Define Justice
What is Justice? It’s a question that philosophers have attempted to answer for ages, and which eludes those who work in our court system seeking Justice. Justice is fairness. Justice is Mercy, generosity, equality, compassion, kindness. Justice is retribution, punishment, revenge, and restoration. Justice is dictated by what serves the needs of a society. Justice is dictated by what serves the needs of each individual. Justice is when a person gets what they deserve. Justice is harmony and balance – righting what is wrong or at least evening the scales when they have tipped too far to one side or the other.
Justice is a lie. Trickery, a concept pushed upon us by those in power to justify the things that they must do to us in order to keep their power over us.
Justice is Truth. In the courtroom, Justice is achieved by an independent investigation of facts conducted by a judge and/or a jury, and presented for their review by advocates on each side of a dispute.
Justice for an institution, such as our court system, is determined by the standards of our day, by a fluid agreement made by leaders and representatives of a society as to what Justice should be, what is right, what is wrong, what is permitted and what is not, what the punishment for violations of the social norms should be, when reparations should be made and how.
There is Justice on each side of a dispute. In the courtroom, Justice is different for each person present. It is the advocate’s job to find what Justice is for his or her client, to show it to the jury, to be sure that the jury understands the client’s story and what Justice means for that one person in the room, and to empower the jury to give it to them when no one else would or could.
“Beauty and justice trial preparation”
Before last week, this blog lay silent, not dead but unsure of it’s future. I loved the concept of the blog, but I started thinking well, everything I do here I could do on southcarolinacriminaldefenseblog.com. And, time constraints and all, it is hard enough to find time to maintain one blog. But, one day recently I was looking at the search terms that brought people to trialtheory, and I just felt, well . . . happy. For example, “beauty and justice trial preparation.” If that does not encapsulate the soul of what I want for the blog I don’t know what does. So, who knows. I’ll keep coming back, I think.
Here are some more gems that brought people to trialtheory:
go to the sound of the guns
story telling of cross examination
“fog of war” trial theory of case
is bobby g frederick a good attorney
beauty and justice trial preparation
are we all killers at heart?
stop what’s going down song easy right
captain going down with his ship
is anger contagious
what happens if the witness in a felony case disrupts your living space
we learn more from defeat than we do through victory
“spaghetti defense”
non verbal cross examination
poems about tilting at windmills
chicken on trial
first criminal trial preparation (hope I was some help).
Themes and theories and flexibility
We are taught that we have to have a theory of the case, and we need to have themes and theme phrases that we will repeat throughout opening, direct, cross, and closing. But we have to be careful when telling the jury our theory of the case that we are putting forward something that we can prove – if we do not have credibility we have nothing. If we are not telling the jury the truth our theory of the case is not likely to carry the day.
So what happens when the theory of the case you have put forward in opening statement does not pan out? Obviously we should have known the facts of our case better and/or we should have been more diligent in only presenting the truth to the jury. But if the worst happens, be flexible. Tell the truth. If you discover that something you have told the jury is not true, tell the jury, and adjust your theory to fit the truth.
I have had several trials where the prosecutor lost the jury when their carefully crafted theory turned out not to fit the truth of the case, and then the prosecutor refused to change their story. They stayed the course until the bitter end – you could see the point where the jury started to question the prosecution’s theory, the question marks on some of their faces, and you could see the point where the prosecutor completely lost them, as the prosecutor continued to recite his pre-packaged, memorized verse.
In a recent distribution trial, the prosecutor’s theory was clearly that the defendant was running a business, and the image the prosecutor wanted to create in the jury’s minds was that of an open-air drug market like what we see in “The Wire,” a television show about police and drug dealers on the streets of Boston. Straight out of the gate, the prosecutor says, “Business folks, moving product and making money, and we got the man in charge of the business!” Except the evidence showed that there were no drugs found on the defendant, and there was no money in the vicinity. There was no real evidence tying the defendant to the drugs that another individual sold to an undercover officer. There was no “business” going on.
So how do you combat the image of an open air drug market that is now implanted in the juror’s minds? Tell the truth. In closing, I expected the prosecutor to repeat the memorized verse that laid out his theory of the case and the image that he wanted the jury to see, the image that was a lie unsupported by any evidence that came out in the trial. I told the jury the truth. I told them about themes and theories, and how lawyers are trained to use effective themes and theories and to put images into the jurors’ minds. I asked them if any evidence supported the prosecutor’s theme of an open air drug market, and I accurately predicted that the prosecutor would repeat his theme phrases word for word in his closing.
