Is There Enough Justice To Go Around?
By Tom Adler
In spite of what my colleagues told me, it really wasn’t that difficult. After twenty five years of litigation, I had tired of the continual wrangling... the need to be smarter and tougher than my opponent... the need to win... the nights of being unable to sleep while my mind rehashed a perceived mistake in tactics or worse, a statute that had been overlooked... the dread that I felt when a jury came back into the courtroom to deliver their verdict and wouldn’t look at my client as they resumed their seats. It’s true... there were also some great times. Moments when I knew that it was only through my creativity and hard work that a client had been set free or that an injustice was exposed and made right. But in the last few years of my practice it seemed that it wasn’t as much fun and although I attributed it to burnout, it wasn’t only that. The system was changing. Individual rights didn’t seem quite as important as they once were. There was much more talk of the “system” of justice, how to make it more efficient, how to “move cases”. Judges were appointed that came out of administrative agencies who had never represented real people or fought for the underdog or taken up a cause just because it was the right thing to do. A sweeping assertion... perhaps, but it’s a feeling I had.
In the years since I’ve retired I’ve had occasion to think about the differences about the way judges and attorneys used to view the law and my perception of how that has changed. It can best be illustrated by a story which came to mind after a recent visit I made to the Court of Appeal.
As I passed through the metal detector, the muted colors and the expensive furnishings in the lobby coupled with the respectful silence exuded a sense of solemnity and security. This is one of the major hubs of the law where the injustices of lower courts are straightened out………where the playing field should be leveled for everyone. I started thinking about some of my own experiences in this court while I was in practice. Along the carpeted corridor leading to the courtroom were pictures of the Justices, past and present, who had meted out justice as they saw it. I wondered how and if it had changed. With the exception of those wearing celluloid collars, most of the faces were familiar to me. As I walked by the photos one of them in particular caught my eye. I stopped and stared at it and remembered. Here was the one who had early on given me the belief that the law could indeed be something magnificent. I stopped and stared and let my memory wander.
It was early in 1973. I’d been a lawyer less than a year and was learning the ropes as a staff attorney at the Defenders Program in San Diego. The head of the office was a fiery old Irish trial lawyer, Stan Conant, who didn’t try cases any longer but was content administering the office and trying to keep his flock of young attorneys from getting into too much trouble. He was widely respected by everyone in and out of the office as having tried 16 death penalty cases and losing only one. He never talked about the wins but often recalled the one he lost by recounting the moment that the jury filed into the courtroom with their verdict and all twelve were crying. Every time he told the story he had the same pained look on his face. He was a guy who really cared. The story always ended with his face breaking into a smile as he wryly said, “It was reversed on appeal”.
As for me, my first assignment was handling misdemeanors in the El Cajon Office. I was replacing an experienced attorney, Dave Devore, who greeted me at 8 am as I walked into the tiny cramped Defenders office on my first day at work. The entire office consisted of a small secretarial station behind which was a single windowless room which was shared by all three attorneys assigned to the office from Defenders. Dave was in a hurry to get to court so he invited me to look over the case files I would be taking over and said we’d get together for lunch. I never saw him again. On his desk were 110 case files with people charged with crimes I had never even heard of. Compounding the problem was the fact that there was no penal code in the office. After some thought and with a great deal of trepidation I phoned my new boss, Stan Conant, and asked him if I could get a penal code. There was a long silence at the other end and he finally said “Adler, I thought you were a sissy when I hired you” and the line went dead. So much for training.
After a year or so I was sent to Juvenile Court where the law was seldom mentioned or followed. I filed so many writs that the juvenile court judge talked Stan into transferring me to another division. So I was sent downtown, where the “real” lawyers were and was given a felony caseload. This was the big time! Although my law school dean had said in one of his early lectures that there wasn’t enough justice to go around I was determined to prove him wrong. One of my first cases was a black man charged with burglary. Although there was quite some evidence of his guilt I thought he was innocent and on the morning that the case was called for trial in the criminal presiding department I was ready with my newly polished shoes and high hopes. The presiding judge called my case and I was assigned to Department 5 for trial. Although nervous at the prospect of actually going to trial on my first felony I had heard that the judge in department 5 was a fair minded man and I knew from my discussions with other lawyers in the room that I could have done much worse. I conferred with my client who was in custody, met the judge in Department 5 and after a general discussion of the ground rules we started selecting a jury by late morning. It was right after lunch that the entire system was put to the test.
I was conducting voir dire in a cold sweat. Standing in front of all of these elderly people and asking them personal questions was something that would take me several more years to become comfortable with. The clerk’s phone rang very quietly and after a hushed conversation she leaned up and whispered in the judge’s ear. The judge then interrupted me and advised the jury that we were going to take a break. After they had left the room the judge, who indeed seemed to be fair minded so far, advised me that the criminal presiding judge had “recalled” the case and I was to report back to his courtroom and that the trial wasn’t going to go forward and that he was going to excuse the jury panel. My mind went blank…….nothing I had learned to date prepared me for this. I objected and was politely advised by the judge to "take it up with presiding".
As I walked back into the presiding department I caught a glimpse of the judge in his chambers looking at himself sideways in a mirror on the wall .He smoothed his graying hair with a rather self satisfied look on his face as though approving of what he saw and briskly entered the courtroom. The few remaining people rose as he entered and seated himself. Looking directly at me he said “Mr.Adler I understand your client is on probation. I've recalled the case from Department 5 and am assigning you to Department 8 for a probation revocation hearing based on the new charges. Should your clients probation be revoked I'm sure you'll be able to work out something with the DA and avoid the necessity of a jury trial". I could barely speak. I may have been new but I wasn’t entirely stupid. At a probation revocation hearing there was no jury and the standard of proof was minimal……..certainly not beyond a reasonable doubt. He was going to railroad my client to prison. Because of my limited experience I was unaware that this was a new procedure adopted by the presiding judge to "streamline" the caseload. After assigning my case to a trial department someone had told him my client was on probation.
