Lethal Generosity in the Legal Profession

Criminal defense trial lawyering

integrates technology, telecommunications and social interaction, and the construction of words, pictures, videos and audio. This interaction, and the manner in which information is presented, depends on the varied perspectives and “building” of shared meaning among communities, as people share their stories and experiences.

Right?

I scavenged the definition from the Wikimedia page on “social media.” But the metaphor holds true — like social media, modern criminal trial law integrates various sorts of interaction (telephone, interview, email, psychodrama, voir dire, cross-examination, direct examination, argument, Power Point, video, audio, and so forth) to build shared meaning among lawyers, witnesses, and judge.

Some of the rules of social media apply equally to criminal defense trial lawyering. (Is that trite? Many of the rules of anything probably apply to anything else.)

For example, the concept of lethal generosity (from Shel Israel’s Global Neighbourhoods blog):

that the most generous members of any social media company are the most credible and influential and as such, they can devastate their competition in the marketplace.

I don’t believe I have competition among the criminal defense bar. Colleagues, yes; competition, no. We happen to be fishing in the same hole, but there are plenty of fish for all of us.

But I do believe that the most generous members of the criminal defense community are the most credible and influential. So for “competitor” read “colleague” in Shel’s summary of the rules of lethal curiosity:

In social media, the best way to beat your competition is to be more generous with anything that your customer values. In blogs, you are served best by sending people away through links. In Twitter, as Chris Brogan, one of that community’s prominent thought leaders advises people to write a dozen times about other subjects for every time a Tweeter talks about his or herself.

This is about as far away from the aging command and control philosophy as you can get. In today’s competitive environment, you need to understand that the customer is in control. If you want to win, give the customer what the customer wants. If you do this often enough and credibly enough it will be brutal to your competitors–unless the competitor rises to the occasion and tries to “out-generous” you back.

Scott Greenfield is not enthusiastic about sharing motions with other lawyers:

Certain of my motions have gained surprising popularity, where I receive calls from lawyers I’ve never heard of asking for a copy.  They have got to be kidding.   I’m not here to do their work, or give mine away so they won’t have to do their work.  I could be flattered by these requests.  I’m not.  Do your job, man. And this is the last time I’m going to tell you: get out of my yard!

(Okay, I added that last part.)

Once I’ve written a brief or motion and released it to the wild, I’m happy to share it with other criminal defense lawyers. We are mostly on the same team, and if I can give someone. It doesn’t cost me anything to share. It doesn’t cost me anything if they don’t proofread it before filing it (unless they leave my name in the signature block). It doesn’t even cost me anything if they are using it to avoid doing work of their own.

I’m even happier to have potential clients see my work before they hire me. Some of it is bleeding-edge lawyering (what if “notice and an opportunity to be heard” really meant “notice and an opportunity to be heard”? what if “no religious test” meant what it said too?), but I write on the level of my audience, so the average client shouldn’t have any trouble understanding the arguments.

I believe that what Shel writes about lethal generosity applies to the practice of criminal defense trial law as well: those lawyers who are generous in sharing their time and talent with others in the profession, and who give the customers more of the information the customers crave, will do very well for it.

This is a close relation of one of the rules of improvisational comedy: you can look good if you make your partner look good

The Nature of the Job

The job is antidemocratic, to begin with. Our Constitutional mission is to confront and resist authority, which, in America (where we like to elect our authority figures) means flouting the more-or-less democratically expressed will of the majority. Successfully defending people usually means telling those whom the majority has chosen to enforce the laws made by its representatives that either they or the laws are wrong. In other words, the mob is wrong.

Which explains why lots of people don’t much care for us: they are under the impression that they live in a democracy, where what the majority says is always right. This misconception leads them to (among other things) resent judicial review, and feel threatened by those who resist their will. To explain how it is that an intelligent person could stand up in court day after day and tell the mob that it is wrong, they tell themselves (and, as anonymous blog commenters, anyone else who will listen) that criminal defense lawyers are sleazy, dishonest, unethical.