I told the jury about the themes and theories that I had considered before the trial, and that I had rejected even using a “theme phrase” in this case, in favor of simply telling them the truth, telling them what happened, and what I believed the evidence was going to show. I told them a story, about how my four year old son stands on the grass in our yard, and how he has three balls. There is a big beachball, and there is a soccerball, and there is a small purple looking ball, I don’t know what it’s for but it’s fun to play with. He starts to walk through the grass in the yard, and he is determined to carry all three balls with him, but each time he bends over and picks one up another falls through his arms. No matter how he tries, his arms are not big enough to carry all three of the balls at one time.
I tell the jury that this was the image I would like them to have as they considered the case the state brought against my client – because the police had made an arrest already; they arrested another man who sold drugs to an undercover officer. But then they are trying to overreach, and they want to charge and convict more people than the evidence in this case permits. They want to take it one step further, and charge and convict another man who is standing down the street. No-one saw a drug transaction between the first guy and this defendant. There is no video, there is no audiotape. Like the prosecutor’s non-existent open air drug market “business,” this is the image I would like the jury to have in their mind – a small child that is fumbling, trying to hold one ball too many yet it keeps slipping from his grasp.
The jury in this case returned a verdict of not guilty. I wonder if the jury would have felt differently if the prosecutor had abandoned his inflexible and unsupported theory of the case, and simply told the jury the truth.
The Boy Who Cried Wolf
“Nobody believes a liar…even when he is telling the truth!” My son is four years old now, soon to be five. He’s gotten into the habit of coming in while I’m working on the computer and telling me “daddy, dinner’s ready!” After a few times of walking into the kitchen to see dinner still cooking on the stove, I’m thinking I need some independent confirmation before I believe that dinner is ready. I ask him, “are you telling the truth?” and of course he responds “yes!”
Last night I was reading The Boy Who Cried Wolf to him before bed, and it occurred to me that this story contains a most basic explanation of how to demonstrate the un-truthfulness of a witness’ testimony. Not that this is always the goal of cross-examination, but when a witness is not being truthful about something critical to the case it becomes an important part of the cross-examination.
How do you prove that a witness is lying? In some cases it can be proven by extrinsic evidence or testimony of other witnesses who can contradict the first witness’ untruthful statement. Or we can show bias or motive – demonstrate to the jury the witness’ reason for lying. If the witness has not been consistent in his or her statements we can impeach the witness with prior inconsistent statements – video, audio, witness interviews pre-trial, or statements they have made to other people.
But if these tools are not available, or in addition to these tools, can we show that the witness is simply someone who lies – even if we are unable to prove the witness is lying about the most important fact, what if we are able to show that the witness is lying about other facts? If the witness has lied about other facts, has given inconsistent statements on other subjects, and can be impeached on other statements that he has made to the jury, why should the jury believe anything that the witness says?
The Old Man’s advice to the young shepherd boy, as he laments the loss of his sheep to the wolf, and wonders why the village-folk did not come to help him, is as valuable a lesson for cross-examination as it is for my son: “Nobody believes a liar…even when he is telling the truth!” If you are not a consistently honest person, how can we know that you are telling the truth?
The whispering of the hours
When you work you are a flute through whose heart the whispering of the hours turns to music.
~ Kahlil Gibran (H/T Leigh Johnson’s facebook page)
Excellence
“Excellence can be attained if you care more than others think is wise, risk more than others think is safe, dream more than others think is practical, and expect more than others think is possible.”
~ Author Unknown (but stolen from Leigh Johnson’s facebook page)
Information overload
It’s time to take stock of where my time goes – mostly to work, but like many I am in desperate need of time management skills. I love information – I read blogs, I absorb as much as I can on the ever changing landscape of the law in South Carolina and nationwide. I love philosophy, particularly as it relates to the practice of law. Just now, I took a few minutes to consider how I spend my time when I am not working on a particular case, and realized that I am on no less than six listserves, for various groups and topics, I currently have 67 blogs loaded on google reader, and I have a growing stack of books that I want to read but do not have time for.
This is not an “I will teach you how to manage your time” post. I’m in the thick of it and, as I often do, I am sorting out my thoughts as I put them on the screen. Sometimes that works, sometimes it does not, some such posts get published and some do not. I’m open to suggestions from anyone who has conquered this issue of time management.