I did the only thing I knew to do……."Your Honor I object!" "Your objection is noted Mr. Adler. Please report to Department 8" he tersely replied. I couldn't even think of the legal basis for my objection. I just knew it wasn't fair .I also knew that the judge in Department 8 was a notorious hanging judge who made short shrift of defendants and their lawyers. Dutifully, I went to Department 8 where the judge had apparently been alerted to the case. In calm and reasoned tones, which I later learned was how he avoided appearing the crazed lunatic he was, he explained that since the DA and I were prepared to try the same facts that the revocation was based on that he would set the revocation hearing in two days. It all sounded so reasonable. So orderly. So efficient. So unfair. By now my doubts about what to do were giving way to anger.
I returned to my office and asked to speak to my boss Stan. I was still in awe of him and somewhat nervous as I explained what had happened. He mumbled something about that "son of a bitch" and after some commiseration he and I went to see the presiding judge of the entire court. Now I was really getting nervous. This was the big cheese! He ushered us into chambers and I sat and listened as Stan explained what had happened to me. The Presiding Judge was courtly and friendly and with a faint hint of apology in his voice stated that he was unable to interfere with a fellow judge’s decision and sent us on our way. By now I had a real sinking feeling in my stomach……..the same one I had many times thereafter whenever my sense of justice had been offended.
I went back to my office and brooded all afternoon. I looked for some law on the issue. There wasn't any at that time. It was close to 5 pm and I thought about a writ but there wasn't much time. By now my feeling of helplessness had turned to anger and I decided to take action. I called the Court of Appeal and asked to speak to a justice. The clerk asked which one and I told him anyone, it didn't matter which one. After all I didn’t know any judges. Slightly suspicious, the clerk asked me what I needed. I explained that I was a lawyer and had a serious problem with an order of the superior court and I needed to have it resolved soon. The clerk, sensing a rookie on the line, politely explained that the court could not act in the absence of some type of paper work, a fact which became clearer over the ensuing years.
That night I stayed up late preparing a hand written habeas corpus form setting forth what had happened. I had no case law since there was no comparable case that I could find and my reasoning abilities were clouded with an overriding anger. At 8 am the next morning I walked through the doors of the clerk’s office at the Court of Appeal, my sad pile of papers in hand and gave them to the clerk. He stamped them received and I sat down in the waiting room. After several minutes the clerk asked me if there was anything else he could do for me and I replied "No, I’m just waiting for the court to act on my petition”. He smiled to himself and said "Mr.Adler it doesn't work that way. The court will either deny the petition or ask for a response. Either way it will take at least a few days and possibly much longer". I thanked him and said "That's OK but I'm just going to stay here until something happens" and continued to read my magazine. After all, I had nothing else to do since my trial had been called off and the probation revocation hearing wasn’t until the following morning. The clerk disappeared and I had thoughts that he had gone to summon the State Police but rather he returned and calmly continued his duties.
Around 11 am the door to the waiting room opened and a man in shirtsleeves and tie emerged carrying a piece of paper. I later learned that this was Justice Ault. He approached me and said "Are you Mr.Adler?" Not knowing who he was I replied "Yes”. He handed me the paper and said "Here's your order. Good luck” and turned and went back through the door. Incredulously, I read the brief order.
"The order of the Superior court in the above case recalling the trial and setting a probation revocation hearing is reversed. Trial in this matter is to commence forthwith in Department 5.” Ault, J
I was stunned by how direct the order was and how it was within the power of one appellate judge to make something right. Maybe there was enough justice to go around! It was a feeling lawyers only get a few times in their career……..a complete vindication concerning a real injustice. I raced back to the Superior courthouse. The presiding criminal judge had already gone to lunch so I left a copy of the order with his clerk and walked down to Department 5 where two attorneys were already selecting a jury in another case. The room was packed with potential jurors. I motioned for the bailiff and whispered to him that I had an order for the judge. The bailiff took the order to the clerk who read it and handed it to the judge.
I thought I detected a slight grin on the judges face as he said "Well, ladies and gentlemen I have received an order from a higher court that I am to start another case immediately and therefore I'm going to have to declare a mistrial in this case and send you back to the jury room”. The lawyers looked at each other, shrugged and started to pack their briefcases. "Mr. Adler, will you be prepared to proceed at 1:30?" the judge inquired. "Yes sir", I replied. I left the courthouse elated, eager to tell Stan and my colleagues what had happened. But there was more to come.
At 1:30 I arrived in Department 5 ready to start my jury trial. As I walked into the room the bailiff motioned me over and told me I was wanted in Department 8. I quickly walked down the hall and entered the lunatic’s courtroom. He was on the bench ready for me “Mr. Adler I understand that the probation revocation matter set for tomorrow has been taken off calendar so I will reschedule it for two weeks from today. Your trial should be over by then”. As ignorant as I was I knew what he was doing. There would be payback time for going to the Court of Appeal and he wanted to make sure he kept personal jurisdiction over the case rather than it being reassigned to another judge. Now although I knew what he was doing, I didn’t know any legal basis for objecting (which seemed to be becoming a disturbingly regular phenomena) so I mumbled a few perfunctory objections which he smilingly overruled.
All afternoon as we picked the jury I couldn’t help thinking about the lunatic in Department 8 waiting in the weeds to get his revenge. I went home that night and put pen to paper again and by early morning I was at the Court of Appeal as they opened the doors at 8 am and handed the same clerk a similar sad pile of papers without any authority cited in which I railed against the injustice. The clerk sardonically asked, “Are you going to wait Mr. Adler?”. “No” I replied, I’m in trial” and proceeded to drag myself over to the courtroom where we finished jury selection and took a morning break before opening statements. My mind was completely preoccupied with what I was going to say. After the break I walked into the courtroom. The judge was in shirtsleeves talking to his clerk. “Mr. Adler it looks like we’ve received another order from the Court of Appeal”. He walked over to me and handed me the order. It was short and to the point:
“The order of the Superior Court setting a probation revocation hearing in this matter is vacated. The Superior Court is directed to take no further action in the revocation proceeding pending further order of this court” Ault, J
Three days later my client was acquitted of all counts and was released from jail. There was no need for a revocation hearing. Years later, at a social gathering, I ran into the Presiding judge who had ordered the trial to stop. He walked over to where I was standing and said in a somewhat pained and awkward, yet magnanimous voice, “Mr. Adler do you remember that case where you got me and (the lunatic) reversed twice in two days?” “Yes, I believe I do” I replied in a manner sufficiently sarcastic to convey self satisfaction yet remaining respectful to his office. “Well I’ve often meant to tell you that I didn’t like it, but I’ve always respected you for doing it”. I thanked him and forever after that day I had more respect for him also. Funny how that works.
