I once asked him in chambers why he does it that way, and he said it was because he thought the parties should be bright enough to know what they can and can’t ask. His position seemed to be that it should be like asking questions of witnesses during trial; lawyers don’t have to submit every single question they intend to ask each witness in advance. They should know what is and isn’t okay.

My first thought was that he’d failed to realize that, although the parties don’t submit every question they intend to ask the witnesses, occasionally, a motion in limine is a good idea. I’d love to submit this proposed voir dire question and see if he let me ask it rather than rule in advance:

How many of you would be more inclined to find my client not guilty if you knew he was facing a life sentence and that you’d have to endure a really irritating Blakely trial if you convicted him?

Maybe that’s an ethics violation. Hmm. Gotta think about that one. Might be worth it for the look on his face (and the mistrial). Kidding, of course.

Anyway, his reasoning about why his method didn’t cause problems was that a lawyer who asked improper questions would draw a lot of objections that would be sustained and end up “looking foolish.” Aside from presuming that prosecutors are competent and know when to object, honestly a pretty good presumption in his jurisdiction given the overall quality of county attorney there, I think the bigger problem is that he assumes a jury would hold sustained objections against the party asking the question.

Prosecutors aren’t always very likable. Judges aren’t always so likable either. I sometimes do a pretty good job of convincing jurors that my client and I are the two people in the room with whom they have the most in common. It’s almost always true. I don’t see empanelled a lot of people who are among the lucky 1% I keep hearing about. They’re usually good, hard-working, ordinary citizens who got summonses. They distrust the government but vote to let it control either the bedroom or the boardroom because they think they have to choose Bud or Miller. They never think about how a glass of ice water might be a little healthier, but in the microcosm of the courtroom, things are different.

If I’m trying to talk to them, a prosecutor keeps standing up and arguing with me, and a judge keeps telling me to shut up, I’m not so sure I’m the one who’s going to end up looking foolish. It may end up looking a lot like a cover-up of some kind.

I’m not asking them for their opinions, not their social security numbers. I want to know them, and I care about their thoughts and feelings. They try to talk. They’re shut up and told to listen, listen, listen. They hear lawyers and an ex-lawyer carry on for days. I want them the share, share, share. Putting myself on their side and getting shot down over and over again could be the best thing that ever happened to my client.

It’s an interesting situation. If I were more adventurous, I might submit a novel’s worth of proposed voir dire questions. I might include some clearly objectionable ones. I might start to ask them and draw objections that’ll be sustained. Maybe they’ll start with things like, “the judge and the prosecutor don’t want you to know that…” Good idea? Oh well, probably not.

On a lesser scale, though, in a case where my theme melds well with the state covering up what really happened, getting a series of sustained objections when I’m clearly just trying to start a conversation might trump any evidence I end up presenting after the jury’s sworn. I haven’t had a chance to try it, but it’s certainly something worth exploring. Within reason and the rules of ethics, of course.

The funny thing is that the judge’s policy, as strange as it might seem, has the effect of enabling me to know a jury far better than I would otherwise know. I get to talk, but more importantly, I get to listen. I’m okay risking looking foolish if it means I’m at least given an opportunity to ask questions I wouldn’t otherwise be able to ask. Sadly, that’s more than I have in most courts.

The judge’s demeanor tells me he might relish the idea of making me look foolish, but given his experience and the outcomes I’ve seen in his courtroom, I almost wonder if he’s doing it to help me, not embarrass me.

Most of us in the legal profession got here not by living in the moment, but through significant forethought and strong will.  Those aren’t bad qualities, but they’re only helpful in certain aspects of the practice of law.

Drafting a motion is one such aspect.  The motion doesn’t really exist in time, as the reader reviews it at his own pace.  It’s more like painting a portrait than performing a concert.  The reader is going to stroll through the gallery and control his own time when he gets to what you’ve created. He doesn’t have to sit down and watch the show on your time.

With legal writing, you are also typically dealing with facts that already exist.  There may be variables, but you must aver a certain set of facts on which you base your analysis.  You should know those facts may change at a motion hearing, but for the pleading itself, they are usually static.  Being present and experiencing non-judgmental awareness in real time is, for the purposes of writing a motion, more or less pointless.

In the courtroom, however, the moment matters. The skills that got you through law school and helped you write that killer motion aren’t alone going to be sufficient when the officer begins to testify. You should have planned and prepared, of course, but a strong ability to perceive on the spot and under pressure is what I’ve noticed seems to separate the best from everybody else.

