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Recent Blog Posts
Jury Selection: Simple Rule 14: The Atticus Finch Rule
Why did they stand up for Atticus Finch? Because he was an upright, honest man fighting for what he-and they-knew was right.
Simple Rule 14: The Atticus Finch Rule:
Be the lawyer they want to stand up for.
Simple, right? Not easy, in some cases maybe not even possible, but simple. Atticus Finch acted with courtesy and dignity. He didn't lie, cheat, or rant.
Even in the worst case for the defense, there are human beings on the other side. The jury panel is watching us and listening; they see how we behave toward the judge, witnesses, court staff, prosecutors, and most particularly them. How we treat other people reflects on us and on our clients.
This doesn't mean we have to be meek. Sometimes in the course of battle feelings get bruised; the jurors know that. They will forgive us our zealous advocacy, but they won't forgive us our rudeness.
Nor will they forgive us if they catch us lying, or cheating, or pretending to be something we aren't. And since they can't punish us except through our clients, that is what they will do.
Jury Selection: Simple Rule 13: The Undertow Rule
In Simple Rule 12: The Field Trip Rule, I talked about how the jury panel is a group, and you have to stay with the group.
This group has sixty heads and sixty bodies, each one of which is throwing off communications cues every second.
It is not possible for one lawyer, talking to sixty people, to listen to and record what one person says and how he says it while tracking the nonverbal communication provided by the other fifty-nine.
Thus Simple Rule 13: The Undertow Rule:
Never swim alone.
Get someone on your team to pick the jury. It doesn't have to be some fancy expensive jury consultant (though it can be). It's an excellent assignment for a young lawyer seeking trial experience, but your assistant doesn't even have to be a lawyer. All socially-ept people are experts, though they might not be aware of it, at reading faces and body language. You want someone at your side to notice that Mr. Bryant was looking crosswise at you while Ms. Velasquez was hanging on both lawyers' every word.
Reiteration
When you outsource your marketing, you outsource your ethics and your reputation.
It applies to judges running for reelection as well as lawyers looking for business.
That's all I'm sayin'.
Two-Way Street
I often (well, I used to often) gripe here about the want of real-world experience (that is, experience outside the high school–college–law school track) in prosecutors. As a broad generalization, it works great.
I believe that before anyone is put into a job that includes making decisions about what punishment other people deserve for their misdeeds, he ought to spend a year or more being (metaphorically) kicked in the teeth, worrying about where next month's rent is going to come from, how he's going to pay for those car repairs, whether he can afford to see a doctor about that pain. More, he should have spent significant time accountable to other people for their health and safety. (Ex-cops, oddly enough, are some of the most reasonable prosecutors.)
But I'm not beating that horse today. Many prosecutors (those who have been there) agree with me, as do most criminal-defense lawyers.
It's fine if we talk about it amongst ourselves, but don't go throwing around "lack of real-world experience" as a negotiating position.
Jury Selection: Simple Rule 11: The Playing Doctor Rule
Back to our originally-scheduled program:
So you're in jury selection, and you want to get the jurors talking about the things that maybe they're not used to discussing in front of 60 near-strangers. What do you do?
Well, everyone knows The Playing Doctor Rule: I'll show you mine if you show me yours, right? That's our 11th Simple Rule for Better Jury selection. If you want to see theirs, you've got to show them yours.In jury selection, show them what?
Whatsoever a man soweth, that shall he also reap.
You want truth? Tell them the truth. If you lie to your jury, they'll lie to you.
You want depth? Go deep. If you only talk to the jury about shallow things, they'll reciprocate.
If you want your jurors to talk about their prejudices against the minority group your client belongs to, what do you need to talk about? Your own prejudices.
What's that you say? You don't have any prejudices? Bullshit. Everyone has prejudices. It's entirely natural; we're hardwired by natural selection to prefer members of the group we identify with over members of other groups. We can overcome our hardwiring, but not by pretending the hardwiring doesn't exist.
More Andy Nolen Marketing Follies.
Maybe it has something to do with the lousy economy. I'm spending a lot of blogging energy whacking the moles of unethical lawyer marketing. If we-the bar, honest members of the practical blawgosphere-let people like Andy Nolen and a Fresno criminal defense alwyer slide with their flaming astroturf and their content scraping, we'll only see more such conduct from bad lawyers who are desperate to make a buck in a wretched economy. When I shine Defending People's spotlight-o-truth on lawyers who are, in my view, cheating, I feel a little bit guilty at spending some of the good will I've accumulated over the last two years in doing something that adversely affects some poor schmo who is probably just trying to make a living the only way he knows how. But the feeling passes quickly.
I wrote here that nothing I've seen Andy Nolen do gave me any reason to think that he was smart enough to accept his beating and move on. Well, I suspect I was right: a day or two after that post, someone used the initials "SM" to post a fraudulent review of me to Avvo.com (don't bother looking; Avvo has taken the review down). SM claimed that I had represented him in the last six months; ironically, his "review" was sandwiched between two glowing reviews left by the only client I've had in the last six months with those initials (her case was dismissed, not because of my genius but because an honorable and compassionate prosecutor did the right thing).
Is it Just Me?
Despite the very clear line above the comment box saying, "Leave a (non-anonymous) Reply," some North Carolina whackjob tried to leave a comment under the name "JustAnotherVictim" an hour ago. Less than half an hour later he tried to leave another comment:
Why remove my post? I just thought it was funny that he stated almost exactly word for word what Jackson said. Nothing negative or insulting about it.
Then, in the following four minutes, he left four more comments:
You my "friend" are a POS
You my "friend" are a POSYou my "friend" are a POSYou my "friend" are a POS
You my "friend" are a POS You my "friend" are a POS You my "friend" are a POS
and then:
You my "friend" are a POS You my "friend" are a POS You my "friend" are a POS You my "friend" are a POS
Not only was I required to approve his comment, but I was also required to so within half an hour of his leaving it.
Is it just me, or do blogs bring out the nutcases?
Helpful Hint
If you're going to fake your suicide to avoid prison, it's better not to write the note in the past tense.
Criminal Liability for Judicial Murder in Texas
I've been meaning to write this piece for a while, either as a blog post or as the framework for a piece of speculative legal fiction. Cindy Henley's and Jeff Gamso's comments to my post about the Cameron Todd Willingham case prompted me to do it now, rather than later....
If you think I have the law wrong and you can back it up with cites, let me know. But if you are a death penalty fan and wish to argue that the death penalty is morally justified, go do so elsewhere. This post is not about what Texas law should say, but about what it does say, which is:
A person commits murder if he intentionally or knowingly causes the death of an individual. A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
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