But I digress from the true story which isn’t about the lunatic or the Presiding judge or me or the client. It’s about Justice Ault. He knew the lunatic and he knew what was going on. He didn’t need any blue briefs with ribbons and tables of authority to know what his job was. He was the gatekeeper between right and wrong and he wasn’t afraid to exert the weight of his office to see that it was done. The original intent of the framers of the due process clause was not an intellectual exercise to him when I came in with my pathetic pile of papers. He didn’t fret over the niceties of whether an alternative or a peremptory writ was in order or the fact that my brief wasn’t typed. He looked through the facts and decided that what happened was wrong.
The feeling that those two orders gave me stayed with me for the rest of my practice and gave me hope that an attorney could make a difference. There is such a thing as justice. It just requires a good judge and someone to make it happen. In today’s technocratic “system” oriented approach to justice I think it’s harder to find judges that will rule from their gut once in awhile. It’s antithetical to the way we think and besides we want judges who will “follow the law and not make their own rules”. But somewhere there is a tension between the concept of following the law and doing justice. If Justice Ault had ruled that my petition was “premature” or hadn’t specifically ordered the trial to commence in Department 5 or had allowed the probation hearing to remain on calendar he would have been following the law. But in making the orders he did he not only followed the law but in addition he also meted out justice. The orders said, sub silentio, “Stop messing around with this new lawyer…let’s see what happens at trial and don’t put him under the pressure of thinking about facing the lunatic if he loses”. It affected the way I practiced law over the next twenty five years and I always kept an eye out for the judges who had the same sensibility i.e. to do the right thing.
So I posit the question I started with. Is there enough justice in today’s court “system” or is it all just following the law? You tell me. I’m retired.
©2005 Tom Adler
Thursday, June 15, 2006
Let It All In
By Tom Adler
Lawyers have a host of stated reasons for practicing law and I think I’ve heard most of them. First there is the oft repeated, “I get a lot of satisfaction out of helping people”. This usually comes from the most high-minded in our profession--- those who become presidents or board members of our ever increasing number of bar associations. Then there are those who are enamored of the intellectual challenge of the practice. These lawyers are, in status, slightly below those who like helping people and are generally looked upon as strange ducks by yet a third group of my brethren; those who enjoy the ability to makes lots of money. In truth all of those things were a consideration for me becoming and remaining a lawyer. But, if the truth were told, the main driving force---the thing that kept my juices flowing---the raison d’etre for arising in the morning was, simply stated, lunch and war stories. I suppose that’s a sad commentary, yet after all is said and done, sitting around with friends in the law, breaking bread and weaving remembrances of courtroom battles is the most fun of all. One of these skirmishes led me to adopt an entirely new way of looking at the rules of evidence and, in the process, perhaps even subject me to the ridicule of some of my colleagues and members of the bench ( the latter of which I was used to ).
The case was an unusual one. I was representing a horse trainer who was charged with neglecting a large number of horses in her keeping. My direct exam of my client revealed that she knew a great deal about horses and she testified that rather than using a veterinarian when the horses became ill, she treated them herself. After I was finished with my direct exam I settled into my chair feeling confident that she had made a good impression on the jury. The prosecutor rose to his feet and immediately bored in like a bark beetle.” Do you mean to say that you had the ability to diagnose the chronic leg problem that Blacky suffered from even though you couldn’t see it without an x-ray?” “Yes sir, I certainly could”, she replied with a self satisfied look. He immediately shot back, “Well how did you do that?” Undeterred she calmly said “I could tell from the way he was walking”. The prosecutor then turned sideways to her and smiling he faced the jury as if to signal them that he was close to killing his prey and asked slowly “And so that is the only way you knew that the horse had this rare condition?” In a voice now bordering on serene she replied “No”. .” Still facing the jury he curled his lip and said “So how else did you know?” In a voice that sounded strangely alien she replied “Because he told me”. I maintained my dead pan but my inner trial lawyer screamed “We’re going down in flames! What the hell did she say? What the hell is she talking about? Damage Control! Damage Control!”
The inevitable next question flashed into my mind at the exact same time that it came tumbling out of the prosecutor’s now victorious lips “And what exactly did he say”. Without a moments hesitation I leaped to my feet and with the most indignation I could muster blurted out in an appropriately wounded voice “Your Honor I object, that’s horsesay and counsel knows it!” There followed a memorable chambers conference in which previously unargued points of the hearsay rule were debated along with a lot of laughing. Although my client was acquitted I was forever tagged by the trial judge with the name “Mr. Ed”. What the hell. It’s the price you pay for zealous advocacy.
But the horse case started me thinking. Why do we have the hearsay rule or, for that matter, why do we have any rules of evidence (excuses to the late Justice Bernard Jefferson and, of course, Bernie Witkin)? Due to other less esoteric matters, like paying the overhead, this question was put on hold for a number of years until recently when I became involved in a lawsuit in Austria attempting to recover property stolen from my family by the Nazi’s. There was an important piece of evidence we needed and I asked my Viennese attorney if he thought we could get around the hearsay rule. He laughed and said there was no such rule nor for that matter was there any evidence code. Astounded, I asked how the court decided what evidence would be used. The answer? “Whatever the judge believes is true is used as evidence”. So I remembered the horse case and started thinking that it really made a lot of sense? Isn’t a trial all about what really happened as opposed to what can be proven according to some law commission’s rules? Maybe yes and maybe no. It all depends on who you talk to. Lawyers and judges will usually opt for the familiar structure of the rules. The public views it as a game and in large part they’re right. Maybe the answer is that there have to be rules of evidence but maybe it’s time to readjust our way of thinking about them.