Being present optimizes awareness. Indeed, when you’re simply being present, awareness is all you really have. By living in the moment and applying non-judgmental awareness, you’ll notice more than you ever thought possible. This is because your judgments don’t actually enhance what you’re perceiving. If anything, they cloud your thinking.

I recall the first time I noticed a prosecution witness make a blatant factual misstatement on the stand. I spent the rest of the direct examination so excited thinking about impeaching him on cross that I may have missed even better evidence. I would have lost nothing had I simply noted what I heard and continued listening with detached awareness. My excitement, a product of my judgment, in no way enhanced my performance.

Preconceived notions about a witness or exhibit also tend to detract from your ability to most effectively use it to your benefit. You will see every step more clearly and present every step more effectively if you’re able to perceive the evidence as it truly is. You don’t want to taint the evidence with a perspective your audience may not share.

How many times have you heard people who share the same ideology talking about some controversial position they share? How persuasive was that for you? If you’re like me, hearing tax-and-spend Democrats talk in perfect agreement about how we need to jump-start the economy with a bunch of new government spending just isn’t very persuasive. Hearing social conservatives agree about the disastrous effects of gay marriage on society is even less persuasive. The language and approach don’t work for me because I’m not starting out with the same set of judgments and beliefs. We all give a different sermon when we’re preaching to the choir. Too much judgment, and we start treating everyone like a chorister.

Too much judgment also leads to sloppy work. You know the witness’s prior statements, and you know how the story has changed over time. You have concluded that the witness is a liar. To really persuade someone that you’re right, though, you need a demonstration instead of a conclusion. I can call a witness a liar all day long, but in the end, the jury may not care. They probably won’t believe it without evidence, and they may end up feeling bad for the witness. If I catch that witness in a lie, however, it’s a different story. Telling someone your conclusion is no substitute for walking them through the steps you took to reach it. Show, don’t tell. Your personal judgment is largely irrelevant to the former.

When you judge evidence as it’s presented, you’re seeing things through a filter. You’re relying on your preexisting opinions, and those are often opinions the judge and jurors do not share. You can’t read minds, so the best way to convince your audience is to build your position from nothing. When every person experiences the birth and growth of the point you’re trying to make, that’s when you have your best chance of getting them to agree. Inserting your judgments only dilutes your effectiveness.

In the moment, what you notice may be better than what you were seeking. Even if it isn’t, at least you noticed it. You certainly aren’t missing anything. Your perspective is likely closer to that of the people you’re trying to convince, and your presentation isn’t going to come off sounding like biased ramblings from a nut job. When judgment is necessary, like when you hear something objectionable, you’ll be quicker to realize it and voice your position. There’s no drawback.

Determination is a great thing. Planning, judging, and trying to bend the world to conform to your will certainly have a place in the law. Although they may help prepare you for the courtroom, they won’t guarantee your success after you’re inside. The opposite set of skills, being present and carefully observing, will take you a lot farther after the witness takes the stand.

Voir dire is a time when client input seems most important to me. I certainly don’t believe jury selection is just voodoo magic, but I also don’t believe any amount of experience can enable a lawyer to pick the perfect jury every time. There’s a good chance my client’s instincts are as good if not better than my own, and involving the client in the process of choosing the people who choose his fate only seems fair. I treat clients like a second-chair when it comes to voir dire, and I give significant weight to their decisions about whom we should strike. Often, I’ve left some strikes completely up to the client.

Like all of my best plans, that strategy doesn’t always work. When it doesn’t work, it fails spectacularly and often humorously. I’ve had a few clients arbitrarily write “fair” and “unfair” next to each juror’s number before anyone asked a single question. The Louis Vuitton bag or the long beard apparently directly correlate to fairness, I guess. I’ve also had clients request that we strike all minorities, women, and/or old people. Leave the former sex crimes detective or the uncompensated victim of the same type of crime on the jury, the clients say. They just don’t want a [insert prejudice here]. It can make for some difficult situations.

I’m writing about this because my favorite client voir dire contribution to date came up in a conversation this weekend. I laughed so hard thinking back that I almost cried. Sometimes, people do things with my own special voir dire charts that I’d never have expected in a million years.

Several trials ago, after an intense voir dire in a case with serious consequences, I asked my client what he thought about the people remaining on the panel. I had given him a chart designed for him to easily keep track of each prospective juror, and he clearly appreciated my desire to get his input as well as the chart I had created for him to neatly track each juror’s answers. Sadly, he didn’t appreciate the chart in quite the way I intended for it to be used. My client didn’t really keep notes at all. Instead, he chose to draw a badass picture of a dragon.

