Trial Theory

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.

This poignant blog post from Matt at Chandler Criminal Defense is worth reading – it takes guts to blog about a loss at trial, knowing that potential clients as well as your peers will be reading.  I’ve been there, and this post captures the feeling of just having lost a hard fought battle against overwhelming odds, and seeing your client’s life taken away with the stroke of a pen.

Matt describes a client who signed two “confessions,” and yet who proclaimed his innocence and insisted on a trial – the right thing to do was exactly what Matt did, fight for his client and give him his right to a trial by jury – if innocent, his client will forever feel betrayed by the system, by his country and by the jurors who decided the case against him, but he will never say that his lawyer did not stand up and fight for him.  He will never say that he is in prison because his lawyer forced him to plead guilty.

After a loss, we wonder what we did wrong, or what we could have done differently.  We tear apart the case, the preparation, the trial, looking for clues to why the jury decided the way that they did.  Usually we find the errors, we catalogue them, and store them for future use.

Criminal defense is not an easy job, and it’s never tougher than when you’ve just lost a trial. The only benefit is that a loss leads to reflection. It’s no consolation for my client, but I am never more acutely aware of the lives of the people I represent or the importance of what I’m doing. A loss does more to make me a better lawyer than any win could ever hope to do.

Matt notes that details from the trial that he would never have thought of had he won are pouring into his mind.  Matt’s post makes it clear that he cares about his case, and he cares about his client – the first step to winning a case is to care.  The pain and the devastation that we feel after a loss is a testament to how much we allowed ourselves to care for our client – it is a pain that motivates us to become better lawyers and to become better people.

Maybe we do learn more in defeat than in victory.

Karl‘s and Paul‘s posts about preparation had me thinking about the ingredient most important to success in trial. It’s an ingredient that we don’t talk about much because we either have it or we don’t; there’s nothing we can do to increase it or fortify it, and there is no substitute for it. Since we can’t take credit for it, we don’t discuss it much unless we don’t have it—egotistical us.

I’m not talking about talent, of course. Talent is good, but hard work can be a substitute for talent. I’m also not talking about technique. Technique is necessary, but we can develop technique (Stephen Nachmanovitch, in Free Play, writes that before we can improvise we must have “technique to burn.” Karl’s post on “hidden preparation” is, I think, about developing technique to burn.). Hard work is necessary, but hard work is an act of will.

Read more…

A friend went to trial this week in a police abuse case – his client who had not broken any law was manhandled, arrested, jailed, and was hurt by the police and by a system where might is right.  The client was sympathetic, attractive, honest, genuine.

The jury returned a defense verdict, and for whatever reason refused to acknowledge that what happened was wrong.

I’m thinking that, although there is no compensation, there is no justice for the client, and the lawyer worked long and hard hours without any pay, there is still justice in the fact that someone stood up for her and said No to the police.  If the jury, the judge, or anyone else did not reach out their hand to the client and acknowledge what had happened, one person did.  One person stood up for her against the power of the government, and understood what she went through and that it was wrong.

There are many goals in bringing a lawsuit – compensation for a wrong in the form of a financial recovery is the obvious one.  Another is to change what was wrong, and to try to make a difference.  Just bringing this type of lawsuit, and fighting through to the end, accomplishes the second goal inasmuch as is possible.  Win or lose.

I’m damn proud of any attorney who fights for a client in such an unpopular cause – civil rights cases are hard, and there are easier ways to make a living, which tells me that anyone who brings this type of case is not doing it just for the money.

I wrote last week about the “systems” theory of trial: viewed most simply, a trial is a system; add energy to a system, and its behavior becomes more extreme and unpredictable.

Bobby wrote a couple of days ago about resonance:

One thing that I learn from participating in psychodrama sessions is that there are certain universal experiences that resonate with every human being and that tap into our shared emotional experiences as human beings.  Betrayal resonates.  Relationships resonate – father and son, mother and daughter, husband and wife.  Identifying which of those universal issues is present in our client’s story can be key to helping a jury internalize that story.

Let’s put those two concepts—trial-as-system and resonance—together.

One night in the university library, I leaned against a bookshelf, and felt a little give. I gave a little shove, and felt it sway away and back. I did it again, and when it had moved back as far as it would, gave it another little shove. It swayed farther. I did it again. Every time it got close to me, I shoved it a bit, and it swayed farther and farther until I decided that creating a domino effect in the philosophy stacks wasn’t such a hot idea, and stopped.

The principle I was messing with was resonance. The bookshelf was a system with an inherent resonant frequency, and by adding energy to it, little by little (the equivalent of a firm pat on the back) in time with its resonation I was creating an extreme (and potentially expensive) effect—an effect that I probably couldn’t have created with brute force.