Who thought up the hearsay rule with its myriad exceptions anyway? Lawyers of course. Because some lawyers thought it wasn’t fair to have somebody who isn’t around have their words repeated in court without cross examination we have the hearsay rule. Then some lawyer’s ox was gored by the rule and we started having seemingly endless exceptions to the rule. The more gored oxen the more rules. This patchwork of rules and exceptions were, supposedly, to insure that the truth came out or, stated another way, that untruths stayed out. I know, I know....witnesses could get on the stand and say anything they wanted to about what someone else said. But just think of all the cross examination that opens up that wouldn’t exist without the hearsay.
There are lots of other rules in the evidence code that are like vestigial organs in the body of law, like the rules regarding the admissibility of expert opinions. For the sake of creating collegial debate, I will go out on a limb and throw myself on the sword by proposing that the evidence code contain a total of three rules and I defy anyone to prove that they wouldn’t work.
EVIDENCE RULE 1
In a non jury trial all relevant evidence shall be admitted (within reason) which the trial judge believes may be true.
EVIDENCE RULE 2
In a jury trial all relevant evidence shall be admitted (within reason) which the trial judge believes is capable of being believed by the jury
EVIDENCE RULE 3
Expert testimony shall be admitted if the trial judge thinks it’s necessary and the expert knows what he’s talking about
But hold on, you say! Doesn’t this give an enormous amount of discretion to the trial judge? Yes it certainly does. But I ask…..so what’s new?
Well lunchtime has arrived and I’m off to trade some war stories and maybe get rid of a few more codes.
©2005 Tom Adler
Lawyers have a host of stated reasons for practicing law and I think I’ve heard most of them. First there is the oft repeated, “I get a lot of satisfaction out of helping people”. This usually comes from the most high-minded in our profession--- those who become presidents or board members of our ever increasing number of bar associations. Then there are those who are enamored of the intellectual challenge of the practice. These lawyers are, in status, slightly below those who like helping people and are generally looked upon as strange ducks by yet a third group of my brethren; those who enjoy the ability to makes lots of money. In truth all of those things were a consideration for me becoming and remaining a lawyer. But, if the truth were told, the main driving force---the thing that kept my juices flowing---the raison d’etre for arising in the morning was, simply stated, lunch and war stories. I suppose that’s a sad commentary, yet after all is said and done, sitting around with friends in the law, breaking bread and weaving remembrances of courtroom battles is the most fun of all. One of these skirmishes led me to adopt an entirely new way of looking at the rules of evidence and, in the process, perhaps even subject me to the ridicule of some of my colleagues and members of the bench ( the latter of which I was used to ).
The case was an unusual one. I was representing a horse trainer who was charged with neglecting a large number of horses in her keeping. My direct exam of my client revealed that she knew a great deal about horses and she testified that rather than using a veterinarian when the horses became ill, she treated them herself. After I was finished with my direct exam I settled into my chair feeling confident that she had made a good impression on the jury. The prosecutor rose to his feet and immediately bored in like a bark beetle.” Do you mean to say that you had the ability to diagnose the chronic leg problem that Blacky suffered from even though you couldn’t see it without an x-ray?” “Yes sir, I certainly could”, she replied with a self satisfied look. He immediately shot back, “Well how did you do that?” Undeterred she calmly said “I could tell from the way he was walking”. The prosecutor then turned sideways to her and smiling he faced the jury as if to signal them that he was close to killing his prey and asked slowly “And so that is the only way you knew that the horse had this rare condition?” In a voice now bordering on serene she replied “No”. .” Still facing the jury he curled his lip and said “So how else did you know?” In a voice that sounded strangely alien she replied “Because he told me”. I maintained my dead pan but my inner trial lawyer screamed “We’re going down in flames! What the hell did she say? What the hell is she talking about? Damage Control! Damage Control!”
The inevitable next question flashed into my mind at the exact same time that it came tumbling out of the prosecutor’s now victorious lips “And what exactly did he say”. Without a moments hesitation I leaped to my feet and with the most indignation I could muster blurted out in an appropriately wounded voice “Your Honor I object, that’s horsesay and counsel knows it!” There followed a memorable chambers conference in which previously unargued points of the hearsay rule were debated along with a lot of laughing. Although my client was acquitted I was forever tagged by the trial judge with the name “Mr. Ed”. What the hell. It’s the price you pay for zealous advocacy.
But the horse case started me thinking. Why do we have the hearsay rule or, for that matter, why do we have any rules of evidence (excuses to the late Justice Bernard Jefferson and, of course, Bernie Witkin)? Due to other less esoteric matters, like paying the overhead, this question was put on hold for a number of years until recently when I became involved in a lawsuit in Austria attempting to recover property stolen from my family by the Nazi’s. There was an important piece of evidence we needed and I asked my Viennese attorney if he thought we could get around the hearsay rule. He laughed and said there was no such rule nor for that matter was there any evidence code. Astounded, I asked how the court decided what evidence would be used. The answer? “Whatever the judge believes is true is used as evidence”. So I remembered the horse case and started thinking that it really made a lot of sense? Isn’t a trial all about what really happened as opposed to what can be proven according to some law commission’s rules? Maybe yes and maybe no. It all depends on who you talk to. Lawyers and judges will usually opt for the familiar structure of the rules. The public views it as a game and in large part they’re right. Maybe the answer is that there have to be rules of evidence but maybe it’s time to readjust our way of thinking about them.
Who thought up the hearsay rule with its myriad exceptions anyway? Lawyers of course. Because some lawyers thought it wasn’t fair to have somebody who isn’t around have their words repeated in court without cross examination we have the hearsay rule. Then some lawyer’s ox was gored by the rule and we started having seemingly endless exceptions to the rule. The more gored oxen the more rules. This patchwork of rules and exceptions were, supposedly, to insure that the truth came out or, stated another way, that untruths stayed out. I know, I know....witnesses could get on the stand and say anything they wanted to about what someone else said. But just think of all the cross examination that opens up that wouldn’t exist without the hearsay.
There are lots of other rules in the evidence code that are like vestigial organs in the body of law, like the rules regarding the admissibility of expert opinions. For the sake of creating collegial debate, I will go out on a limb and throw myself on the sword by proposing that the evidence code contain a total of three rules and I defy anyone to prove that they wouldn’t work.
EVIDENCE RULE 1
In a non jury trial all relevant evidence shall be admitted (within reason) which the trial judge believes may be true.