One thing I am realizing is that I am suffering from information overload – I am addicted to gathering information, and it is not readily apparent how some of it will ever be helpful. I don’t want to miss anything, but I think that a good first step is for me to stop absorbing every email on every listserve, and maybe even leave a few of them. Also, I think it may help if I pick 20 blogs that I read the most often, and leave the rest alone for a while. (If you are curious, my “daily reads” are on the blogroll here and at South Carolina Criminal Defense Blog).
It may be a matter of prioritizing as well – the next step might be making a list of what I spend my time on each day, prioritizing those things, and either streamlining or deleting the bottom half of the list. When it comes down to it, if I ask myself would I rather be reading a book about the practice of law or reading a series of blog posts about the practice of law, there is no question that I would prefer to kick back with a book (with a few exceptions for the best of our blogger friends out there – I love the trial-practice related blogs).
In an article I found on the Global Research Development Center’s website (interesting in light of the organization’s mission which is to collect and disseminate information), William Van Winkle writes that the intake of information can be addictive, and says that “fighting data asphyxiation can be difficult but possible.”
Data is like food. A good meal is served in reasonably-sized portions from several food groups. It leaves you satisfied but not stuffed. Likewise with information, we’re best served when we can partake of reasonable, useful portions, exercising discretion in what data we digest and how often we seek it out.
Maintaining two blogs is time consuming as well – I applaud those bloggers who say that they can crank out a meaningful blog post in a matter of minutes, because I do not find it so easy. But, blogging will be found near the top of my priority list and I am not giving it up just yet.
Some potential fixes that I hope to put into practice include:
- checking Facebook and Twitter only once a day
- checking email only once a day, at the end of the day
- limiting the number of listserves that I am on
- limiting the number of blogs that I follow daily
- returning non-emergency phone calls at the end of the day
- taking a few moments for meditation at the beginning of the day (focus=productivity)
- making lists (I already do this) and sticking to them (not so much)
- delegate more tasks when it is possible
- set time limits for tasks when possible
- limit distractions – and at least sometimes, close the door to my office
The biggest hurdle for me at the moment is limiting the information overload. There are so many things that I want/need more time for that, in the big picture, are more important than listserve emails or today’s 100 blog posts – spending time with my son, for example. Or finishing the painting that is sitting on an easel in my living room. Taking a walk or working out each day. Putting that extra [x] number of hours into any given case that I am working on.
Time management is a misnomer – I can’t manage time (time does not exist, but there’s a conversation for another time and place). I can manage what I do with my time each day.
Go to the sound of the guns
These words stick in my head, and as mantras go, it is a good one for the trial lawyer.
“Ride, or march, to the sound of the guns” is a military maxim that has been variously attributed to Napolean’s generals, Stonewall Jackson, George Armstrong Custer, J.E.B. Stuart, and others. I imagine that it is probably not the most sound blanket policy for a commander in battle – as a general rule, disaster looms if there is no sound strategy. The deployment of the enemy forces may not be known, and when you hear the sound of guns the enemy may be attempting to draw out your forces with a feint, all the while setting up an ambush from the flanks or from the heavy defenses waiting just beyond the ridge or in the treeline. In war or in trial practice, information on the enemy’s position is essential and without it the battle may be lost.
All the same, it echoes in my head, and it is oddly comforting. When detached from the rest of the army, or when enveloped in the fog of war, it provides an unerring sense of direction – go to the sound of the guns. Strangely, it feels like going home – the lost soldier in the fog of war knows that death awaits at the source of the sound of the guns, but victory awaits there as well. And that is where he finds his brothers in arms, fighting.
Trial practice is about strategy. It is about preparation, practice, investigation, and careful planning. But, when we feel lost in the fog of war and uncertain in our decisions, we go to the sound of the guns.
Invent, disrupt, inspire
“Invent, disrupt, inspire” – Paul Luvera comments on this motto of a research company:
One speaker ran a research company that was constantly looking for new and imaginative ideas. The motto of the company was “invent, disrupt, inspire.” When I heard that I thought of how that applies to trial lawyers. They must continually force themselves out of the rut of doing things the same old way and stay current with developments in communication. They need to invent new ways of doing things and thinking about what they are doing. They need to disrupt the old ways just because they are comfortable and they need to be inspired to search for new and better ways of representing their clients.
