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Recent Blog Posts
Cops Say the Nicest Things
"When I heard that you had been hired, I knew this was going to be a really tough case."
The Motorcycle Rule of Cross-Examination
When cross-examining an unknown witness, you must observe the Motorcycle Rule. This is the rule that kept me alive through years of riding a motorcycle in Houston traffic (for a while, I had no usable car, and rode everywhere). The Motorcycle Rule, for those not familiar with it, is this:
They are all out to get you.
On a motorcycle, that means that you remain vigilant all of the time, and never assume that the other driver is going to do anything other than try to hit you. Pretending that the other driver is trying to hit you, you make it impossible for him to do so (or as near impossible as you can while still making your way to your destination.In the courtroom, the Motorcycle Rule means the same thing: you make it as near impossible as you can for the witness to hurt you, while still telling your story to the jury.An illustration: today I cross-examined a witness in my self-defense case. After the cross-examination, the court took a break and I visited with the detective. I told him that I had enjoyed it, and he said it was "interesting" and that he'd been looking for me to "open the door" to certain opinions he had - for me to give him reason to expand his testimony beyond that which he had been permitted to say on direct. I had followed the Motorcycle Rule, though, and had brought out my client's story through the detective without opening the door giving him an opportunity to make things worse.Until they demonstrate otherwise, they are all out to get you.
Letter or Spirit?
[Edited 11/7/2007 to ensure compliance with TDRPC 3.07. Discretion is the better part of valor.]
When defending a client, my general style is to go riiiggghhhtttt up to the line and lean waaaaaayyyyyyy over. In one white-collar trial once, a long time ago, I asked a question of a witness today that the prosecutor thought crossed over the line. The prosecutor, when the jury was sent out, started talking at me about how I'd just "made my reputation." "This is not the last case we'll have together, you know that," he said.
(I marked it down in my calendar: after practicing law for years, at 4:30 on a Thursday afternoon, I had made my reputation with a single eight-word question.)
Why would that prosecutor expect me to do anything other than make putting my client in prison as difficult as possible? If I had been representing him, would he have wanted me to ask that particular question? Hell, yes (and for the same reasons that it so incensed him)! But prosecutorial sanctimony (a trait necessary to that field of the profession) wins out, and that day hadn't been going very well for him anyway, so he got mad. (It would have helped my client more if it had happened at the beginning of the day instead of the end.)
A Much Better Day
[Edited 11/7/2007 to ensure compliance with TDRPC 3.07. Discretion is the better part of valor.]
Three of the State's civilian witnesses testified today. They didn't do us much harm - they actually disproved a chunk of the prosecutor's opening statement, and proved a good chunk of our opening for us.
One witness testified on direct that she saw a guy with a handgun, and then testified on cross that she didn't really see that guy with a gun. She also testified on cross first that the car stopped after making a u-turn, and then that it didnt stop, but just slowed way down.
Tomorrow, more cross - probably some cops, crime scene officers, and so forth.
The fat lady probably will not have sung until three of my client's guests that night (the three who were awake and are available for trial) are done on the stand. Until their testimony, I expect fairly smooth sailing.
Trial Fuel
We're taking a lunch break from my self-defense trial. When I'm in trial (that's "on trial" for you New Yorkers), I eat low-carb meal replacement bars and drink lots of water. The bars are easy to carry in my trial box, they don't go bad, they don't make my blood sugar spike and crash in the afternoon (so I stay sharp), and they're fairly edible.
What about you? Leave me a comment and let me know how you keep your engines running during trial.
Not My Finest Day in Court
We got a jury picked on the self-defense case. I got to go dead last, after a) the judge; b) the prosecutor; and c) counsel for my codefendant. We started at about 11, and I got up to talk with the panel at about 3:30.
I was tired.
The panel was tired.
The law is muddled.
It was not pretty.
Picking a Jury
I'm in trial today, picking a jury in Houston on the case that was last set for trial on October 1st. (I'm actually sitting in the courtroom during the lunch break between the judge's voir dire and the State's.
My client and his brother are accused of murder; they thought they were about to be victims of a drive-by shooting, so when they heard gunshots they started shooting as well.
The brother is represented by a lawyer whom I trust absolutely, which takes a lot of pressure off me - I won't coast (though I probably could), but I don't have to worry about fighting cocounsel as well as the State. The third and fourth codefendants are fugitives (one ran after the last trial setting), which helps as well - the guilty guys (the ones who started the shooting) are nowhere to be found.
Compassion Revisited
One commentator to Scott Greenfield's recent post, The Battle Lines are Drawn, wrote:
If you are worrying about harm to others you are in the wrong line of work. Your sole duty is a duty of zealous advocacy to the client. We don't have a duty to do justice. Harming others is part of the job if it serves the client.
While I agree withe the last two sentences - we don't have a duty to do justice (even if we knew what justice was, we wouldn't have a duty to do it), and harming others to help our clients is occasionally part of the job - I couldn't disagree more with the overarching sentiment. I've written on several occasions about how compassion is a part of the profession; criminal-defense lawyers are compassionate - they have to be to take care of the people whom the rest of society condemns.
Vote Early, Vote Often
Our friend Scott Greenfield's Simple Justice blog is nominated for Best Law Blog in the 2007 weblog awards. He's competing against much more general blogs with broader readership. Go vote for Scott and SJ; you can do so once every 24 hours. A vote for Simple Justice is... a vote for Simple Justice.
The Ethics of Snitching 2
Norm Pattis writes about lawyers who won't help people snitch (hat tip to Scott Greenfield); he draws an analogy to the practice of medicine:
I would not consider myself well served by my doctor if he were to announce that a life-saving treatment was available, but that he would not prescribe it because, well, it offends his sensibilities. I want options from my doctor. I want intelligent choices and an assessment of the risks and benefits of my options. Perhaps limping through the rest of my life with one leg would be awkward; but I might prefer that course to death. The choice is mine.
The doctor analogy is interesting because doctors are seldom presented with situations in which they might heal their patients by making other people sick. When they are faced with such situations, they generally don't proceed without consent from the person who will be injured (consider, for example, bone marrow transplants).
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