EVIDENCE RULE 2
In a jury trial all relevant evidence shall be admitted (within reason) which the trial judge believes is capable of being believed by the jury
EVIDENCE RULE 3
Expert testimony shall be admitted if the trial judge thinks it’s necessary and the expert knows what he’s talking about
But hold on, you say! Doesn’t this give an enormous amount of discretion to the trial judge? Yes it certainly does. But I ask…..so what’s new?
Well lunchtime has arrived and I’m off to trade some war stories and maybe get rid of a few more codes.
©2005 Tom Adler
Wednesday, June 14, 2006
Closing Argument in a Criminal Case - Dinosaur Secrets
By Tom Adler
Since retiring from the practice of law I have lived under the delusion that I learned things worth sharing with up and coming trial lawyers. This has led to some embarrassing moments for my wife who overhears the whispers at parties “Why doesn’t he just give it up already?” But I like my little fantasy. It makes me feel connected to the new lawyers who probably know more about any subject than I ever did. Such is the curse of the dinosaur; I must go on spreading the seeds of my wisdom and annoying people at parties. To those victims I ask for forgiveness and say… “Deal with it”.
SWEATY PALMS
So the last witness has testified, the evidence is in and you and the DA have rested. It’s only 2pm and the judge wants to start argument after a 10 minute recess. Before you on counsel table, sits a mass of jumbled papers which you swore you’d keep organized during the trial. Moisture forms on your upper lip as you ponder the 30 minutes the judge has given you to commence your final argument. Your first instinct is to go over everything that happened with the jury---after all they don’t know the case the way you do. You don’t want them to forget anything - Big mistake. Between them, they will remember things you have forgotten and things you’d like to forget and reason out problems that you may never have thought about. Your job is not to go over everything. Your job is to make persuasive sense out of the facts that you need to win.
Since attorney’s notes taken during trial generally track the chronological appearance of the witnesses there is a tendency to rehash the facts, witness by witness, during closing argument. This is generally also a mistake. It insults the jury’s intelligence regarding remembering the facts, it bores the jury and doesn’t result in a persuasive presentation of your defense theory.
Closing argument should start to be formulated during the first client interview and should consist of a theme and perhaps sub-themes. What was it that initially struck you about the case favorably? In criminal law sometimes there’s not much, but you have to make do with what you have. There should be a theme that you develop during the trial. In all likelihood any first positive thoughts you had may very well be the strongest part of the case by the time of trial and should be your theme in your opening statement and during the trial. As soon as you get on your feet for closing argument, immediately restate your theme in a manner designed to get the jury’s attention and raise their sights to a duty higher than the ugly facts before them. Jurors like to feel they are making important decisions. And they will perform with an even higher level of deference to your clients’ case if you lead them there. So you ask, “What the hell are you talking about dinosaur?” Put into practical terms, you should interweave your particular theme with larger issues of fairness, the democratic process, constitutional rights, historical wrongs or other large issues to transport them away from what may be difficult facts in your case. Sometimes this is all you have to go with.
Example 1: (Murder Case-Alibi) – “It’s hard to believe that in our system of justice an innocent person can be convicted of a crime that he didn’t do. But it happens, and in this case, you are charged with the heavy responsibility of seeing that it doesn’t happen here. Until the laws of our universe change a person cannot be in two places at once.”
Example 2: (Reasonable Doubt Case) – “In this case you are going to decide whether the principles that we all have cherished for over 200 years will be preserved in this community. And the principle here in this courtroom is that a person may not be convicted of a crime-- even if you think he’s guilty---if in your mind—you have a reasonable doubt.”
Example 3: (Mental Impairment Defense) – “I like to think that in the society in which you and I live, people who have suffered the horrors of a childhood filled with unwanted brutality may be given the benefit of some degree of understanding in spite of the seemingly needless and cruel act that my client (Young Bob) engaged in.“ (The jury has already determined that the act was needless and cruel. By stating it yourself, you’ve become partners with them and you’re now in a position to have them follow you in the direction you want to go.)
These examples place an important issue in the hands of the jury and instill in them, hopefully, the ability and the power to do the right thing. They will have to vote for something involving the greater good and not just who pulled the trigger. It is the attorney’s role in closing argument to succinctly identify the important issue presented by the client’s case to show the jury why they must vote for the client in order that justice is done. As an old law school professor once said, “There are no small issues – only small lawyers!”
ORGANIZATION
There are three basic ways in which an argument can be organized:
a. The “chronological” argument. Telling a tale from start to finish. Works well for simple factual and legal cases. NOTE: This chronology is of the facts, not the order in which the witnesses testified. In factually complicated cases it is usually helpful to prepare a timeline to have in front of you at trial.
b. The “issue” argument. Better for organizational purposes. Lends itself to interweaving the facts, law and jury instructions.
c. The “politician’s” argument. Bad facts, bad law. Rely on oratorical skills, avoid the issues. Not recommended except in dire circumstances for especially talented attorneys.
TIPS ON SELECTED ISSUES
a. In your trial notes, mark each area of testimony which you want to use during closing arguments. Put an A (for Argument) in the left column as each thing comes up that will help during closing. Your job will be much easier in preparing the closing. Do the same for your issues. If credibility of witnesses is an issue, put an L (for Lying) in the left hand column of your notes where the witness lied. If the gun is important, put a G when it’s mentioned, etc. At the end of the trial you can gather up the important points quickly this way.
b. Order partial transcripts of important testimony during trial. Blow them up for exhibits in closing.
c. Pull important jury instructions and intersperse them in your argument at logical points. Blow up the important ones.
d. Make sure exhibits are in a place where you don’t have to fumble around looking for them. (Notice glaring judge and yawning jurors when this happens.)
e. Use briefest notes possible. Time spent writing is time not observing jurors and witnesses
f. Vary the speed and tone of your voice. Did Henry Kissinger ever win a trial?
g. Use as much of the courtroom as the judge will allow.
h. Use your hands and the exhibits for emphasis.
i. Don’t avoid the bad facts – they’ll come back to haunt you.