And so is born the myth of the lying criminal defense lawyer. Tell someone that you are a criminal defense lawyer and, without knowing anything else about you, chances are that she’ll assume that you are perfidious. The myth reinforces itself as new criminal defense lawyers join the bar; some buy into public view that lying is part of the job and confirm the mob’s suspicions.

The truth, though, is that lying isn’t part of the criminal defense lawyer’s job. A criminal defense lawyer doesn’t have to lie, cheat, or steal to succeed.

In fact, a criminal defense lawyer can’t lie, cheat or steal and succeed. A defense based on lies is almost always doomed to fail. A lawyer who lies has failed to find the truth that saves his client, and has lost the case already. Yagyu Munenori, in The Book of Family Traditions on the Art of War, a 17th-century Japanese swordfighting text (available in The Book of Five Rings translated by Thomas Cleary), writes:

Whatever the false mind does is wrong. If this wrong mind emerges, you will lose at martial arts; you will miss the mark with bow and gun, and will not even be able to ride a horse. If you performed in a drama or a dance in this state, it would also be unpleasant to watch and listen. Mistakes will also show up in what you say. Everything will be off. If you accord with the original mind, however, everything you do will be good.

. . . .

The false mind is sickness of mind; getting rid of this false mind is called getting rid of sickness. Rid of this sickness, the mind is healthy. This sound mind is called the original mind. If you accord with the original mind, you will excel in martial arts. This principle is relevant to everything, without exception.

(Hold on to that idea. We’ll return to it another day in the context of what we do, rather than just how we do it.)

Clients sometimes think that they want a lawyer who will act unethically for them, but they don’t: first, because a defense based on lies is almost always doomed to fail; and second, because clients need lawyers they can trust. Unethical lawyers are . . . unethical. A lawyer who behaves dishonestly “for his clients” can reasonably be expected to behave dishonestly toward his clients. [Edit: Or, as Windy Pundit Mark Draughn writes, "you have no right to be surprised when you discover he's ripping you off and screwing your wife."]

Let a werewolf into your house, and you’re likely to get bitten.

Politics

It’s that time again, when voters in about 20 states get to choose a president for the rest of us. Being in Texas, where I get only a symbolic vote in the presidential election, I am at some leisure to observe the mechanics of the election and consider how they might relate to the art & science etc.

There’s not a whole lot of difference between the two major parties. That’s what comes from having a two-party system: the parties cluster close together in the middle of the political spectrum because if one moves closer to its own pole (socialism on the left or fascism on the right), increasing its distance from the other party, it will lose some of the voters between the two.

I don’t like being lied to. A politician who lies to get a vote doesn’t deserve it. I also don’t like politicians trying to scare me. I have a pretty good idea of how dangerous the world is, so I recognize political scare tactics as untruths, if not lies. I believe that government should be a little smaller than possible.

When Republicans are in the process of making government bigger, I’m a Democrat. When Democrats are, I’m a Republican. Now, after eight years of a Republican administration spending money (my children’s and grandchildren’s money) like sailors on shore leave, and giving that money to big businesses, there’s not a snowball’s chance in hell that I’d vote for anyone from that tradition for president. I think that’s a pretty widely-held position. So it’s interesting to see what the Republicans are doing to try to keep the White House. Not discussing the issues, certainly — that’d be death to McCain’s campaign, and the campaign knows it.

I’ve written quite a bit on government’s use on all levels, including in courtrooms, of fear to induce the people’s compliance (before I started using categories; search for “fear”). That works, but it’s nothing new (how much of the Republican Party’s election playbook is based on Joseph Goebbels’s?).

What interested me about the convention speech written for Sarah Palin was the invocation of a quintessentially American fear: “those people think they’re better than us!” and its natural follow-up: “let’s teach them a lesson!” There is little we Americans dislike more than the idea that someone, somewhere, might have a sense of superiority to us.

