MUSINGS ABOUT BEING A TRIAL LAWYER

Poulsbo is a quaint town of about 9500 people and a drive of about one hour and a half from Seattle. It’s a Scandinavian seaport fishing town located right on the salt water.

In 1983 I received the “Small Town Lawyer Made Good” award from the Poulsbo Bar Association. The award was the brainchild of  Paulsbo lawyer Jeff Tolman. As I recall, the Poulsbo Bar Association had approximately 13 members at the time. However, Jeff had created this award and then was successful in talking some nationally known people to travel to Poulsbo to receive the award and participate in the daylong seminar as well. The guests who agreed to show up included several members of the United States Supreme Court, Gerry Spence and local lesser-known lawyers like me. Lawyers came from all over the state to attend the seminar and listen to the person Jeff had induced to come to Poulsbo.

I bring this up because it represents to me a picture of what a lawyer should represent.  Here was this creative  lawyer  in a small  town  who  managed to  establish  a seminar  involving  some  prominent  people  who were willing to travel  in some cases a great distance  to participate  in  a gathering of  other lawyers . Everyone had a good time and it was educational as well. He had done some important good work for the community and the bar. So, I got to thinking about lawyers and what they should be like. Here are some rambling thoughts.

Some years ago there was an article in the Alaska Bar newsletter written by an Alaska lawyer about why he became a lawyer.  He said that his father was a lawyer and that he would, on occasion, go to court to watch his father. One time he was there during a trial against another lawyer who was disliked by his father and the feeling was mutual.  The other lawyer had cross-examined a witness and as he came back to counsel he leaned over and said to his father in a stage whisper:  “How did you like that, you little pissant.”  His father reached up, grabbed his opponent by the necktie, pulled him to the table and the two of them begin rolling around on the floor while the judge was banging his gavel.  He said: “That’s when I knew I wanted to become a lawyer.”

One description of the role of a lawyer is to: “comfort the afflicted, and afflict the comfortable.”  Some people see the role of the lawyer like the story about W. C. Fields, the famous comedian of the 1930s who was a well-known atheist.  One day someone saw him reading the Bible and asked him why he was reading the Bible.  He said: “looking for loopholes, looking for loopholes!”

Many years ago I participated in seminars about law office management with a number of lawyers from around the country.  One of them was Harris Morgan from Greensville Texas. Harris spoke about attorney fees. The story he would tell was that his father was a lawyer and that as a young man he would work at his office.  He would overhear his father talk to clients about the fee. He said his father would tell the client: “Mrs. Smith I’m so delighted that you have enough confidence in me to hire me as your lawyer.  I intend to do the very best I possibly can for you. However, there is one thing you should know about my limitations.  I can only concentrate on one thing at time.  Therefore, we need to talk about the fee so I won’t be distracted while I’m representing you.” Harris would use this story to emphasize that it was essential the lawyer brought the fee up first, had a clear understanding about the fee and costs and confirmed it in writing as well.

As to fees, the famous Texas criminal defense lawyer Percy Forman was fond of saying: “I never charged a client more than he had.”

One thing I do know about being a trial lawyer is that if you want to be loved, find another field of practice. It’s not your role to please other people, be loved by your opponent or the judge. It is your role to do the very best for your client you are capable of doing within the rules. As Harry Truman has said, “if you want a friend in Washington, buy a dog.” If you want to be loved as a trial lawyer, buy a dog.

I realize there’s little here that is helpful, but I thought I’d pass it on anyway. Next time I’ll use something practical.

CROSS EXAMINATION IDEAS

Have you thought about what the possible objectives are in cross examination? Often times we have not thought out the possible avenues we could take in cross examining a witness. Here for example are some of the objectives one might have in cross examination:

  • To establish the witness is not telling the truth on one or more material points.
  • To show that the witness is biased and has a motive for coloring the testimony.
  • To show that the testimony is improbable.
  • To obtain admissions about particular facts.
  • To question the accuracy of testimony by problems of observing, hearing or seeing.
  • To question the qualifications of the witness to express opinions or make observations.
  • To impeach the witness by showing conflicting statements or actions.
  • To question the witnesses credibility for truthfulness.
  • To impact the impression of the witness.
  • To discredit the witness because of bias, prejudice, lack of qualifications or other deficiencies.
  • To obtain helpful or damaging admissions.

Lewis Nizer was a famous lawyer years ago who wrote best selling books about his trials. He used to refer to what he called  “the rule of probability.” He would a attempt to determine what was the most probably and the most  likely version a jury would accept as being true and then work around this trial and in his examination of witnesses. This fits the principle of Occam’s Razor: The simplest explanation is the most likely and is a good way to think about your cross examination.