TAKING THE REINS AND HOLDING ON
There are cases discussing what the boundaries are for closing argument. Develop a form brief that you can submit to the court in any trial which sets forth this law. By filing this with the court and serving a copy on the prosecutor prior to closing argument, the prosecutor may be more cautious in his argument.
Be in charge of the presentation of your case and avoid just fending off the onslaught of the prosecution and responding to opposing counsel. Along these same lines don’t let the judge run over you. It is not the judge’s case, it’s your case. CAVEAT: Never take on the judge in front of the jury. You will lose! If the judge is killing you in front of the jury, ask for a recess, take a deep breath and then respectfully state your position on the record with a court reporter.
EXAMPLE: “Your Honor, I assure you that I am entirely capable of losing this case all by myself. I do not require your help. Please stop making those comments about my case in front of the jury or I’ll be forced to ask for a mistrial and to challenge you for cause and I would prefer to not do that”. The judge will then deny or explain or threaten or accuse, etc. Unless it is absolutely necessary to preserve the record, do not respond. Politely say “I just wanted the record to reflect my position. Thank you, your Honor.” You’ll be amazed how much better the cold record will look without any whining and in most instances, the judge will get the message even though he may not like it or you.
Trial work is not for the faint-hearted and in the long run you will gain a judge’s respect if you remain cool (i.e. no wounded looks at the jury or other histrionics). When you’re really angry at what the judge is doing. address your comments with the universally recognized code words “With all due respect…” English translation,”Listen asshole…..”
DEVELOPING YOUR INDIVDUAL STYLE
To a large degree we are who we are. A great deal has been written about trial work, including how to dress, how to speak, what to say, how and where to stand, etc., all of which have some degree of value in that there are always things you can do to improve your presentation. The basic rules, however, are the most important and are the most often violated:
THE DINOSAUR’S SEVEN RULES OF CLOSING ARGUMENT
1. Be yourself.
2. Believe in your case and your client. (But that’s a whole different subject.)
3. Get to the point and state it forcefully.
4. Use simple words and simple sentences.
5. Never mislead the judge or jury.
6. Start strong, finish strong.
7. Sit down when you’ve made your point.
Attorneys sometimes assume that jurors are machines who digest the facts and the law and then make their decisions based on that. Perhaps it is due to the jurors not interacting with the attorneys during the trial. Because they don’t speak they become robot like and appear to be impartial and impassive. The reality is that they are watching you very closely and judging you as any other judgments are made outside the artificial surrounding of a courtroom. They look at you and want to know what you are really like and whether you believe in your case. If you appear slick, evasive or use lawyer’s words, your argument will fall on deaf ears.
Other than the seven points listed above there is no single style that you must fit into. Lawyers come in all shapes, sizes and styles. Some are intellectual, others “country bumpkins.” Whatever your style, it has to relate personally to the jurors. Honesty is the surest way to disarm jurors regardless of your style.
Example: “I got up this morning and looked in the mirror and saw this zit on my nose and thought – “Gee, what a great way for me to start closing argument.”
What juror can’t identify with this problem? On the other hand, if a comment like this doesn’t fit into your “persona” or “style” don’t say it! Use a form of honesty that does. Honesty on collateral issues effects jurors’ perception of you as an honest person. Along the same lines, self-deprecation is one of the best ways to connect with the jury.
The entire purpose of developing your courtroom style is to enable you to connect with the jury. To that end eye contact is extremely important. At every opportunity attempt eye contact with jurors at key times. Often there are certain answers given during voir dire which will relate a juror’s personal experience to a portion of the trial. When that testimony comes up, look at the juror so that he or she knows that you recall their own situation which related to the trial testimony. On the other hand, eye contact if overdone or artificial can make the jurors uncomfortable.
USE OF DEMONSTRATIVE AIDS
In a visual society such as ours demonstrative aids during trial are essential. Evidence presented during trial can, of course, be shown to the jury during argument and in many circumstances compilation of the evidence presented, if not misleading, will be allowed to be used during argument. Some of the demonstrative aids at your disposal are:
1. Writing or drawing on the blackboard as you speak.
2. Enlargement or projection of trial transcripts, photographs, jury instruction, etc.
3. Computer graphic programs, Power Point, etc.
4. Computer animations reconstructing the crime.
5. Video or audio tape.
6. The exhibits themselves.
7. Dummies or live persons.
If there is any issue to whether the exhibit is permissible to use, clear it with the court prior to argument. Interruptions during closing to resolve admissibility issues can detract from your argument and if the court rules against you, the jury will think that you’ve done something improper.
Exhibits should be large and, where possible, graphically exciting, i.e., colors, etc. Large exhibits equate with an important issue.
Crucial jury instructions should be enlarged. When you arrive at the portion of the argument where the instruction logically can be discussed put it on an easel and point to the important language as you go over it. A hi-liter works even better and can be done in advance.
PUTTING ON THE HEAT
Many times during trial, facts favorable to you or inconsistencies in testimony are impossible to explain by opposing counsel. During closing argument raise these facts issues with a challenge at the end.
Example: “Mr. Jones testified under oath that he was in his office at 10:00 pm and yet the office records showed that he had left at 9:30 pm. After I resume my seat I’m going to wait anxiously with you folks to hear how opposing counsel is going to explain away this obvious false testimony.”
Of course you have to be sure there is no logical explanation. This puts opposing counsel in a position of either a) not responding at all or b) making up an explanation that is not logical. Either way will be unsatisfactory to the jury and will put the opposing counsel in an awkward position.
Prosecutors do not have two new opportunities to argue. The second argument is a chance for them to rebut anything that you argued. Many prosecutors, however, withhold large portions of their argument for rebuttal. Don’t allow this to go unchallenged. Rise up and object as soon as the new argument is made in rebuttal and allude to the fact that you wouldn’t have an opportunity to respond to this new argument and you might also add “Perhaps counsel wouldn’t object to my just clarifying that one point at the conclusion of his remarks”. Watch the jury glower at the prosecutor when they say no. (Don’t tell anyone the dinosaur told you that!)
