Wednesday, June 17, 2009

Through the Legal Looking Glass: Special Story Telling Edition

Next week’s Legal Looking Glass column will explain how to pick an attorney. . . but that will have to wait. Today’s Special Edition column arises because Lawhawk’s excellent post yesterday brought to mind three stories you might enjoy:

1. Jury See, Jury Do

One of the most important aspects of being a trial attorney is realizing that the jury is always watching you. Whatever you do, the jury is looking to you for signals to help them understand what is going on.

If you are happy, they know you are winning. If you are frustrated or angry, they know things aren’t going so well for you. Treat your client with contempt and they will too. But most importantly, the more intensely you pay attention to a witnesses, the more interest they take.

This really hit home during my first Federal jury trial, when I watched the jury perk up every time I did. Realizing what was going on, I decided to give my theory a little test. As the other attorney started plowing into the heart of his case, I calmly set down my pen, folded my arms, and leaned back in my chair. I let my eyes slowly roam the room, before staring blankly at the ornate ceiling.

Now don’t get me wrong. . . I was listening carefully to every word. You have to. During a trial, your mind literally runs at 100% during the entire day, but I wanted the jury to think that I didn’t care. Sure enough, the jury took their cue from me. Only a crazy man would zone out during something important, right?
Within a matter of minutes, half the jury had tuned out and was doodling on their note pads. The rest were looking around the room aimlessly. Not one of them was listening to the testimony.

Dirty trick? Perhaps, but that’s part of the trial game.

2. How To Lose Friends And Dissuade People

As Lawhawk mentioned yesterday, objections are rarely discussed before the jury. If the parties need to argue about an objection, the judge asks them to approach the bench. Someday we’ll get into what it is you don’t hear when this happens, but, suffice it to say, that the parties argue with each other and the judge, and some of these arguments can get quite heated.

In another of my trials, I was faced with a very aggressive opposing counsel. It was clear that the jury wasn’t too thrilled with him already, but they hadn’t quite crossed that line yet where they would hold his conduct against his client.
At one point, he raised an objection and asked for permission to approach the bench to argue the point. Upon arriving at the bench, the judge immediately overruled his objection. This started an argument between the attorney and the judge -- a very kind, well respected man that you just couldn’t help but like. Soon both were turning red with barely contained rage and where wagging fingers in each other’s faces.

That was when I realized that I am indeed a better door than a window, and that I was preventing the jury from see the attorney’s antics. So I bent over to tie my shoelaces, giving the jury the full view of this guy laying into the judge, and the judge’s very angry response.

By the time we returned to our tables, the jury hated him, and that colored everything he said.

3. Silence Is Golden

Finally, you should realize that from the moment you pick a jury until the verdict is given, you are under a spotlight. Indeed, you need to be careful how you dress, what you say and how you behave -- both inside and outside the courthouse.

While the parties are strictly prohibited from speaking to jurors outside of the courtroom, it is not at all uncommon to end up at the same restaurant as several jurors or to see them as you park your car. Thus, a good attorney tells their client how to behave at all times until the trial is over. Key among these instructions, keep your mouth shut until we are somewhere private.

Sounds obvious right? It’s not. I have seen several instances where trial attorneys berate their clients (or vice versa) over lunch, only a few feet away from amazed jurors, or in the courtroom hallways, as jurors eavesdropped just around the corner. The jury is told not to consider what they hear outside of the courtroom, but seriously. . . how do you forget an angry attorney telling his client, “you blew it”?


StanH said...

Keeping your mouth closed and listen is always a good idea. A lot of the things that you are talking about are true in sales as well. I’ve seen many a lad talk themselves out of a sale when you get a yes shut up. This relates to you and your sidebar with the pissed off attorney, he lost the sale (jury) at that point. In the grown up world theater is part of the game, it’s not a dirty trick it’s a sign of maturity. These essay’s that you and Lawhawk are writing are pertinent to life, the court room is a microcosm of humanity, and the way an attorney conducts him or herself are useful in business and life.

Writer X said...

Sounds like very often it's not what you say but what you do that matters. Very interesting.

Another favorite of mine is when a defendant, who in his mug shot looked like Charles Manson, but then in court he looked like a reincarnated alter boy. Although there's no makeover that could have helped that Phil Spector guy...

AndrewPrice said...

Stan, you're right, this does relate to a lot of other professions. Being a trial attorney is a lot like being a salesman. You need to listen to all the signs, verbal or otherwise, that a jury or judge gives you, and you need to taylor your message accordingly.

One thing many bad attorneys have in common is that they love to hear themselves talk so much that they never listen to the judge or the witnesses, etc. And they can talk themselves right out of "sales."

Writer X, It is difficult to sway a juror or a judge with good behavior, but you can absolutely turn them off with bad behavior. You can push the envelope farther than most people would believe, but there does come a point where you've simply gone too far.

What people wear to court is worth a whole other article. You would be STUNNED to hear how many DUI suspects show up in jeans and t-shirts, reeking of beer, or how many people who show up looking like hookers/pimps.
it is very often how you act.

LawHawkSF said...

