The Prosecutorial Ethic: With Great Power Comes Great Responsibility

Although the American trial system has been likened to an arena in which mental combatants fight “to the death ” (the verdict ), each warrior similarly skilled and equally committed to vanquishing the other in a forum with formal rules of engagement enforced by a learned and impartial judge, the role of the criminal prosecutor is qualitatively different from that of other advocates. This is because, unlike any other lawyer, a criminal prosecutor has an affirmative duty to the opposing party

Effective Pre-trial Motions: Persuading the Judge

Victories won in pre-trial motions can significantly affect the direction and outcome of a trial. For this reason, successful trial lawyers prepare for motions with the same thoroughness that they employ for the trial itself. Arguing a motion to a trial judge, however, is different from arguing your case to a jury; to be effective, an advocate needs to be mindful of the difference. Judges generally resist what they perceive as emotional manipulation, theatrics, or excessive rhetoric. Many judges expect lawyers to cleanly and succinctly argue the facts and the law without employing any appeal to emotion. That being said, judges are human. They want to do the right thing. They want their rulings to produce fair results, not just legally sound results. In this regard, judges are influenced by the same universal themes that speak to jurors. The advocate’s goal is to incorporate a theme into her argument that emotionally hooks the judge without being off-putting. The most effective way to do this is to be extraordinarily well-prepared and organized. The advocate who demonstrates mastery of the facts and the law, whose presentation is tightly crafted and avoids repetition, and who is prepared to answer questions from the bench is in a better position to weave her theme throughout her presentation without irritating the judge

Taking Better Depositions by Thinking Outside the Box

While there are reasons a lawyer may ask questions in a deposition to confirm what she thinks she already knows—nailing down facts for a summary judgment motion, confirming factual and legal theories, perpetuating a witness’s testimony, or facilitating settlement by flexing favorable facts—gathering information the lawyer does not know remains the primary goal of almost every deposition. Despite this, lawyers too often ask questions based on what they already know, limiting the universe of answers and undermining the goal of gathering information. By the time a lawyer notes depositions, she has already built a “working model” of the case based on client interviews, informal fact investigation, and review of documents and other preliminary discovery. It is easy to structure deposition questions based on this construct, but it presupposes that the lawyer’s pre-deposition view of the facts is complete and accurate. The better practice is to think “outside the box” and imagine the universe of information that could possibly exist—both positive and negative—and then craft your questions in a way that allows the witness to provide information beyond the four corners of your understanding of the case. To do this, begin each topic with a series of open-ended questions that invite the witness to talk generally about the subject. This allows for the possibility of unknown information to be revealed because you haven’t structured the question too narrowly

Mastering Foolproof Witness Control on Cross-Examination

In the wonderfully entertaining and instructive video, The Ten Commandments of Cross-Examination, the late Irving Younger offered this appraisal of lawyers’ ability to conduct cross-exam: “Most lawyers do it badly all the time, no lawyer does it well all the time, and no lawyer in the early stages of his career does it well at all.” Happily, we’ve come a long way since Younger’s grim 1975 assessment, due to the instruction of maestros like Younger, Terrence McCarthy (McCarthy on Cross-Examination), and Larry Pozner and Roger Dodd (Cross-Examination: Science and Techniques). All too often, however, lawyers still find themselves in trouble on cross-examination, sparring with an out-of-control witness. There is, however, a simple system for maintaining witness control on cross-exam, and there are some easy techniques for regaining control if things go awry

The Asymmetry of Duty in Criminal Trial Practice

Although the American trial system has been likened to an arena in which mental combatants fight “to the death” (the verdict), each warrior similarly skilled and equally committed to vanquishing the other in a forum with formal rules of engagement enforced by a learned and impartial judge, the role of the criminal prosecutor is qualitatively different than that of other advocates. This is because, unlike any other lawyer, a criminal prosecutor has an affirmative duty to the opposing party. A lawyer who represents an individual client is duty-bound to advance that client’s interests vigorously within the bounds of the law. A prosecutor, however, does not represent a single individual, but rather the collective good. As such, a prosecutor’s loyalties — unlike those of other lawyers — are divided. A prosecutor’s duties include insurance of procedural and substantive fairness to persons accused of crimes because, as one element of a just society, such fairness is in the interests of the collective good. Further, because the defendant is a member of the “represented” collective, a prosecutor must take the defendant’s interests into account in assessing the validity of the prosecution