Finally, on the issue of grabbing the reins, here’s a story from the olden days when you could smoke during trials. The lawyer straightened out a paper clip and ran it through the length of his cigar and as he puffed on it during a crucial phase of the trial the ash never fell. The longer the ash the more jurors couldn’t keep their eyes off of it and thus, opposing counsel’s damaging evidence. There are lots of variations of this however you had better have some courtroom experience and a blank habeas form in your pocket before wandering into uncharted paths.
So there it is… all of the outdated knowledge I have on the subject. Well, maybe not all.
©Tom Adler 2006
Since retiring from the practice of law I have lived under the delusion that I learned things worth sharing with up and coming trial lawyers. This has led to some embarrassing moments for my wife who overhears the whispers at parties “Why doesn’t he just give it up already?” But I like my little fantasy. It makes me feel connected to the new lawyers who probably know more about any subject than I ever did. Such is the curse of the dinosaur; I must go on spreading the seeds of my wisdom and annoying people at parties. To those victims I ask for forgiveness and say… “Deal with it”.
SWEATY PALMS
So the last witness has testified, the evidence is in and you and the DA have rested. It’s only 2pm and the judge wants to start argument after a 10 minute recess. Before you on counsel table, sits a mass of jumbled papers which you swore you’d keep organized during the trial. Moisture forms on your upper lip as you ponder the 30 minutes the judge has given you to commence your final argument. Your first instinct is to go over everything that happened with the jury---after all they don’t know the case the way you do. You don’t want them to forget anything - Big mistake. Between them, they will remember things you have forgotten and things you’d like to forget and reason out problems that you may never have thought about. Your job is not to go over everything. Your job is to make persuasive sense out of the facts that you need to win.
Since attorney’s notes taken during trial generally track the chronological appearance of the witnesses there is a tendency to rehash the facts, witness by witness, during closing argument. This is generally also a mistake. It insults the jury’s intelligence regarding remembering the facts, it bores the jury and doesn’t result in a persuasive presentation of your defense theory.
Closing argument should start to be formulated during the first client interview and should consist of a theme and perhaps sub-themes. What was it that initially struck you about the case favorably? In criminal law sometimes there’s not much, but you have to make do with what you have. There should be a theme that you develop during the trial. In all likelihood any first positive thoughts you had may very well be the strongest part of the case by the time of trial and should be your theme in your opening statement and during the trial. As soon as you get on your feet for closing argument, immediately restate your theme in a manner designed to get the jury’s attention and raise their sights to a duty higher than the ugly facts before them. Jurors like to feel they are making important decisions. And they will perform with an even higher level of deference to your clients’ case if you lead them there. So you ask, “What the hell are you talking about dinosaur?” Put into practical terms, you should interweave your particular theme with larger issues of fairness, the democratic process, constitutional rights, historical wrongs or other large issues to transport them away from what may be difficult facts in your case. Sometimes this is all you have to go with.
Example 1: (Murder Case-Alibi) – “It’s hard to believe that in our system of justice an innocent person can be convicted of a crime that he didn’t do. But it happens, and in this case, you are charged with the heavy responsibility of seeing that it doesn’t happen here. Until the laws of our universe change a person cannot be in two places at once.”
Example 2: (Reasonable Doubt Case) – “In this case you are going to decide whether the principles that we all have cherished for over 200 years will be preserved in this community. And the principle here in this courtroom is that a person may not be convicted of a crime-- even if you think he’s guilty---if in your mind—you have a reasonable doubt.”
Example 3: (Mental Impairment Defense) – “I like to think that in the society in which you and I live, people who have suffered the horrors of a childhood filled with unwanted brutality may be given the benefit of some degree of understanding in spite of the seemingly needless and cruel act that my client (Young Bob) engaged in.“ (The jury has already determined that the act was needless and cruel. By stating it yourself, you’ve become partners with them and you’re now in a position to have them follow you in the direction you want to go.)
These examples place an important issue in the hands of the jury and instill in them, hopefully, the ability and the power to do the right thing. They will have to vote for something involving the greater good and not just who pulled the trigger. It is the attorney’s role in closing argument to succinctly identify the important issue presented by the client’s case to show the jury why they must vote for the client in order that justice is done. As an old law school professor once said, “There are no small issues – only small lawyers!”
ORGANIZATION
There are three basic ways in which an argument can be organized:
a. The “chronological” argument. Telling a tale from start to finish. Works well for simple factual and legal cases. NOTE: This chronology is of the facts, not the order in which the witnesses testified. In factually complicated cases it is usually helpful to prepare a timeline to have in front of you at trial.
b. The “issue” argument. Better for organizational purposes. Lends itself to interweaving the facts, law and jury instructions.
c. The “politician’s” argument. Bad facts, bad law. Rely on oratorical skills, avoid the issues. Not recommended except in dire circumstances for especially talented attorneys.
TIPS ON SELECTED ISSUES
a. In your trial notes, mark each area of testimony which you want to use during closing arguments. Put an A (for Argument) in the left column as each thing comes up that will help during closing. Your job will be much easier in preparing the closing. Do the same for your issues. If credibility of witnesses is an issue, put an L (for Lying) in the left hand column of your notes where the witness lied. If the gun is important, put a G when it’s mentioned, etc. At the end of the trial you can gather up the important points quickly this way.
b. Order partial transcripts of important testimony during trial. Blow them up for exhibits in closing.
c. Pull important jury instructions and intersperse them in your argument at logical points. Blow up the important ones.
d. Make sure exhibits are in a place where you don’t have to fumble around looking for them. (Notice glaring judge and yawning jurors when this happens.)
e. Use briefest notes possible. Time spent writing is time not observing jurors and witnesses
f. Vary the speed and tone of your voice. Did Henry Kissinger ever win a trial?
g. Use as much of the courtroom as the judge will allow.
h. Use your hands and the exhibits for emphasis.
i. Don’t avoid the bad facts – they’ll come back to haunt you.
TAKING THE REINS AND HOLDING ON
There are cases discussing what the boundaries are for closing argument. Develop a form brief that you can submit to the court in any trial which sets forth this law. By filing this with the court and serving a copy on the prosecutor prior to closing argument, the prosecutor may be more cautious in his argument.