Andrew: Despite myself, I recently started watching a new basic cable TV show called "Raising The Bar." Typical lefty stuff. All criminals are innocent. Every cause is noble. Public defenders are brilliant. But there was one great moment in the last episode. While the prosecution and defense were questioning the prospective jury panel, one juror was asked why he kept looking at the prosecutor even while the public defender was asking his questions. The prosecutor was dressed immaculately, well-groomed, and dignified. The public defender wore a mismatched sport coat and slacks, had long, oily stringy hair, a disheveled tie and unpolished shoes. The juror explained why he was watching the prosecutor instead of the defender as follows: "He looks respectable--you don't." That day, the p.d bought a good suit, new shoes, better tie, and got a haircut. He won the case, of course, but at least a lesson was learned.

patti said...

when a judge tells the jury to disregard a statement already made....that's also hard to forget. how does one scrub that from their brains?!

LawHawkSF said...

Patti: Every lawyer who has ever gotten one of those questions and answers out before the objection has the same comment: You can't un-ring a bell. Motions to strike the testimony are for appeals, but if the jury heard it, the sustained objection usually just reinforces the answer in the jury's mind. Particularly if the answer was unusually juicy.

AndrewPrice said...


There are tricks. First, you ask the judge before the trial to prevent that kind of testimony. That puts the witness/attorney on a tighter leash.

Second, you try to object during the question to stop it getting out.

Third, you try to assert the objection in a way that doesn't tip off how important it was -- for example, you act bored when you make the objection.

Fourth, if they still get it out, you ask the judge to instruct the jury not to consider it. That doesn't take it out of people's heads, but it makes it harder for anyone on the jury to use it during their deliberations.

Lawhawk, I've given up on all legal shows. It's pure fantasy to me.

Tennessee Jed said...

Love to hear your thoughts on a legal issue from today's headlines. UT grad and professional football star John Stallworth was sentenced to 30 days in jail, community service and several years of probation, plus lifetime suspension of his driver's license for vehicular manslaughter while D.U.I. He paid an undisclosed amount to the family of the man he killed. To his credit, Stallworth did not flee the seen, called 911 and totally cooperated with police. All in all, that's not a bad result in my mind. However, can he just get a license in a different state? Given his wealth, he was able to pay a large amount to the family (not a bad thing, but they did in turn state their desire to put it behind them.) My concern is, if a man without resources acted exactly the same way, would he get as good a deal in terms of virtually no jail time? This all gets to the issue of buying a more favorable sentence.

Tennessee Jed said...

Personally, I couldn't get into Raising the Bar. I do, however, remember some pretty interesting civil case issues on the old L.A. Law show. As an insurance guy, I remembered one particular case where Jimmy Smits' character defended a pajama maker in a products case brought on behalf of a young boy who was badly burned in a fire. The famous plaintiff's attorney also happened to be a midget (which he used to full advantage.)

My recollection at the time was that it really did a nice job of portraying the dilemma involved; e.g. feeling sorry for a horribly scarred 8 year old vs. the fact the manufacturer was not really negligent. (the kid was playing with matches and the pajamas met all standards for being flame retardant. Of course the plaintiff won the case through his skill rather than on the merits.

AndrewPrice said...


This isn't legal advice (and I haven't researched it), it's just my views on the news -- so don't rely on it.

I don't know that Stallworth's sentence is all that unusual. Indeed, the sentence is probably not a bad deal for either side.

First, keep in mind when assessing any deal that the prosecutor has to be able to prove the case. In this instance, the pedestrian wasn't in the cross walk and supposedly jumped out in front of the vehicle. That's a difficult case to prove, so the defendant is likely to get a good deal.

Proving the DUI should be easy, but DUI is routinely pled down. In most places, your first DUI gets pled down to reckless, with just a fine. The next DUI often ends up with a minor jail sentence that is usually suspended, plus some temporary loss of license (like 90 days). It's the third one where things start to get serious, and you do jail time (6 months to several years), plus the "permanent" loss of license.

So if this was just a DUI or second DUI, then the deal would be horrible. But, when you combine DUI with a death, you get a vehicular manslaughter charge that can jack the sentence up considerably -- if it can be proven. Since proof would have been difficutl in this case, a good deal was likely. 30 days (probably really 15) with a couple years probation is not a bad deal for either side in those circumstances, and is probably what you or I would get with an experienced lawyer.

On the license, it used to be that you could move to another state and no one would know. But now there is a computer system that links all but 2-3 states. If you are suspended or revoked in one state, the others won’t issue you a license until you "resolve the problem" back in the old state.

That said, "permanent" doesn't really mean permanent. In most states it means 1-2 years. Also, you can often start driving again sooner if you get a device installed in your car that checks your breath for alcohol before the engine will start.

Skinners 2 Cents said...

I had to laugh a little after reading about Andrews Pavlovian jury. It's oddly funny yet a little scary at the same time.

To watch people conditionally respond to things with out communication, helps bring into focus why the MSM had been so successful for so long.

Unfortunately to many people are like sheep that can be led without a word being spoken.

AndrewPrice said...


It highlights one of the problems of the human condition -- we rely too much on others to tell us what to think.

Don't get me wrong, juries really are conscientious and thoughtful, despite what you hear in the media. But they can be swayed. So imagine how easy it is to sway people when they aren't paying careful attention.

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