That’s right. His life hung in the balance. I explained the process, and I tried to involve him as best I could. He drew something that looked a lot like Trogdor. I was discouraged, and I can’t say I’ve ever been more acutely aware of the fact that not everybody cares as much about things as I do, even the people who should probably care more. It was a real eye-opener, and it was also fairly disheartening.

In all fairness, though, it was a really awesome-looking dragon.

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.

Details like that make everything feel more real, and in this particular case, those details really humanize that man for me. Knowing his last meal does more to upset me about his execution than all the mitigation in the world. It drives home that the government killed a person. It’s hard for me to think that an evil monster would have a favorite steak sauce or cut of beef. Hearing about the horrendous childhood abuse he might have received or the debilitating mental illness that’s destroyed him may seem too extraordinary to be real. It’s nothing I’ve experienced, just as the trauma to his supposed victim and the victim’s family is nothing I’ve experienced. Weighing those factors is an intellectual exercise in which no factor is in any way related to anything that occurs regularly in my reality. Knowing his favorite salad dressing makes him very real. They killed a real person. He liked blue cheese.

At an Oktoberfest a few years back, I was at a table next to the polka band when an elderly member of the ensemble collapsed. A friend of mine, the first person to respond, initially helped the old man by sitting him upright and straightening out his bent, wire-framed glasses. My friend gently positioned them on the man’s face in a way I’ll never forget. Something about that tiny detail, that one little act, will never leave my mind. My memory of the old man collapsing again, of seeing him get CPR and assistance from paramedics, and even my memory of learning later that he died en route to the hospital aren’t anywhere near as vivid as that one detail. I don’t know why.

In one of my recent trials, the victim showed up every day wearing his finest suits. They were neatly pressed. His shoes were always freshly shined. He read self-help books and manuals of inspirational bible verses when the court stood at recess. He talked about justice and faith every time he opened his mouth and sat eagerly in the front row of the gallery next to the aisle, wringing his hands in his lap. Of all the memories I have from that case, the single most striking thing was seeing him sitting there when the jury read the verdict and watching him storm out in disgust. I still recall his shiny shoes and his nice suit more than any other part of trial. Again, I don’t know why that is.

It’s nothing new for me to say that details are an essential part of persuasion, but it’s certainly worth repeating. A person’s last meal, the way someone put their glasses back on, or the appearance of a victim in court may not be important details to most people. They don’t have to be. In the context of trial or mitigation, a detail only has to be important to one person. If it lends even the slightest bit of credibility to what the defendant is saying or makes even one juror think of the defendant as a person instead of an evil beast, it’s worth it. Details are also something the other side may not have.

I read police reports every day. Most of them dryly recount events that would stand out as being extremely exciting in the context of most people’s daily life. Because of the blind faith most people have in authority, however, the just-the-facts-ma’am style of most reports seems to work. Officers appear to represent truth or justice or the American way or something like that. Just like Superman. Juries are happy to believe a boring retelling of a thrilling car chase or a dangerous assault for that very reason.

Your best weapon is probably details, and that’s probably because the officer won’t have them. I’m perpetually amazed at the things clients recall. Whether it’s the broken button on the officer’s uniform, the gum on the bottom of his shoe as he started kicking your client, or the fact he was wearing white socks, those are the details that might define the incident for a judge or juror. They may make your client and his story become just real enough to overcome the inherent bias against him and in favor of the police.

You never know which details are going to stick with which juror, if any stick at all. I can’t even predict which details are going to stick with me. Because of that, you should bring out all of the details, every single last one of them. Within reason, you should present the jury with the highest resolution picture you can. Maybe the grainy, dull, official version will seem a little less persuasive as a result.

In every trial I’ve done, the judge has given the jury some variation of Arizona’s standard “Presumption of Innocence” jury instruction. Here it is:

The law does not require a defendant to prove innocence. Every defendant is presumed by law to be innocent. You must start with the presumption that the defendant is innocent.

By “some variation,” I mean that a judge might add or subtract a word or two without changing the meaning. Paraphrasing is common, to a point. Changing an instruction isn’t, so you can imagine my surprise when a judge gave the following instruction earlier this year:

The law does not require a defendant to prove innocence. The defendant sits before you cloaked in the shroud of innocence. You must start with the presumption that the defendant is innocent.

I wasn’t pleased, and I made it known. I didn’t get exactly what I wanted, but I made my record.

I’ve wondered for months why the judge would use that language, and I can only conclude that it was intended to prejudice the jury against my client. Can anyone else think of a reason why?