Be in charge of the presentation of your case and avoid just fending off the onslaught of the prosecution and responding to opposing counsel. Along these same lines don’t let the judge run over you. It is not the judge’s case, it’s your case. CAVEAT: Never take on the judge in front of the jury. You will lose! If the judge is killing you in front of the jury, ask for a recess, take a deep breath and then respectfully state your position on the record with a court reporter.
EXAMPLE: “Your Honor, I assure you that I am entirely capable of losing this case all by myself. I do not require your help. Please stop making those comments about my case in front of the jury or I’ll be forced to ask for a mistrial and to challenge you for cause and I would prefer to not do that”. The judge will then deny or explain or threaten or accuse, etc. Unless it is absolutely necessary to preserve the record, do not respond. Politely say “I just wanted the record to reflect my position. Thank you, your Honor.” You’ll be amazed how much better the cold record will look without any whining and in most instances, the judge will get the message even though he may not like it or you.
Trial work is not for the faint-hearted and in the long run you will gain a judge’s respect if you remain cool (i.e. no wounded looks at the jury or other histrionics). When you’re really angry at what the judge is doing. address your comments with the universally recognized code words “With all due respect…” English translation,”Listen asshole…..”
DEVELOPING YOUR INDIVDUAL STYLE
To a large degree we are who we are. A great deal has been written about trial work, including how to dress, how to speak, what to say, how and where to stand, etc., all of which have some degree of value in that there are always things you can do to improve your presentation. The basic rules, however, are the most important and are the most often violated:
THE DINOSAUR’S SEVEN RULES OF CLOSING ARGUMENT
1. Be yourself.
2. Believe in your case and your client. (But that’s a whole different subject.)
3. Get to the point and state it forcefully.
4. Use simple words and simple sentences.
5. Never mislead the judge or jury.
6. Start strong, finish strong.
7. Sit down when you’ve made your point.
Attorneys sometimes assume that jurors are machines who digest the facts and the law and then make their decisions based on that. Perhaps it is due to the jurors not interacting with the attorneys during the trial. Because they don’t speak they become robot like and appear to be impartial and impassive. The reality is that they are watching you very closely and judging you as any other judgments are made outside the artificial surrounding of a courtroom. They look at you and want to know what you are really like and whether you believe in your case. If you appear slick, evasive or use lawyer’s words, your argument will fall on deaf ears.
Other than the seven points listed above there is no single style that you must fit into. Lawyers come in all shapes, sizes and styles. Some are intellectual, others “country bumpkins.” Whatever your style, it has to relate personally to the jurors. Honesty is the surest way to disarm jurors regardless of your style.
Example: “I got up this morning and looked in the mirror and saw this zit on my nose and thought – “Gee, what a great way for me to start closing argument.”
What juror can’t identify with this problem? On the other hand, if a comment like this doesn’t fit into your “persona” or “style” don’t say it! Use a form of honesty that does. Honesty on collateral issues effects jurors’ perception of you as an honest person. Along the same lines, self-deprecation is one of the best ways to connect with the jury.
The entire purpose of developing your courtroom style is to enable you to connect with the jury. To that end eye contact is extremely important. At every opportunity attempt eye contact with jurors at key times. Often there are certain answers given during voir dire which will relate a juror’s personal experience to a portion of the trial. When that testimony comes up, look at the juror so that he or she knows that you recall their own situation which related to the trial testimony. On the other hand, eye contact if overdone or artificial can make the jurors uncomfortable.
USE OF DEMONSTRATIVE AIDS
In a visual society such as ours demonstrative aids during trial are essential. Evidence presented during trial can, of course, be shown to the jury during argument and in many circumstances compilation of the evidence presented, if not misleading, will be allowed to be used during argument. Some of the demonstrative aids at your disposal are:
1. Writing or drawing on the blackboard as you speak.
2. Enlargement or projection of trial transcripts, photographs, jury instruction, etc.
3. Computer graphic programs, Power Point, etc.
4. Computer animations reconstructing the crime.
5. Video or audio tape.
6. The exhibits themselves.
7. Dummies or live persons.
If there is any issue to whether the exhibit is permissible to use, clear it with the court prior to argument. Interruptions during closing to resolve admissibility issues can detract from your argument and if the court rules against you, the jury will think that you’ve done something improper.
Exhibits should be large and, where possible, graphically exciting, i.e., colors, etc. Large exhibits equate with an important issue.
Crucial jury instructions should be enlarged. When you arrive at the portion of the argument where the instruction logically can be discussed put it on an easel and point to the important language as you go over it. A hi-liter works even better and can be done in advance.
PUTTING ON THE HEAT
Many times during trial, facts favorable to you or inconsistencies in testimony are impossible to explain by opposing counsel. During closing argument raise these facts issues with a challenge at the end.
Example: “Mr. Jones testified under oath that he was in his office at 10:00 pm and yet the office records showed that he had left at 9:30 pm. After I resume my seat I’m going to wait anxiously with you folks to hear how opposing counsel is going to explain away this obvious false testimony.”
Of course you have to be sure there is no logical explanation. This puts opposing counsel in a position of either a) not responding at all or b) making up an explanation that is not logical. Either way will be unsatisfactory to the jury and will put the opposing counsel in an awkward position.
Prosecutors do not have two new opportunities to argue. The second argument is a chance for them to rebut anything that you argued. Many prosecutors, however, withhold large portions of their argument for rebuttal. Don’t allow this to go unchallenged. Rise up and object as soon as the new argument is made in rebuttal and allude to the fact that you wouldn’t have an opportunity to respond to this new argument and you might also add “Perhaps counsel wouldn’t object to my just clarifying that one point at the conclusion of his remarks”. Watch the jury glower at the prosecutor when they say no. (Don’t tell anyone the dinosaur told you that!)
Finally, on the issue of grabbing the reins, here’s a story from the olden days when you could smoke during trials. The lawyer straightened out a paper clip and ran it through the length of his cigar and as he puffed on it during a crucial phase of the trial the ash never fell. The longer the ash the more jurors couldn’t keep their eyes off of it and thus, opposing counsel’s damaging evidence. There are lots of variations of this however you had better have some courtroom experience and a blank habeas form in your pocket before wandering into uncharted paths.
So there it is… all of the outdated knowledge I have on the subject. Well, maybe not all.
©Tom Adler 2006
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