Whether based in fact or not (”bitterly clinging to religion and guns” on the one hand, we’re “a nation of whiners” on the other), this is a potent metaphor in American politics . . . and in the courtroom. The Republican speechwriters’ description of how those Democrats feel about people from small towns probably matches how most Americans think lawyers feel about them.

The Republican campaign managers’ hope (that the voters’ visceral reaction to “they think they’re better than us” will distract them from the issues for long enough to hold on to the White House) would have been relentlessly focus-grouped before the metaphor was released into it into the wild at the convention. Lawyers will do well to remember this. Jurors are more likely to identify with the witnesses (and sometimes even the defendant) than with the lawyers or the government.

A lawyer who goes into court with anything other than a humble appreciation for the time that witnesses and jurors are spending to help get a matter sorted out is asking to lose the trial.

The Secret to Winning: Bennett-Style

It all started with Gerry Spence’s The Simple Secret of Winning post. Manhattan Paladin Scott Greenfield was inspired to make fun of Spence’s formula for winning. Connecticut public defender Gideon, in turn, was inspired to post his secret to winning: “Knowing your rear from your face, or, preparation.” Even better, he made it a meme, and tagged Scott, South Carolina criminal defense lawyer Bobby Frederick, and me.

Bobby G.F. says that there is no secret, and then goes on to post eight suggestions: learn from others; try cases; know the law; prepare (”If you worked nights and weekends preparing your case for trial and covering every base, odds are you are miles ahead of the other guy”); win without fighting; tell your story; tell your client’s story through the prosecution’s witnesses; and care about your client. (Somebody needs to have a word with Bobby G.F. about the power of trilogy.) Bobby tags Maryland criminal defense lawyer Jon Katz, Hostis Civitas, and Western Justice.

The Manhattan Paladin, Scott Greenfield, agrees with Bobby G.F. that “there is no secret”, but recommends that you see each case as unique. “While many appear the same on the surface, they never are in truth. Even the most pedestrian case has a unique element to it, and it’s up to the lawyer to find it. . . . There is no magic place to look to find this distinction, but it’s there. Somewhere. Just keep looking.” Paladin tags Crime and Federalism, Austin criminal defense lawyer Jamie Spencer, and Omaha criminal defense lawyer David Tarrell with the meme.

I disagree with the Manhattan Paladin and Bobby G.F.: there are secrets to winning cases. They is no secret in itself sufficient to win cases, but there are ways to improve your client’s odds that are not commonly recognized or properly understood; some of them even go against traditional wisdom.

Gideon and Bobby both write about preparing. Here’s one of my secrets: prepare just enough, then stop. Don’t just do something, sit there. Play with the kids. Just play. Read a book — something non-law-related. Write a poem. Take the dog for a walk. Get some exercise. Sleep.

The object of this exercise is to solve the puzzle with which the case presents you. Sometimes the puzzle is patent — how do I convince a jury that she didn’t know the cocaine was in her pocket? — but more often the puzzle is the meta-puzzle — what is unique about this case? what is the puzzle? or, in criminal defense lawyer terms, what the hell is our defense?

Solving such puzzles requires inspiration. Inspiration doesn’t come when it’s sought; inspiration comes when you’ve fed all of the available data into your brain (by preparing fort trial and familiarizing yourself with the facts and the law) and then turned your attention to other matters. In order to win the trial, you have to give your brain time to work on the puzzle outside of your conscious attention. You can’t force it. And that, friends, is one of the secrets of successful criminal defense trial lawyering.

I’m tagging Life at the Harris County Criminal Justice Center’s AHCL for a Harris County prosecutor’s view, my fellow Houston criminal defense lawyer Grant Scheiner (don’t foist this one off on young Matt Skillern!), and . . . hmm . . . how ’bout Dallas criminal defense lawyer Robert Guest?

