“Do You Talk to Much Before Trial?”
“Hey, I don't know if you noticed this or not, but there's a significant problem with your case. If you don't do something to fix it, you're guaranteed to lose. But if you can fix it, your chances of winning willdramatically improve. Do you mind if I tell you what the problem is?”
If someone made that offer to you, your immediate reaction would probably be, “Yes, please tell me what's wrong!”
What's surprising is that every day in courthouses around the country, lawyers regularly make offers like that to their opponents and don't even realize it. For example, many years ago, I was the prosecutor handling a “Possession with Intent to Sell” narcotics case. It was a simple possession case (the drugs were found in his pocket), but the defendant insisted that he wanted a trial. I wasn't the first prosecutor assigned to the case. A previous prosecutor had actually tried the case, but the jury had hung 5-1 in favor of “Guilty” so the case had been reset for trial. In the meantime, that prosecutor left our office, so the case fell into my lap. On the day of trial, several other cases on the docket seemed far more important than this one, so I offered the defense attorney a misdemeanor plea offer in hopes that we could resolve it and move on to more important cases.
“Oh no, that's not gonna happen,” the attorney replied, “He wants his day in court.”
That seemed greedy to me, because technically, he'd already had his day in court, and now he was insisting upon a second day, but rather than say anything, I decided to bite my tongue and let the attorney continue talking. He proceeded to tell me what a wonderful attorney he was, how strong his case was, how weak my case was, and then, best of all, he started bragging about how great a job he'd done in the last trial: “The last time we tried this case, your predecessor called three witnesses, and that third guy didn't even know what hit him. My cross-examination destroyed his credibility. By the time I'm done cross-examining him today, this courtroom is going to be littered with reasonable doubts. I can't wait to get my hands on that guy again!”
The urge to interject during his tirade had been nearly overwhelming, but I continued holding my tongue until he'd wrapped up, then politely excused myself to make some last minute preparations for trial.
Jury selection proceeded without incident, and a short while later, we proceeded to opening statements. I delivered a perfunctory opening statement (“Drugs... Him... Possess... Thank you”) and sat down. After he concluded his opening statement, I called my first witness, who testified that he'd found a large quantity of suspected drugs in the defendant's pockets and that the drugs were packaged for sale, rather than personal use.
After he was cross-examined, I called a drug analyst to the stand, who testified about her work in the drug lab and confirmed that the items in evidence were actually narcotics. Her cross-examination was brief, so I decided to waive my re-direct examination. As she stepped down from the witness stand, I saw that the other attorney could barely restrain himself. This was the moment he'd been planning for -- the opportunity to rip the next witness to shreds!
Once the lab analyst witness left the courtroom, the judge turned to me and said, “State, please call your next witness.”
Rising from my seat, I addressed the courtroom in a loud, clear voice: “Your Honor, that concludes the presentation of the State's evidence, and the State rests its case.”
The defense attorney's jaw hit the table in shock. He rushed to sidebar and, in a flabbergasted tone, said, “He... He can't do that! I planned my entire case around cross-examining that third witness! What am I supposed to do now?!?”
Volumes could be written about the arguments that followed, but those are stories best shared at some other time, perhaps over a cold beer. Suffice it to say, his case had been torpedoed.
There are two important lessons you need to take away from this story. The first is this: Don't brag or boast about your case strategies or the strengths and weaknesses of your case.
One of the reasons he lost the case was because of his tremendous ego and his need to boast. When he told me that he'd destroyed the third witness during the previous trial, I re-examined my case plan. I asked myself, “Do I really need to call this witness? How much does he add to the case, compared to how much damage he'll inflict?” I decided that the minor amount of useful information he'd add to the case wasn't worth the nightmare, and I decided not to call him. If the other's lawyer's ego hadn't pushed him to brag and boast about the case, things might have turned out completely different.
Beware of falling into the same trap.
Since you're a trial lawyer, your ego is larger than most. It's nothing to be too embarrassed about -- all lawyers have egos. Trial lawyers' egos are even larger than most, because we live in the high stakes world of “win or go home.” We hate to lose, we love to win, and when we do a great job, we want to tell everybody else what we've done. It's okay to brag, but unfortunately, some lawyers don't know when to shut their mouths!
To avoid the problem and protect your clients, take a quick history lesson.
Back during World War II, the War Advertising Council and the Office of War Information (back in the '40's, federal agency names weren't as cute or cryptic as today's agency names, were they?) created a series of public service ad campaigns designed to remind Americans about the importance of preventing restricted information from being leaked to the enemy. The campaign was so successful that one of the catchphrases has become part of the American lexicon. Even if you weren't alive when the campaign originally ran (1942-1945), you're probably familiar with the phrase: “Loose Lips Sink Ships.” The lesson was simple: be discreet in your communications, especially when you don't know who might be listening.
But before you're tempted to reprint the posters and post them all over your courthouse, think about the second lesson from the story: Keep your ears open and listen.
Your opponents probably love to brag about the strengths of their case or the weaknesses in your case. Next time, rather than disagreeing with them, quietly listen to what they're saying and encourage them to boast. Play “dumb as a post” and see what they say. As the great Yogi Berra said, “You can observe a lot just by watching.” Don't get drawn into an argument with them trying to justify the strength of your case or dispute the strength of theirs. If they try to pick a fight, just give them noncommittal responses like, “You may be right,” and let them continue boasting.
You're trained to battle in the courtroom, so it won't be easy to suppress your natural instinct to respond in kind, but it's something you'll have to do. Then, after they've finished boasting, find a way to shore up your weaknesses or better prepare for their strengths. If you do that, then you can brag and boast when it really matters... Afteryou've won your case!
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