» Trial
Looking Foolish
There’s an experienced judge in a nearby jurisdiction who won’t rule in advance on whether he will allow the parties to ask their proposed voir dire questions. His position, which he makes very clear, is that he will rule on the questions when they’re actually asked. He isn’t kidding. If the state objects after you ask it, he rules. The opposite is also true. Otherwise, you can ask whatever you want. No ruling. It makes submitting your questions pointless, though every other judge in the jurisdiction orders you to do it in advance. 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 … Read entire article »
Being Present
In yoga, the focus is often on being present. It’s about understanding what’s going on but not judging. You should feel what your body is doing as you stay in the moment. 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 … Read entire article »
Filed under: Trial
Trogdor!
Figuring out when and to what extent to involve a client in the inner workings of a trial can be tricky. It’s his life and they’re his objectives, so you obviously can’t ignore him. He should know what’s happening and at times even have a say in what you do, but you also shouldn’t spend all of your time leaning over explaining why you can’t use your peremptory strike on the prosecutor or why the prosecutor’s “prejudice against gang-bangers” doesn’t bring up equal protection issues. Like pretty much everything in the world of criminal defense, it’s all about balance and exercising well-reasoned, independent, professional judgment in the midst of the institutional chaos of trial. Voir dire is a time when client input seems most important to me. … Read entire article »
Less is More
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 … Read entire article »
Filed under: Trial
Details
Jeff Gamso put up a post today that included, among other things, a portion of a detailed log about what one death row inmate did prior to his execution. For example, at 10:50:23, he asked for grape soda. At 10:55:36, he requested a “special meal” of a T-bone steak with A-1 steak sauce and a “Chief” salad with blue cheese dressing. 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 … Read entire article »
Filed under: Trial
"Cloaked in the Shroud of Innocence"
For the most part, Arizona superior court judges instruct juries from the same basic set of instructions. Cases will have additional, different instructions depending on things like the relevant statutes, the facts of the case, and whether there are any lesser included offenses or special defenses involved, but most instructions are the same from one trial to another. There may be little variations, as many seasoned judges do them from memory or get bored reading verbatim, but any lawyer who tries a lot of cases is going to notice right away if a judge isn’t following the typical script. 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 … Read entire article »
Losing at Trial
Last week, a jury found my client guilty of three counts of dangerous crimes against children. I sat next to him in court as the clerk read the verdict, and he broke down before the clerk made it through the second count. He knew he would spend the rest of his life in prison. 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, … Read entire article »
Filed under: Clients, Practice in General, Trial
Preparing for Trial
I spent a good bit of my weekend preparing for trial. It’s a draining experience, though not nearly as draining as trial itself. This particular trial has very high stakes. My client’s earliest release date will be more than seventy years from now if he’s convicted. 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 … Read entire article »
Filed under: Practice in General, Trial
"Looks Like I'm Out of Judges"
I haven’t been blogging because of my schedule. Too much work, not enough time. The end is in sight though. Or rather, the end was in sight. I was supposed to start a six or seven day felony trial this morning, and my schedule looked pretty bearable after that. 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 … Read entire article »
Gotcha!
May 27th, 2010 | 3 Comments
When I was in law school, I was fortunate to attend many hours of public defender training. I can still clearly remember the cross-examination teacher describing his technique for impeaching a witness. He recommended something called “the 3 Cs.” The 3 Cs stood for “commit,” “credit,” and “confront.” I don’t know if it’s his thing or something widely known to trial lawyers, but it’s a pretty solid, general approach to impeachment. 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 … Read entire article »
Filed under: lawyers, Trial