What can do to more effectively assist our clients in navigating the treacherous waters of the justice system and all of the personality types of the people within it? In my experience, generally I have found it extremely beneficial not to engage opposing counsel in their bad behavior whether it is over the phone, at deposition or in trial. For me, in representing people (and in life in general) it is better to not react “in kind” to bad or disrespectful behavior from opposing counsel. By engaging them I lose my effectiveness and give away my personal “power” to my opponent. Some lawyers won’t agree with me. Some of us believe “fire should be fought with fire.” Everyone has to find the right way to deal with anger. In trial, I believe if a lawyer gets so angry in front of a jury, at opposing counsel, at the judge or with a witness during a cross exam, the jury begins to think that the lawyer believes the case is more about him and less about what the facts of the case actually are. We lose our credibility and we can’t be the jury’s guide and teacher that will lead them to justice if we lose our credibility.
I have been extremely aggressive at times in my younger years as a trial attorney–yes, it felt good; yes, it looked good to other attorneys; and yes, my client thought it was fantastic. But the jury hated me for it and it was difficult if not impossible to be forgiven by them and regain “a connection” with them after such an episode. After witnessing an outburst, the jury believes they have witnessed the “true side” of me; perhaps I have been an impostor all along.
Of course, what works for one attorney may not work for others. It took me years to learn that I didn’t have to have the great oratory skills of some members of the Bar nor did I have to have to be the smartest lawyer in the Courtroom to be the most effective. What I needed to do was be myself, not me the lawyer, but me the person, which is the basic premise of what is taught at The Trial Lawyers College. I do need to be extremely prepared and someone who the jury would trust. I could make mistakes as long as I acknowledged them and sincerely apologized. Jurors distrust lawyers. I do my best to leave my lawyer man personality at home. In fact, I try not to have one to leave at home, probably an impossible feat, but something I try to do.
Is Connecting with the Jury Mutually Exclusive of Making A Record?
It is important to know the law and evidence code, the “rules of engagement” so to speak, and if at deposition or in trial opposing counsel is violating the rules, calmly and quietly make a record. Some prosecutors and lawyers who outright abuse their authority should be reported to a higher authority after an appropriate record is made. Prosecutors bullying witnesses who testify truthfully but favorably in support of a defense theory at deposition is an example of bad behavior that borders on witness influencing or tampering. Many of us have had cases where a witness who testifies favorably for a defendant becomes a co-defendant himself after his or her deposition. By charging these people who were only marginally involved with the offense conduct, they became scared and often become cooperating witnesses for the State. Is this not witness tampering or obstruction of justice by the prosecutor? I have found that if you are dealing with a very adversarial opponent the most effective way to disarm them is not to engage them — they want you to argue with them. Not engaging them befuddles them. I had a prosecutor tell me recently after some depositions that she hates doing depositions with me because I won’t respond in kind to her in arguments over the case. (I had told her when she was screaming at me because after her witness recanted at deposition that “I am not going to argue with you no matter what you say”). The case was ultimately dismissed.
Every case and situation must be judged on it’s own facts, and you must be guided by your own personality and intuition, but at times I will allow a prosecutor to act badly or berate me and/or my client in front of the jury without making an objection because I want the jury to see the true nature of the prosecutor. I do not believe that objecting at every opportunity even for valid reasons in trial benefits my client. Of course, the risk of not objecting must be considered and balanced with creating a record; however, I believe most people on a jury believe if a defense attorney objects we don’t want them to hear something that impacts negatively on our case. In a recent trial, I objected only one time during the prosecutors closing even though he had probably called my client “a liar” fifteen or so times. In this particular trial the evidence during our cross examination of the arresting officer showed that he had blatantly lied. The prosecutor, who is as skilled and talented a prosecutor as they have in the particular office, explained his officer’s lie as simply a “mistake that anyone could make yet" he was arguing to the jury that the defendant is a liar for putting forth his defense. The fact that his officer only made a “mistake” yet our defense theory was a huge lie seemed incongruous to our jury, especially with his repeatedly calling my client a liar. His anger towards my client and me became so vehement that he finally told the jury that I was asking them to violate their oath as jurors by finding my client not guilty. To this I was truly shocked and objected in an extremely aggressive tone. The judge severely rebuked him in front of the jury. He lost further credibility. In this situation, knowing the judge as I did and with his ludicrous comment, I felt certain the judge would sustain my objection before I objected. (The judge was also fed up with his calling my client a liar too I believe, as was the jury). Throughout a trial I try to “gage” my jury — are they giving me permission to object strenuously? Are they giving me permission to aggressively cross examine a witness? Also, as I sat and listened to the prosecutor call us liars, I wondered if the jury might be thinking why would the prosecutor be over reacting in such an angry manner if he didn’t have something to fear? Did he doubt his case? I hadn’t done anything to anger anyone in the case except him. I knew by his tone and denigration of my arguments that he might have believed our arguments had resonated with the jury. I also knew that his anger was hurting his own credibility.