Florida Criminal Law Blog

On August 31, 2010, while on the airplane returning from the week long “interactive” training I generally attend every year in Dubois, Wyoming at the Trial Lawyers College, the thought that weighs heavy on my mind is how do I keep the gifts or lessons learned in the forefront of my mind when I return to my daily life and trial work. This experience each year has generally a good one, both personally and professionally. But it seems this time the experiences were extraordinary this year; for one thing, having a roommate for nine days was extraordinary. But kidding aside, the gifts or lessons taken away from attending my ninth “Trial Lawyers College” post graduate program were seemingly much more powerful this time.

What makes this experience so extraordinary is not so much applying or learning methods of how to be a better trial lawyer or communicator, but the realization that our lives, if they are to be full, are based on relationships we form with ourselves, other people and our world.

In order to have fully developed relationships we have to understand and know who we are. This not only means understanding our feelings about certain issues and thoughts we may have, it also means accepting ourselves for who we are, the good parts and the not so good parts. The exercises and methods employed by the College, whether you are involved in the re-enactment of a personal event of your life, your client’s life, a witnesses’ life or merely observing others doing these things, enables you understand that we all have common issues merely because we are human beings. Watching someone's reenactment of an important event makes us remember similar events in our lives and can bring back feelings about an event that happened 25 years ago that we may have thought of for many years. Or, we may experience how that event that occurred so long ago makes us feel now, in the present moment. Most of us certainly don't think we can "feel" an event again five, ten or twenty-five years later but we can using the many methods, including those developed by J. L. Moreno, M.D., the creator of psychodramatic methods.

Once we get to the place where we feel, rather than think about the past event, our truths reveal themselves. Some people don't want to go to such places; they have compartmentalized an event and don't want their initial interpretation of the event from long ago to get “out of the box” again. (If we even realize we have stuffed the event and true feelings in a box). A big problem is that our initial interpretation of an event may be wrong and, by “re-feeling” the event, we may re-frame the entire event and find the real truth.

I wish there was a way to keep the feelings, compassion, empathy, understanding and love we have for others after leaving this program permanently ingrained in our psyches. It seems that once returning to the world and culture that I currently live in, I allow the stressers, daily crises, and extraordinary problem solving requirements of being a trial lawyer to forget I can access these qualities of innate human nature that can make life, and practicing law, so much more fulfilling.

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Learning Why Some People Need or Want Power

Abraham Lincoln once said: “Nearly all men can stand adversity, but if you want to test a man’s character, give him power." The phenomenon called “power” changes most human beings lives and personalities. We see what can happen to the personalities of some lawyers when they assume the powerful role of judges. We can even see what happens to some lawyers when they become successful - some forget what enabled them to become successful to begin with, often times humility, extremely hard work and extreme preparation and an openness and willingness to learn from others.
As effective advocates for our clients we should make an effort to understand what can happen to a person when they are appointed to be a state or federal prosecutor. What pressures are on them? Do they get judged by their superiors by the number of cases they take to trial or are they judged by the number of trials they win? What pressure would be on us if we worked in their office? How much discretion do they have over their cases? By understanding them better, I believe we can be more effective advocates for our clients.

Different Personalities of Prosecutors and Lawyers

The following are brief descriptions of a few basic personality types of attorneys I have experienced as opposing advocates. This short list is not all inclusive by any means. I must also qualify what I say about "opposing advocates" or prosecutors applies to defense attorneys as well. I have had more than one co-defendant’s lawyer in a multi-defendant jury trial exhibit these same character traits to the detriment of my client or other co-defendants.

A. The Look Good Attorney

For some lawyers their self-centeredness is “advanced” enough they use the justice system to provide them a stage upon which they can show “their stuff.” They have little allegiance to fair play and are more concerned about how they appear to other lawyers in their office, their bosses or how they appear or sound in the local newspaper or television. To them their own career is paramount to anything else. They have little compassion for the citizen and human being they call “the defendant.” They consider themselves far above the “criminal milieu.” Perhaps they haven’t lived long enough to appreciate the maxim that “there but for the grace of God, go I.” Perhaps they never will. I think people whho sit on juries can see through this and, if given enough time, can see the lawyer who "postures" for who he or she really is. Placing more emphasis on looking good and not being real or genuine causes people on the jury to lose trust in the lawyer. If you watch the great trial masters, I think you will find that their “out of the courtroom” personality is not much different, if at all, from their courtroom personalities. Most of the very best trial lawyers are compassionate, credible and respect the opinions and viewpoints of other people. As trial lawyers, if we strive to maintain our credibility and don’t over react to the inappropriate behavior of opposing counsel, we become the person in the court room that the jury can trust and believe. I think some cases are lost by the government because the government’s attorney or opposing counsel has been overly zealous, obnoxious and offensive yet at the same time they themselves believe that they “look as a lawyer should” to other people in the courtroom. Although justice is what people on the jury truly want to see in most cases, I believe occasionally juries find against a party because they truly dislike that party’s attorney.