Surviving (and Thriving) in the First Year of Trial Practice

The substance and procedure of trial practice may vary across different law firms and agencies, but there are certain challenges that all first-year trial lawyers face when starting out. No matter how brilliant and capable a newly minted attorney may be, there are some lessons more indelibly learned on the job than in law school; while these lessons are undoubtedly valuable, they can be painful and embarrassing. Although reading about the possible pitfalls of the first year of trial practice is not as educational as walking through the fire oneself, I have collected over the years a few tips and strategies for successfully navigating the waters of the first year of trial practice. Experience is, after all, the name we give to our mistakes. In this article, I have drawn on some of those first-year lessons learned by my friends and me that added to our collective experience. My hope is that sharing our mistakes will spare you some of your own

10 Tips for Getting Jurors to Talk

“Jury selection” is a misnomer because lawyers don’t actually get to “select” ideal jurors; they get a limited opportunity to “deselect” the worst prospective jurors. The goal of voir dire is to identify these jurors by uncovering their attitudes, beliefs, opinions, preconceptions, biases, and prejudices. To accomplish this, a lawyer has a difficult task: she must foster an honest, intimate conversation among strangers in a very public, formal environment. Even honest jurors may give misleading answers during voir dire due to nervousness, inattention, faulty memory, or misunderstanding. The formal courtroom atmosphere can have a chilling effect at odds with the judge’s instructions and the oath to be honest and forthcoming. Jurors may resolve this conflict by interpreting questions narrowly and literally, and responding with short, technically truthful answers. The key to getting jurors to open up is to think about voir dire as an intimate conversation. The goal is to get the jurors talking, and once they start, to keep them talking

Playing Nice: The Dos and Don\u27ts of Courtroom Etiquette

No matter how brilliant the lawyer, impressive her credentials, thorough her case preparation, or razor-sharp her analytic skills, she risks damaging her case — and her reputation — if she fails to comply with basic courtroom etiquette. There are certain dos and don’ts of courtroom behavior that are understood by seasoned trial lawyers and expected from judges. There are also common courtesies expected by jurors of lawyers who are viewed as professional and credible. A lawyer will undoubtedly learn these behavioral norms in the trenches over time, but she is well advised to have a courtroom etiquette checklist in her trial notebook as a quick reference guide. The aim is to avoid those small faux pas that can embarrass and fluster an advocate, as well as larger lapses in professional judgment that can damage a client’s case or a lawyer’s reputation. The list below is not exhaustive by any means, but serves as a handy primer on the basics of courtroom etiquette

Revisiting Trial Basics Every Time: A Ritual for Courtroom Success

With fewer cases progressing to trial, many attorneys do not have adequate opportunities to practice the skills necessary to be successful in the courtroom. Here the author provides a useful and uncomplicated examination of the basic trial advocacy skills, which should be reviewed each time an attorney prepares for trial. Writing for the busy practicing attorney, the author concisely addresses six key stages of trial: voir dire, opening statement, direct examination, cross-examination, impeachment, and closing argument

There Is No Summer in the Courtroom

Pacific Northwesterners frequently lament summer’s delayed arrival to our verdant corner of the country, and this year is no exception. June was unseasonably cool and wet, and the first official weekend of summer brought grey skies, chilly breezes, and sheets of rain. It is no surprise, then, that each year, as August approaches and summer seems to have truly arrived, locals eagerly search their closets for rarely-used warm-weather attire. Lawyers are not immune from the lure to celebrate summer’s overdue arrival by breaking out tank tops, flip-flops, sunglasses, and shorts. Nonetheless, a trial lawyer needs to remember that although summer does eventually arrive to our region, however late that may be, it never arrives inside a courtroom. Over the last two decades, particularly on the west coast, where there is a more relaxed expectation of formality in professional dress, clothing that was once reserved for “casual Fridays” is now de rigueur throughout the work week in many law firms and agencies. It can be easy, then, for a lawyer’s working wardrobe to become unconsciously “summerized” when the temperature rises. And while a particular office culture may tolerate or even embrace the idea of colleagues sporting sleeveless dresses, polo shirts, khaki shorts, or short-sleeved Hawaiian-print shirts, a lawyer needs to be mindful that it is never summertime in the courtroom