Thursday, July 17, 2009
Page 11
THE LEGAL COMMUNITY:
Litigation: What Makes a Good Trial Lawyer?
By GISELLE M. FERNANDEZ
What makes a good trial lawyer? Is it connecting with the jury like a minister communicates with his or her congregation? In answering the question, it is important to know what a trial is.
Many lawyers see trial as a dry, analytical application of law to facts, but I disagree.
A trial is a living work of art involving human emotions and prejudices and should be treated as such. Only when an attorney realizes this can he or she be successful.
Prospective jurors complain when the jury summons arrives in the mail, but face it, many feel like they’ve come to watch Law and Order or CSI Miami in real life.
Legendary trial lawyer Clarence Darrow said, “The audience that storms the box office of the theater to gain access to a sensational show is small and sleepy compared to the throng that crashes the courthouse door when something concerning real life is laid bare to the public.” (How To Pick A Jury, Esquire May 1936 P. 1)
Darrow, a noted early 20th century attorney, said this because he knew people were enthralled with courtroom drama. He had some sensational cases, but sometimes the average case is not that sensational. Part of what one does as a trial lawyer is not only proving the case but getting the jury to care about it.
‘Subtle Art’
A case may appear to be easy or difficult but the final outcome hinges on the jury. “Since a case can go either way, ultimately what makes a good trial lawyer is the power of persuasion and the subtle art of manipulation,” says Assistant Los Angeles City Attorney Bernie Brown. The lawyer tries the case to the twelve in the box and to the judge.
Looking at the criminal complaint and the police report is only the beginning. A trial begins to take on a life of its own when the witnesses begin to testify. It’s like a script becoming a movie where one can see the expressions and emotions of the characters.
When a lawyer faces a jury, he or she is on stage and the jury will look at them from head to foot. What type of suit are they wearing? Too tight? Don’t laugh. Many post-verdict jury questionnaires often mention clothing.
An L.A City Attorney colleague of mine once complained that he lost a trial because a member of the jury didn’t like his suit! Never forget the maxim: As a lawyer picks a jury, the members of the jury are already picking their lawyer.
Clarence Darrow realized this when he said: “Choosing jurors is always a delicate task. The more the lawyer knows of life, human nature, psychology and the reactions of human emotions, the better he is equipped for the selection of twelve men good and true.” (Supra)
Believing in One’s Case
So, what makes the modern lawyer relate to the jury? It is bringing his or her own personal experience to the courtroom and breaking down legal terms in words that people can understand. It is believing in one’s case and putting emotion into it. It is the art of knowing people – the judge, opposing counsel, the witnesses and the jurors in the box.
Knowing the case helps, too. It’s important to distill a theme in presenting a case. “One is not just arguing the law but also fighting sympathies and emotions. An attorney can’t win by logic and evidence a case where public opinions are already formed,” says Judge Hank Goldberg, a former deputy district attorney.
Remember O.J. Simpson? Many people felt that the minority jury panel had such a bad opinion of the LAPD that they would not convict Simpson despite the amount of evidence against him. Johnnie Cochran was able to crystallize a theme of a police frame-up and the jury accepted this, despite the fact that most people outside the courtroom felt Simpson was guilty.
“Good trial lawyers are also good story tellers.” notes the Associated Press’ Linda Deutsch.
Patty Hearst’s Trinket
Take the criminal trial of newspaper socialite heiress Patty Hearst. Hearst claimed that she was brainwashed and forced to rob a San Francisco bank after being held captive by the Symbionese Liberation Army.
Although the jury’s impression of Hearst was initially favorable, the case turned against her when one of the prosecutors noticed that Hearst always wore a love trinket given to her by one of her captors. He argued that if Hearst had been a true victim, then why would she wear a love trinket? The result: Guilty. This was telling the story and bringing drama into the courtroom in a way that the jury could relate.
The art of relating is also important in asking the questions. For instance, in a DUI case, is it better for the jury to understand that someone had slurred speech or that they spoke as if they had marbles in their mouth? Never forget, lawyers are artists painting pictures with words.
An attorney is cautious but willing to take some risks during the examination of a witness. Generally a lawyer should never ask the “why” question if he or she does not know the answer. However, defense attorney Thomas A. Mesereau Jr. disagrees with this. He says: “If you never do certain things, you’ll never embarrass yourself but then you’ll never win either.” Mesereau, who successfully defended Michael Jackson, credits the success he had by asking Jackson’s accuser why he was angry with Jackson. When the boy couldn’t give a direct response, Jackson was acquitted. Ultimately the trick is in knowing when to do this.
The use of demonstrative evidence is also very important in being an effective trial lawyer. Tort pioneer Melvin Belli made a career of bringing models, charts, and physical objects to court. He did many outrageous things, including knocking over a table full of knives, exhibiting skeletons and parading a group of women without blouses in front of a jury in a breast implant case. Belli always said that a lawyer had to show the jury and not merely tell them what happened.
‘Make Me Care’
Another great trial lawyer echoes the same theme. “Don’t tell me the man was hurt and suffered a broken femur,” writes Gerry Spence. “Don’t say he suffered pain. Tell me what it felt like to have a broken leg with the bone sticking out . . . Tell me how it was! Make me see it! Make me feel it. . . Make me care! If I cannot care, I cannot make anyone else care.” (Gerry Spence, How To Argue And Win Every Time at pp. 130-131, St. Martin’s Press) One of the greatest things that a lawyer does is making people care.
So what exactly does it take to be a good trial lawyer? There is no one answer, but preparation, fine analytical skills, good people skills, demonstrative evidence and drama go a long way.
Perhaps Belli said it best when he noted the two key ingredients are imagination and initiative. A good trial lawyer has a feeling for clients, the desire to do them some good and the backbone to stick with them through thick and thin.
And as judges remind us, a little law on our side doesn’t hurt.
Copyright 2009, Metropolitan News Company