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» Trial

Getting in Their Heads

Eric Turkewitz at the New York Personal Injury Law Blog published a guest post about whether jurors should be allowed to ask questions at trial. Apparently that doesn’t happen in New York. It sure does here in Arizona, as we’ve heard about ad nauseam because of the Jodi Arias trial. The guest-poster, Peter DeFilippis, concluded that increased juror participation would aid their judicial system in achieving the goal of providing justice for all. I can’t say that I disagree. I am a pretty big fan of jury questions because they’re wonderful little spoilers that help you know where to focus. I can also see how they help to connect jurors to what’s happening. The insight into the jurors’ thoughts that a system like ours … Read entire article »

Filed under: Arizona Cases, Juries, Trial

Practicing Like a Performance

Roy Black wrote yesterday about practice. He discussed Steve Jobs and his obsession with preparation and practice, compulsively rehearsing for every presentation in order to make it look effortless. This is one of Roy’s suggestions for practicing: Take notes as you practice, stop immediately when you notice a mistake or an uncomfortable moment and correct it. Analyze and re-analyze your presentation as you go. Make staging notes like cutting down on time on certain parts, and how to enunciate tricky words and phrases. It strikes me that what Roy describes is certainly an important aspect of practice, but it’s really only half of one part of the big picture of effective preparation. Although I’m sure he does it in his own preparation, in his post, he never really explains … Read entire article »

Filed under: Trial

Food for Thought

A few Fridays ago, I spent the day in a very short jury trial. In that one short day, I was given more food for thought than I ever could have imagined. Between dawn and dusk, I strengthened a few existing beliefs, reconsidered many more, and even managed to drink a beer or two afterwards while trying to make sense of what happened. Here’s what I learned… You are entitled to a jury trial in an Arizona reckless driving case I initially told my client that I didn’t think he was actually eligible for a jury trial in a case involving a single count of class 2 misdemeanor reckless driving. I didn’t even believe he was actually going to get one when he showed me his hand-written pro … Read entire article »

Filed under: Prosecutors, Trial

Creativity

I’ve had creativity on the brain lately. Always looking for ways to improve the way I represent my clients, I’ve been tying to address my faults as a lawyer by emulating in my problem areas the way I approach those aspects of my job that I believe to be my strengths. Strangely, hiding behind every single thing I ever even arguably thought I did somewhat well was creativity. It turns out that most of the supposed talents I occasionally think I have are just symptoms of the underlying disease of an occasional abundance of imagination. I sucked at cross-examination five years ago. I was terrible. Prior to that, however, I vaguely recall performing what I thought was a great cross of a cop while I was … Read entire article »

Filed under: Practice in General, Trial

Are They Breaking The Rule?

About two and a half years ago, I wrote about the Maricopa County Superior Court running out of judges to preside over a client’s trial. It happened again yesterday, but in a different way. At 8:00 a.m., I went to the master calendar assignment judge’s courtroom. If the system was a game show, he’d be the host. He spins his wheel of fortune and assigns your case to the judicial officer who’s next in line. Until that point, you don’t really know who you’re going to get. For all practical purposes, the case is assigned to what I like to call the “Honorable Master Calendar” on my captions. It was a huge docket, and the judge began assigning cases. Unlike the last time I wrote about … Read entire article »

Filed under: Procedural Rules, Trial

Doing It All

I had a long weekend of work, but I’m ready for trial. The work I completed over the weekend wasn’t trial prep, though, because that was done long ago. I spent the weekend tying up loose ends. Trial is like a really shitty vacation. You have to make sure all your ducks are in a row so you can take some time off. Instead of dipping your toes in the water and watching a sunset with your adult beverage of choice in hand, however, you get to endure grueling combat all day every day for days on end. It’s a break from your daily stress during which you forget about your normal troubles in favor of some more pressing troubles. Did I mention that … Read entire article »

Filed under: lawyers, Trial

It Goes Both Ways

I was in trial this past week, so I didn’t have a lot of free time. I found myself working into the night to deal with things I couldn’t address during the day. I only had enough time during breaks to respond to the things that seemed the most urgent. One of those things was a frantic message from a prosecutor. She wanted me to call her back as soon as possible. I recently tried a case with her because the state wouldn’t budge one bit on the plea. My client faces the exact same thing right now having lost at trial that he would’ve gotten had he accepted the state’s offer. After three motions, a long evidentiary hearing, various oral arguments, a bunch of … Read entire article »

Filed under: DUI, Trial

Justice v. Efficiency

The criminal justice system is broken. Many judges are little more than prosecutors in robes. The courts fuss and fume when you need an extra week or two to make a decision. They push you into whatever plea comes your way. In Phoenix City Court, you usually spend the pretrial stages in front of a single judge. After you decide to fight it, though, they shuffle you elsewhere. The order says you’ll be going to trial in thirty days, but the court struggles to get you in front of a judge in sixty. You won’t know which judge you’ll get for fifty-nine. When everyone assumed you’d plead, they rushed you to a decision. After they realized you were going to fight, they stretched it out as long … Read entire article »

Filed under: Courts, DUI, Trial

Judge or Jury?

Apparently, a recent study has confirmed the findings of an older study: The researchers made three primary findings: Judges tend to convict more than juries in cases of “middle” evidentiary strength. Judges acquit more than juries in cases in which judges regard the evidence favoring the prosecution as weak. Judges convict more than juries in cases in which judges regard the evidence favoring the prosecution as strong. Here’s the conclusion: In sum, criminal defendants are benefited by opting for a bench trial when the evidence is weak, and a jury trial otherwise. It seems to me that the studies confirm what’s probably somewhat obvious to most lawyers who’ve tried any appreciable number of cases to verdict before judges and juries. Juries are unpredictable. I’ve had juries convict clients when I felt the state utterly failed to meet … Read entire article »

Filed under: Trial

Fighting Stupid With Stupid

A lot of my biker friends have a patch on their jackets that says, “if you can’t dazzle them with brilliance, baffle them with bullshit.” Apparently, the quote originates from W. C. Fields. In some ways, it’s great advice for a trial lawyer. People tend to be judgmental. They’re also easily confused. Those are usually characteristics that the prosecution can readily use to its advantage. People want to love or hate someone, and if the person on the stand doesn’t make sense to them, hate tends to be the default reaction. I can’t count how many times I’ve seen a prosecutor confuse a defense witness, and subsequently the jury, with idiotic questions. More often, the prosecution preys on the ignorance of the jurors writ large and … Read entire article »

Filed under: Trial

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