The temptation is always to keep talking. Unlike many attorneys, I’m not enamored with the sound of my voice. I do care about creating a thorough record for appeal, however. I want to make sure the jury has everything I want it to have before it goes back to deliberate. Those are the interests that I have to balance against brevity’s incredible ability to emphasize a point. Saying the same thing a thousand times along with other things never ends up as effective as only saying that one thing. Sometimes, not saying anything at all is even better. It never feels like that’s the truth, but the more I do this, the more I think it is.
I just had a trial where my client was adamant that he heard the officers’ guns make a clicking noise. He thought it was the hammer on their handguns being pulled back, though he never saw them do whatever it was that caused that sound. To discredit my client’s version of events, the officer testified his gun had no hammer and that no other parts on the weapon were capable of making such a sound. In a stroke of dumb luck, the officer ended up moving the release latch on his holster while he was on the stand. I probably looked like a kid on Christmas morning when it made a sound just like what I (and the jury, apparently) thought the hammer on a gun would make being clicked back into place. I asked him to do it one more time and promptly ceased questioning.
It’s hard to refrain from commenting on great evidence, and I felt a strong desire to ask the officer if that could’ve been the clicking noise. What if the jury didn’t come to that conclusion on its own? I’ve made a mess of more than one fairly effective cross-examination by fretting about that kind of thing. Doubting the jury’s fact-finding ability is one of the fastest ways to dilute your message with a slew of one-question-too-many’s. As skeptical as I might be about people in general, collectively, juries rarely miss something I want them to notice. I still worry about not giving them the whole picture though. It’s hard to figure out how to do that without going too far because far enough always seems like almost nothing.
Clients don’t usually help matters. I had a two co-defendant trial where the other defendant’s lawyer asked a million questions. He must’ve cross-examined the victim for three hours. Even still knowing the case inside and out, I can’t recall a single good point he elicited on cross. My client was furious at me the whole time for not asking as many questions as the other lawyer. He paid for me, didn’t he? Why didn’t I ramble too? It was as if my client thought he was paying by the word and not getting his money’s worth. Up to that point, I was trying to get better at trial by doing more. After they were both convicted, we went to speak with the jury. I was surprised when they couldn’t articulate what the defense was. Everything I tried to accomplish got buried in the overwhelming weight of what the defense presented.
I’ve heard people use the phrase “less is more” in many disciplines. I heard it in Tae Kwon Do and music when I was younger. Now I hear it in high performance driving, beer brewing, and cooking. In explaining the concept, I recall an elderly music teacher saying it’s like a beautiful woman in a simple black dress and pearls. When something is perfect you don’t need anything more, even when it may not seem like a lot. Every single not guilty verdict I’ve had has been in a case where I sat down more than once worrying that I hadn’t done enough. Looking back, what I presented in most of my losses really should have been trimmed. It was too much. More turned out to be less. Less is more.