our best efforts.

By the same token, if I were being defended I would want my lawyer to help me decide whether to plead or go to trial based entirely on whether the expected cost to me of losing at trial outweighed the expected benefit to me of winning. I would want someone willing to push the envelope, willing to try cases on the ragged edge of the plausible.

It is easy to envision how a lawyer might become a slave to his perfect record -- how the desire to maintain a perfect record might, to his clients' detriment, reduce the lawyer's tolerance of risk. Trial, though, isn't about the sure thing; it is about taking risks. Give me a lawyer who sometimes loses over one who always wins. Any day.

A couple of Good Moments, and One Less Good

First, only the criminal defense lawyers will truly appreciate this setup (it actually happened today in trial):

Prosecutor (to a defense punishment witness, before the jury): D would benefit from college classes, wouldn't he?
Witness: Yes, I suppose he would.
Prosecutor: And did you know that inmates can take college classes in prison?
Witness: Well, I guess they can, but it's not the same as taking them on the outside.
Prosecutor: Pass the witness.

Second, the complainant's mama got on the witness stand today in the State's punishment case. Unprompted by the State (of course) she testified that she had seen our clients' family suffering. She thanked the jury for finding our clients guilty, she said, but she didn't want any more suffering. The prosecutor steered her away from that topic toward other things that might enrage the jury.

When my turn came to cross-examine here, I very gently steered her back toward the topic. Then I asked her, "are you asking the jury to put these two young men on probation?"

"Yes." was her answer.

The government also put the investigating detective, Sergeant Brian Harris, back on the stand for the punishment phase. Unlike last Wednesday, I neglected the Motorcycle Rule and he took the opportunity to argue the State's case for them. (Brian: it won't happen again, I promise.) The judge wouldn't let me correct his misbehavior myself, wanting me instead to object to the nonresponsiveness of his answers. I ask you: where's the sport in that?

Jury No Longer Out.

Two guilty verdicts. An acquittal would have been a victory; a mistrial would have been a victory; probation would be a victory too. These two young men don't need to go to prison. It's tragic that the complainant lost his life. It sucks, it's unjust, it's unfair, and nothing this jury does can possibly make it any less tragic, or make it suck any less. They can, however, make it more tragic by taking two more young men away from their families.

No time to lose heart now: tomorrow we put on a punishment case and

. . . never give in, never give in, never, never, never, never-in nothing, great or small, large or petty - never give in except to convictions of honour and good sense.

W. Churchill

Jury is Out

The jury is out on our murder case. Final arguments went well -- I didn't see much that the prosecutor argued that Tyrone Moncriffe and I hadn't already covered. I may have said this before, but it's good to try a case with someone who I can trust to do a great job without any supervision.

So now we wait.

Hit Me Again, Baby!

Today while cross-examining my client, the prosecutor took two verbal swings at me personally. He suggested that I was responsible for my client's account of the facts and suggested that I was calling the state's witnesses liars.

What does that mean?

The Things We Carry

For trial, I have a collapsible wheeled file box (like one of these, but I have a cheap generic one from OfficeMaxDepot). When I'm not in trial mode, the box folds up and stores under the couch in my office. When I am in trial mode, the box expands to about 13.5"W X 12.5"L X 13"D -- big enough to hold several large 3-ring binders, my code book, my laptop and its charger brick, a couple of low-carb meal replacement bars, and a plastic box for small supplies.

In the smaller box you'll generally find:

• Exhibit stickers.
• Highlighters.
• Markers.
• Pens.
• DVI to VGA converter (for hooking my MacBook Pro to the courtroom display).
• Listerine breath strips.
• Verizon Wireless Broadband adaptor.
• Hand wipes.
• Post-it notes.

What do you carry with you to trial?

Letter or Spirit?

[Edited 11/7/2007 to ensure compliance with TDRPC 3.07. Discretion is the better part of valor.]

When defending a client, my general style is to go riiiggghhhtttt up to the line and lean waaaaaayyyyyyy over. In one white-collar trial once, a long time ago, I asked a question of a witness today that the prosecutor thought crossed over the line. The prosecutor, when the jury was sent out, started talking at me about how I'd just "made my reputation." "This is not the last case we'll have together, you know that," he said.

(I marked it down in my calendar: after practicing law for years, at 4:30 on a Thursday afternoon, I had made my reputation with a single eight-word question.)

Why would that prosecutor expect me to do anything other than make putting my client in prison as difficult as possible? If I had been representing him, would he have wanted me to ask that particular question? Hell, yes (and for the same reasons that it so incensed him)! But prosecutorial sanctimony (a trait necessary to that field of the profession) wins out, and that day hadn't been going very well for him anyway, so he got mad. (It would have helped my client more if it had happened at the beginning of the day instead of the end.)

Now, I'm not going to violate my personal ethics for my clients. I'm not going to break the law for my clients. I'm not going to disregard a lawful court order for my clients. Beyond that, though, nobody who's trying to put my client in prison is going to get any breaks from me on a case unless the benefit to that client outweighs the detriment. I would never trade away my zealous advocacy for a client for the possibility of a better result or an easier time on some future case or a better reputation in the DA's office.

In fairness to the prosecutor (because I'm a fair guy), I think he thought that I was violating at least the spirit of a motion in limine, if not its letter. But I was within the letter of the order, and such orders don't have spirit; they have to be specific to be enforceable. If you're trying to hide the ball from the jury, and you get the judge to tell me not to talk about baseball games or balls, don't be too surprised when I start talking about bats or gloves.

Am I wrong?

A Much Better Day

[Edited 11/7/2007 to ensure compliance with TDRPC 3.07. Discretion is the better part of valor.]

Three of the State's civilian witnesses testified today. They didn't do us much harm -- they actually disproved a chunk of the prosecutor's opening statement, and proved a good chunk of our opening for us.

One witness testified on direct that she saw a guy with a handgun, and then testified on cross that she didn't really see that guy with a gun. She also testified on cross first that the car stopped after making a u-turn, and then that it didnt stop, but just slowed way down.

Tomorrow, more cross -- probably some cops, crime scene officers, and so forth.

The fat lady probably will not have sung until three of my client's guests that night (the three who were awake and are available for trial) are done on the stand. Until their testimony, I expect fairly smooth sailing.