People tell me I overreacted. People tell me it’s funny. One person called it “a dark instruction.” Another called it “the Harry Potter instruction.”

Good guys don’t need to be cloaked. Shrouds are for covering up things. It was carefully chosen language, and the effect was prejudicial. I don’t know where the judge got it, but that doesn’t really matter. The deck is stacked against defendants in the first place. The last thing the people judging need to hear is someone in a robe describing a defendant with words like that.

Let’s say you have an officer who’s saying something highly incriminating, something that he didn’t put in his police report. You want to impeach him with that omission. Using the 3 Cs technique the teacher recommended, you’d first commit the officer to his current statement. Make sure the judge or jury understands exactly what he’s saying. Second, you’d credit his police report. Make sure the judge or jury realizes that, if what he’s saying had actually happened, it would’ve ended up in the report. Third, you’d confront the officer with the fact he omitted that essential information from his report.

The last C is the “gotcha” moment. Hand the officer the report and ask him to find the part where he says what he’s now saying. He won’t find it because it isn’t there, and he’ll look bad in the process. Gotcha!

I recently saw the 3 Cs in action. The officer testified that he was the one who found contraband in the car, and the defense lawyer immediately (and very obviously) committed the officer to that statement. “So your testimony today is that you were the person who found the contraband in my client’s car?” “Yes,” the officer replied.

Committed! One C down, two to go. Everyone in the room knew what the defense lawyer was going to do.

The defense lawyer then proceeded to do a great job of crediting the officer’s report. He established that the officer had training on how to write a good report. He’d written hundreds. He was detail-oriented. He prided himself on being thorough. The officer knew the prosecutor relied on the report for charging. He knew the defense lawyer relied on the report in preparing his case. The crediting went on and on.

By the end, the defense lawyer had credited the report as being the be-all, end-all of relevant information in the case. Crediting is always the longest part of impeaching with the 3 Cs, and this time it took forever. I couldn’t wait to see that “gotcha” moment.

The defense lawyer strutted up to the stand, gave the officer the report, and asked him, “can you please show me where in your report you mention that that you were the person who found the contraband in my client’s car?” The room was filled with tension as the officer carefully looked through his report. Everyone waited on the edge of the seat for that moment where the impeachment finally came together, then…

“Page 4, paragraph 2, second sentence,” the officer explained.

The defense lawyer, promptly and with great authority, proceeded to end his cross-examination with flair, proudly declaring “I have no further questions your honor!” as if he’d not just had his ass handed to him.

It was a spectacular facepalm moment. It was riotously funny (except for the defense lawyer and his client, of course) and probably the best “gotcha” moment I’ve ever seen in court. It was just reversed.

Turns out the 3 Cs aren’t so helpful when you haven’t read the police report.

This isn’t the first trial I’ve lost. It pains me to say it, but it’s also unlikely to be the last. No matter how hard I try, I’ll probably again have to experience the feeling of knowing someone trusted me with their life and made a gamble that didn’t pay off. It’s a twisting, sinking, hopeless malaise that consumes you. You’re in a nightmare. You know you can wake up, but the person who trusted you can’t. Someone had faith in you. You did your absolute best, and it wasn’t good enough.

The word “guilty” overflowed with significance. My client testified, so “guilty” meant the jurors did not believe him. Twelve people must have unanimously agreed he was lying when he looked them in the eyes and said he did not do the charged acts. “Guilty” meant that my client would never again go for a hike, drink a beer, or even order a meal from a menu.

My client sat next to me crying, and I was incapable of comforting him. I had nothing to offer. There will be a motion for a new trial. He’ll have appeals. From now on, however, the deck is even more stacked against him. This was his best chance to fight for his freedom. I can’t tell him everything is okay because everything is not okay. He heard a word that signified the end of life as he’s known it since the day he was born. I can’t dull the pain or fear for him.

Strange memories of my client popped into my head. I thought about when I visited him the day before Thanksgiving and he said to me, “I hope you have a great turkey day, Matt.” I thought about one witness describing him as being obsessed with Xbox and football. I thought about how on a weekday roughly one year ago he went to the auto parts warehouse where he’d worked for years and began a day just like any other. Instead of working a full day and going home, though, he was arrested before his shift ended and held without bond. He couldn’t have known it at the time, but that was his last day of freedom. He will die in prison.

I know the terrible feeling in my gut will go away eventually. At some point, it will probably be entirely replaced by a desire to make sure this never happens again.

When the jury left to deliberate, I felt good about how the trial went. Now, I agonize over every little thing I could have done better. Details of trial that would’ve escaped my memory forever had I won now pop into my head one after another. After losing, I get the overwhelming feeling that every case can be won with the right defense.