Elizabeth Loftus is a professor of psychology who taught at the University of Washington in Seattle before moving on to other academic institutions. She did considerable research about the testimony and believability of witnesses. One of her findings was that the more detail the witness has about the event they are describing the more credible they seem. She has written:

“why is detail testimony powerful? Jurors and further a witness who provides details has a good memory of the accident or crime. They also seem to think that the witness must have paid close attention to critical aspect of the events. Also, some jurors may simply believe that people who remember details must be telling the truth because it would be unlikely that they would make up seemingly insignificant details.”

Consequently cross examination about the ability to provide details is important. Her research also established that jurors rely upon the degree of confidence of the witness in expressing the testimony. She found that jurors were far more likely to believe eyewitnesses who were confident than those who were not. The impression the witness makes on cross examination is important. Your ability to undermine that confidence is also important. In a case I tried last year the defendant’s lawyer asked the doctor how certain she was about a key fact she testified to. She answered: “Ninety Nine percent.” I found it interesting that some listeners and apparently some jurors put significance on the fact she didn’t say: “One hundred percent.” The impression of confidence counts.

There was a scandal under President Nixon, known as the Watergate scandal. John Connolly had been secretary of the treasury under President. Nixon and was charged with having taken a $10,000 bride to influence the president to raise federal price supports for milk. The principal witness against him was a Jacob Jacobson, a disbarred Texas lawyer. Connolly was represented by the famous Washington DC lawyer Edward Bennett Williams. His cross examination destroyed Jacobson and Connolly was acquitted.

Attorney Michael Tiger set 2nd chair to Williams and did a reenactment of the cross examination at a seminar. It went like this:

Q. Mr. Jacobson you’re a liar aren’t you sir?

A. No I’m not.

Q take a look at this document. It says “statement of Jacob Jacobson” on the top. That you is that?

A yes

Q and that your signature on the bottom?

A yes.

Q and the 1st sentence says: “I lied when I testified before the grand jury,” doesn’t it?

A yes.

Q so you’re a liar, aren’t you?

Very effective technique. Before John Edwards became a politician he was very successful trial lawyer. In his book Four Trials he describes a cross examination of an expert where the expert was evasive and gave long complicated answers. John had a very straight forward question prepared on a poster and asked him for the answer. He wrote on another paper in front of the jury the witnesses long evasive answer. When he was done, John said: “Would it surprise you to learn that several months ago you were asked that same question in a deposition and your answer was….” and John pulled out a large poster with the answer: “Yes, sir.”

When John put up the next simple question he had printed on a poster the witness again gave an evasive lengthy answer again. Once more, John produced a large poster with his answer at the deposition which was “Yes. sir.” The technique was very effective and attention getting for the jury.

Cross examination is a powerful tool and we should learn to use it right. We tend to argue with witnesses and often over insignificant points, at least in the juries mind. We have a habit of boring the jury with details and focusing on issues that aren’t major issues. The jury assumes the witness isn’t perfect and that everyone tends to exaggerate or fudge with the facts, so if it isn’t a major point or if it doesn’t seriously impact the impression the witness is making forget it. Jurors watch TV trials. They think examinations are two or three minutes long with huge dramatic points. They are not prepared for lengthy examinations unless it is interesting and entertaining. Prepare your cross examination. Try it on non lawyers and be prepared to reduce it to an examination which is meaningful to the jury.

WHY DON’T WE GET RID OF “DUMBASSED JURORS”?

I received this Email from someone whose address was: bob bdifalco@yahoo.com about my post regarding jury selection. He said:

“Lawyers ought to spend their time getting rid of all juries, and hyping up judges so are adequate without dumbassd jurors.”

JUDGE< When the constitution of this country was being debated jury trial was seen as an essential and far reaching civil right. The men who signed the Declaration of Independence and wrote the Constitution provided for three separate provisions in the U.S. Constitution to guarantee the right of jury trial. Article III, Sec 2 provides for trial of jury in the state where the crime was committed. The Sixth Amendment guarantees the right to a speedy and public jury trial. The Seventh Amendment of the Bill of Rights guarantees jury trials in civil cases. The right to jury trial in civil cases was specifically and deliberately added to our Bill of Rights as an essential right of all Americans.
There is a reason for the founding father’s concern about the right of jury trial. From the time of the Norman Conquest the issue of the right the ordinary citizen to trial by one’s peers rather than a judge was a huge issue. The founding fathers knew the history of England. They knew one of the key concessions to the people was the Magna Charta of 1215 conceding the right to a jury trial of one’s peers. They knew the history of the English Star Chamber secret trials by judges and its abolition as a grant of right in 1641.

Alexander Hamilton said: The civil jury is a valuable safeguard to liberty.” Thomas Jefferson in a letter to Thomas Paine wrote:
“I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

That’s why Jury trials were seen as such an essential protected right that it was put in the United States Constitution in the Fifth, Sixth, and Seventh Amendments of the US Constitution. When we are dealing with historical rights and constitutional rights of this magnitude which have been included in the Bill of Rights, one should be slow to arbitrarily decide to just eliminate them because of complaints about jury verdicts.