Lots of systems have inherent resonant frequencies. No matter how high it swings, each swing of a pendulum takes the same amount of time (that’s why pendulum clocks work). No matter how hard you hit it (as long as you don’t break it) an empty crystal wine glass will ring with the same tone. Adding energy in sync with the resonant frequency is a way to make the system move without applying brute force. Give the pendulum a little push at the end of its swing, and its next swing will be higher. Put a ringing crystal glass near an identical glass, and the second glass will start ringing as well.

You can also use your recognition of the resonant frequency of a system to damp the system instead of energizing it. Slow the playground swing a tiny bit at the top of each oscillation, and eventually it’ll stop moving altogether. It takes longer, but it hurts less.

As a system, a trial is usually a lot more complex than a pendulum or a wineglass or a bookshelf. But sometimes we hit on the story that resonates, so that the judge or the jury or even the witness on cross-examination is nodding along with every word we say. (It gives new meaning to the phrase “sales pitch.”)

In trial, do you have to use brute force to win for your client, or can you find and tell—little by little, over and over—a story that resonates with the jury and leads them right where you want them to end up?

H/T to Public Defender Revolution for putting a label on “Trial Chicken:”

Also, one way I can sometimes achieve good results is by capitalizing on the volume of my cases and my experience with the system: that is, I play Trial Chicken. And while Trial Chicken isn’t pretty–the Best Practices People would surely frown on it–I get more dismissals out of trial chicken than I do any other way.

In the context of criminal defense, prosecutors and sometimes judges threaten trials like it is a bad thing.  The truth is, they don’t want your case to go to trial – if everyone insisted on their constitutional right to have the evidence against them tested in a trial by jury the system as it is now would break down.  The system is best served when every person comes into court, their attorney negotiates the best guilty plea possible, and all stand in line to enter their guilty pleas one after the other.

For the most part, that is what I see happening in our courts.

Trial Chicken implies that each side does not want a trial, and so one or both will swerve at the last minute.  But, if we’ve done our investigation and preparation and the case is ready for trial, we are not likely to swerve.  If Billy and Sue are playing “chicken” in cars, but Sue is bound and determined to smash into Billy’s car, Sue is going to win every time.  Even when they crash.

The bizarre weather we’ve been having this winter has me reflecting on one way to look at trials.

It snows in Atlanta in February, and the critics of global warming jump up and down with glee, proclaiming the weather to be proof that global warming is a myth. As columnist Thomas L. Friedman points out, though, when global temperatures rise and the climate changes, “The weather gets weird. The hots are expected to get hotter, the wets wetter, the dries drier and the most violent storms more numerous.”

The basic big-picture explanation for this is that the Earth is a system, and that when you add more energy to a system, the behavior of the system becomes more extreme. (Think of a pan of boiling water, which boils more violently as you pour more heat into it. Or think of a bouncing American football, which will bounce farther away,  in an unpredictable direction, the harder it’s bounced.)

This is a good place, I think, to start thinking about trial theory: viewed most simply, a jury trial is a system (a loosely-coupled complex system, but that’s more than we need to know right now). We don’t have to know what the components of the system are to know that adding energy will make its behavior more extreme. If it’s a stable system, adding energy will make it behave more extremely in a predictable way. . . until it breaks down (overrevving an internal-combustion engine). If it’s a system with some randomness built in, adding energy will magnify the randomness, with higher highs and lower lows.

Most jury trials are at least a little bit unpredictable—if the parties knew how they were going to come out, trials wouldn’t be needed. Adding energy to an unpredictable trial magnifies the unpredictability.

In the systemary trial, one way we can add energy is by adding witnesses. The more human beings get on the witness stand to testify, the more data the jury has to consider, the higher the emotions, and the less predictable the behavior of the system. Irving Younger’s “commandment” of cross-examination, “Never ask a question when you don’t already know the answer,” is a prescription for adding less energy. (As Paul Luvera writes, Younger was wrong.)

There are certainly times when we want to keep the energy low and the trial  predictable—for example, when our adversary has a burden that she can’t meet on her own.

There are often times when we want more unpredictability in a jury trial—for example, in a plaintiff’s case when we are trying to maximize damages, or in a criminal case when the deck is heavily stacked against us and it’s time to throw in everything including the kitchen sink.

There might even be times when we want to try to add enough energy to make the trial-as-a-system break down.

Recognition of the fundamental systemariness of the jury trial is a helpful tool in knowing whether to ask that next question, put on that next witness (the accused?) or even put on a case at all.