B. The Self-Righteous Attorney

Other lawyers and prosecutors are more concerned about always being right. After all they are the Government fighting for the good against criminals. I once had a prosecutor tell me during plea negotiations when I questioned whether I could simply rely on his word in a plea agreement that “I was just going to have to trust the United States of America” meaning I was just going to have to trust him. He considered himself the United States of America. (The last time I checked, both he and I were merely citizens of the United States). Some of these prosecutors believe all defendants and their attorneys are equally bad characters. They do not see shades of gray - only black and white. They will ignore critical evidence that defense counsel provides them that makes it clear the State’s case is not well-founded or lacks a good faith basis to proceed. Nothing will deter this prosecutor or opponent from their original position that your client is guilty as hell. I believe often times, these lawyers are fearful of being wrong - they can’t accept that they may have made a mistake for if they do their own self-esteem will be eroded. Ego gets in the way of the real truth. When the case becomes more about the lawyer than the facts, the truth can’t be told in a congruent fashion where the jury will believe the advocates story. Some of the best trial lawyers “make themselves invisible” in a sense - the facts and witnesses are paramount and are what the jury remembers, not the lawyers posturing, great oratory or dazzling “brilliance.” In my opinion, the verdict in O.J. Simpson’s case may have been different if the prosecutors’ concern for their clothes, hair styles and personal relationships hadn’t become a significant feature in the case.

C. The Need for Power Attorney

Then there are those lawyers who have a personal need for power. These people generally enjoy the power they have over your client and you. Bullying witnesses and defense lawyers gives them joy in and of itself. Being a prosecutor may give them a measure of self-esteem or self-worth. Sometimes for the first time in their lives it seems like people respect them. They had finally become somebody when they became prosecutors. People who seek power to make themselves feel good about who they are often feel very inadequate personally and professionally. The self-esteem they obtain as a result of their position isn’t healthy self-esteem. Perhaps that’s why when these prosecutors lose cases they sometimes take it so personally - they think that losing the case is their personal loss. They don’t consider the facts may have something to do with the outcome. As we defense attorneys know, there are certain facts in our cases that we cannot change and must accept. Sure there are things we can do to present the facts in a way most favorable for our client but we can’t change the facts. It is sometimes horribly difficult to emotionally deal with, but our losses in trials are no more our losses than a when a doctor loses a patient to cancer. The cancer was not the doctor’s cancer anymore than our client’s cases are not our cases. I try to remember, when I do my absolute best, I never lose. My cases are not about me. Once I begin viewing my cases as about my client and his or her situation, I become a better lawyer. I get stymied by fear when my clients’ cases become nothing more than extensions of my own ego.

People in Positions of Authority
Certainly prosecutors are in a “position of authority” as are many of us in some form or fashion. Before becoming a state public defender in Pensacola 21 years ago, I spent a few years as a Florida State Prosecutor. I can still remember how it felt to be the “proverbial good guy with the white hat” (my boss told me that), the sense of power having a badge gave me and how it felt when I began my new job right out of law school as a new prosecutor. For goodness sakes, I was able to make decisions about the proprieties of arrests by law enforcement officers who had many more years of experience than I did! I also remember the “cloak of credibility” jurors seemed to give me merely because it seemed I was on the “good guys team.” (Something else my old boss told me).
Like many people, being a prosecutor was my first job out of law school. I was fortunate that being a prosecutor was not the first job I ever had in my life. I was economically very poor during different parts of my life and financially struggled to get through college and law school. This still didn’t instill in me an understanding that the fact I had a law degree really meant very little when it came to trying jury trials. In fact, much of what I learned and who I had become because of the law school experience hindered my effectiveness in the courtroom. Albeit I had some “life experience” I still didn’t fully appreciate, at least to the extent I do now, the power I instantly had over people’s lives merely because of the job I held.

Does Being an Advocate Skew an Attorney’s Perception of the Facts?

A young person fresh out of law school who becomes a prosecutor is especially vulnerable to the personality changes that may accompany the power over people’s lives they are given merely by their positions as quasi law enforcement officers. Some of the people with the best temperaments to cope with such authority may not stay at the prosecutor’s office long and are merely there to gain some trial experience before they move on in their careers. However, there are prosecutors who appreciate the power they hold over citizens lives and really seek justice and the truth. They learn and accept that some police officers and/or complaining witnesses will exaggerate facts to justify making an arrest or having someone arrested. These prosecutors want to learn facts beyond those facts stated in a probable cause affidavit and know when to be merciful in their plea negotiations and will dismiss a case when they come to realize they cannot in good faith proceed. However, like all people, they see the truth through the prism of their own experiences. After being entrenched in the criminal justice system, a prosecutor’s perspective, like the rest of us, may become skewed. After being part of the criminal justice system and defending people for 24 years, I have come to accept that I may not always see my client’s cases entirely objectively myself. I want to believe my client’s story. However, I try to make a sincere effort to evaluate the case honestly; if my client tells me some story that sounds bogus, I tell him. If he or she demands to go forward with that bogus sounding story I tell him or her they need to find a different lawyer. Sure, everyone deserves a defense, but I believe a client deserves a lawyer who believes in their story as well. (Unfortunately, the courageous people at the Public Defender’s Offices can’t be so choosey).