This was a tough case. The state had two recorded confessions from my client, but he insisted he was innocent. Two attorneys before me had heavily pressured him to take the plea. He went through with two settlement conferences, never once even considering the offers the state put on the table. Should I have pressured him more? Would it have made any difference? If I had done something different, could I have won the trial?

The guilty verdict was followed by the aggravation phase. As my client sat there weeping, I felt callous getting back to work. It was work on his behalf, but it didn’t matter. A life sentence is a life sentence. What middle-aged man cares if it’s seventy years or eighty? Aggravation took away an important time for him to come to terms with what was happening. It thrust him back in front of twelve people who just judged him, twelve people who without knowing took away everything he ever knew.

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.

Being able to speak in public, knowing the facts of the case, and understanding the rules of evidence are rarely enough to effectively try a case. There are countless variables in almost any trial, and anything can happen. Every trial I’ve done has taught me that one of the most important skills a trial lawyer can have is the ability to predict problems that might arise and prepare accordingly.

My background is in music. In music, you do your best to gain technical mastery of your instrument. You learn the piece of music you’re going to perform, then you go out in public and do more or less what you’ve been doing in the practice room. For the most part, the audience is mostly what distinguishes practice from performance.

My first trial was a complete shock to me. I received a lot of guidance from established attorneys I respected, but no matter how much I wish it wasn’t the case, that just wasn’t a substitute for personal experience.

Opening argument felt familiar. I knew what I was going to say, and I said it. There’s a certain amount of improvisation even to opening, as the prosecutor’s opening or the jury you’ve picked may affect what you say, but that stuff is fairly predictable. You can prepare for it. Just learn the case, practice, and do your best.

What happens between opening and closing argument is a different story. Prosecutors do crazy things trying to get information out of witnesses. Witnesses do even crazier things, and judges may be the most unpredictable of all. Put enough pressure on people, and it’s almost impossible to know what they’re going to do.

As I’ve gained more trial experience, I’ve found myself devoting more and more of my preparation time to figuring out how I’m going to deal with situations I never would’ve thought of a year or two ago.

When you know what types of things have certain effects on witnesses, you prepare your questions accordingly. The content of my cross may be similar to what it would’ve been before, but I definitely ask things differently.

The same is true of objections. When you know the kinds of mistakes the prosecutor is likely to make, you’re able to make your objections infinitely more effective. Few things feel better than being able to give the court citations for the rule a prosecutor’s broken and the case interpreting it in your favor.

Being able to anticipate what’s going to happen is an incredibly powerful tool to have at your disposal. Unfortunately, it’s something you can’t rush. It’s something you build one trial at a time, and there’s no substitute for experience. I envy lawyers with decades of trials under their belts.

Trying a case is never going to be like playing a concert. I’ve come to grips with the lack of certainty, and I know there are always going to be things I can’t practice. With enough time, though, I imagine the feel of trial will more closely mirror the feel of a music performance.

Strangely, that almost makes me sad. The unknown is one of those things that makes trial so exciting.

The case is in Maricopa County Superior Court, and it’s assigned to the master calendar. I’ve complained about RCC before. The master calendar isn’t much better. Whereas RCC seems designed to make sure most lawyers appear lost at all times prior to an indictment, the master calendar seems designed to rush every case to trial after an indictment without letting the parties see the same judge twice. I haven’t figure out why anyone would want the parties to see a new judge every time, but that seems to be the goal, and the folks at the superior court are doing a bang-up job.

I was supposed to show up in front of the presiding judge at 8:00 a.m. this morning to get it set in front of a trial judge and begin trial. I was early, but the prosecutor got stuck in traffic. I got to watch some motions to continue by defense lawyers and motions to dismiss by the state. The first case or two that was actually ready for trial got assigned to a judge. A few after that got assigned to commissioners. By the time I was ready to go, the presiding judge said he was out of judges and reset the trial for tomorrow. Same place, same time.

It feels kind of nice to have some free time, but I’m a little pissed I worked so hard this weekend to make sure I was completely prepared to go today. I would’ve loved to have relaxed on Saturday morning instead of spending that time reviewing the state’s exhibits again. I’m in a trial kind of mood, and that’s a hard mood to change. I really hope trial goes tomorrow. If I get up at the same time, put on another suit, make the same commute, and show up in the same courtroom only to get my hopes dashed again, I’m not going to be happy. I do wonder, however, how long it’s going to take before my life begins feeling a little bit like Groundhog Day.