Naptime in the Courtroom

Last weekend I read Brain Rules, by John Medina. It’s a slender book concisely describing 12 of the principles that govern how our brains work, and suggesting ways that businesses and schools might take advantage of these principles to help employees and students perform and learn better.

As knowledge workers and creative workers, we should be interested in how our brains work, so that we can extract as much from them as possible. As advocates, we should be interested in how our audiences’ brains work, so that we can best tell our stories (and disrupt our adversaries’ stories).

Rule #7 is “Sleep well, think well.” I found two important points for criminal defense trial lawyers in this rule.

First, studies have shown massive losses in overall cognitive skill and
performance resulting from nights with little or no
sleep. “Sleep loss hurts attention, executive function, immediate memory, working memory, mood, quantitative skills, logical reasoning ability, general math knowledge.”

So if it’s the night before trial and you’ve got the choice between a) staying up late writing your opening statement; and b) going to bed early and getting a good night’s sleep, choose (b). And if you’re so busy that your practice is keeping you from getting a full night’s sleep most nights, it’s time to cut down on the number of clients your representing by doubling your fees.

Second, there is a period of time in the mid-afternoon when most people experience transient sleepiness. “It can be nearly impossible to get anything done during this time, and if you attempt to push through, which is what most of us do, you can spend much of your afternoon fighting a gnawing tiredness. It’s a fight because the brain really wants to take a nap and doesn’t care what its owner is doing.” This sleepy time, which Medina calls “the nap zone”, is

not related to a big lunch (although a big lunch, especially one loaded with carbs, can greatly increase its intensity). It appears, rather, to be a part of our evolutionary history. Some scientists think that a long sleep at night and a short nap during the midday represent human sleep behavior at its most natural.

There are at least three things that we need to think about here: our own midafternoon mental functioning, which is ordinarily diminished and might be further diminished by a carb-heavy lunch; our adversaries’ mental functioning, which suffers the same diminution; and juries’ mental functioning.

We probably don’t want to assign ourselves any intellectual heavy lifting in mid-afternoon . . . unless we know that the prosecutors have loaded up on beans and rice at lunchtime. The nap zone is not the best time to tell the jury a part of your story that you want them to think about or remember. If you have the flexibility in the order of storytelling, keep your most important witnesses out of the nap zone.

On the other hand, the nap zone might be the perfect time for the jury to be hearing the part of your adversary’s story that you don’t want the jury to remember; if bad facts are going to come out, better that they come out at two in the afternoon, because the jurors are fighting sleep and not paying a lot of attention.

There’s much more for the scavenging in Brain Rules. Here are the twelve rules:

Rule #1: Exercise boosts brain power.

Rule #2: The human brain evolved, too.

Rule #3: Every brain is wired differently.

Rule #4: We don’t pay attention to boring things.

Rule #5: Repeat to remember.

Rule #6: Remember to repeat.

Rule #7: Sleep well, think well.

Rule #8: Stressed brains don’t learn the same way.

Rule #9: Stimulate more of the senses.

Rule #10: Vision trumps all other senses.

Rule #11: Male and female brains are different.

Rule #12: We are powerful and natural explorers.

I’ll write soon about Good Fear, Bad Fear (inspired by Rule #8), and probably some other topics from the book, but I can’t cover all that I learned from it. Buy it and read it yourself.

Read this Book

If you’re a criminal defense lawyer interested in the art of criminal defense trial lawyering, order Free Play: Improvisation in Life and Art and read it now.

The Scavenging Thread

I like to read about fields other than law (improvisational theatre, comedy, chaos studies, interrogation, acting, survival, hypnosis, the Tao, NLP, aikido, etc.) that I think might be relevant to the practice of criminal trial law. I’m always looking for more suggestions — for example, when Western Justice wrote about Statement Analysis, I ordered the book (which I’m reading now).
Please take a few moments to leave a comment and share your own suggestions. If you could give me a few words on how you relate the material to what we do, it’d be most helpful.
Thanks.