It is difficult to get out of our comfort zone – once we learn ways of doing things, it is easy to continue doing them the same way but we stagnate if we are not constantly striving to improve. When I first graduated from law school, I bought Cross Examination Science and Techniques by Pozner and Dodd – I read it, I studied it, I practiced with it, and I used it in every trial beginning with my first. I learned the basics of effective cross examination using the chapter and page method – one fact per question, each question designed to establish one point that needs to be made (a chapter), and one chapter per page. Following every important question is a cross-reference to the location in a binder of impeachment material with which I can prove the fact if the witness does not agree. I still recommend this book to every attorney, and you cannot read it too soon in your career.
More recently, I threw much of what I learned from Pozner and Dodd out of the window as I began practicing telling my client’s story in every cross examination. Even more recently, as I become more comfortable with story-telling in cross examination and every other aspect of trial, I am working on incorporating the new with the old. There is a lifetime of fine-tuning and discovery of new methods of telling our client’s story through cross examination ahead. We have to learn what the witness’ story is, learn how the witness’ story relates to our client’s story, and then find the best way to show this to our jury.
A wonderful method of cross examination that was shared with me recently is to imagine that you are reading from a children’s book, each question one short line from the book, and to give that children’s book a title which captures the story that you are sharing with the jury through this witness. As always, do not argue with the witness or get off track by non-responsive answers – disregard their answers when necessary, do not get sidetracked, and do not lose control of the cross.
This “story method” of cross examination is wonderfully simple and effective, but I recognize that some witnesses are going to have significantly longer cross examinations. There are times when you cannot ignore the witness’ answer and you must impeach them. In these situations, this “story method” then dovetails with Pozner and Dodd’s chapter and page method – each chapter in the cross examination can become its own children’s book with its own title, one chapter per page, but remain focused not on “scoring” a series of points, but rather on telling your client’s story through this witness. There will be technical chapters that are necessary to prove elements of the defense in a criminal case or elements of the cause of action in a civil case, and there is no better method of impeachment than Pozner and Dodd’s sourcing method, but at the same time each “chapter” in the cross examination becomes a literal chapter in your client’s story.
Invent, disrupt, inspire – we have to keep trying new and different things in our preparation and in trial, in our law practice, and in our lives. We need to challenge ourselves, our staff, and each other to continually grow and improve on what we already know.
The power of a song
Blonde Justice has a wonderful story about the power of music and how it is possible to inject some humanity into the cold halls of our courthouses. She writes about how she meets a man in the courthouse hall who is worried about a hearing he is about to walk into. He is carrying a cello that he is to play at a friend’s wedding later that evening – our friend Blonde Justice suggests:
“Maybe you can tell the Judge that if he puts you in jail some poor bride’s wedding will be ruined. Or offer to play for him as your community service.”
The man is called into the courtroom, and our friend Blonde Justice remains in the hallway talking shop with a prosecutor, when minutes later they hear the sounds of a cello coming from the courtroom:
And, amazingly, everyone in the busy courthouse hallway stopped, for just a few seconds, to look toward the courtroom door and to listen. A couple that had been arguing quieted. Their kid, in his stroller, stopped crying for their attention. For a minute, the sometimes inhumane courthouse seemed like an almost heavenly place.
What a beautiful story – we don’t know how it ends or if the musician is sent to jail, but really how could he have been? The power of music, which may be the most effective means of tapping into our shared experience as human beings, is rarely seen or heard in the courthouse. This man, walking into a frightening and unfamiliar situation, with the help of Blonde Justice, turned to what he knew best – a combination of circumstance (carrying his cello) and ability (he is a musician) that made it possible to bring color, life, and compassion to an otherwise cold and gray scenario.
I am always looking for ways to bring music into the trial of cases, and it is difficult at best. It is not ordinarily something that can be planned – it is something that must come spontaneously. I have talked to a few attorneys that were brave enough to sing in their closing arguments, but I have not yet had a trial where it felt appropriate to me. One thing that I have done is to look for a song that sums up my case, that fits my client or that captures the theme of the trial, learn it, sing it, and play it on the ipod and in my head and my heart throughout the trial of the case. It helps me to feel what I need to feel in that particular case, and I cannot expect to convey that emotion to the judge, prosecutor, and jury unless I have found a way to feel it myself.
I would love to hear ways that others have found to incorporate music into their trial work, whether in preparation or especially during the trial itself. Anyone?
