Posted On: October 28, 2008

The Anatomy of a Trial

November 10 marks the launch of my newest book, Anatomy of a Trial. Here is a sample from the introduction, which describes why I wrote the book and why it may be of interest.


In 2004, a University of Wisconsin law professor named Marc Galanter published a revealing report entitled The Vanishing Trial. It documented what so many litigators have witnessed year after year, decade after decade: a drastic decline in cases going to trial.

To give you a sense of how extreme this trend has become, consider these statistics from Galanter’s paper: In 1962, 11.5 percent of all civil dispositions filed in U.S. district courts went to trial; by 2002 that figure had dropped to 1.8 percent. The decline has been steady and steep, and as a result, a whole generation of litigators is moving up in the profession with little or no practical experience trying cases in a courtroom.

The causes of this phenomenon are for another book. This volume has been designed for young trial lawyers eager to gain an appreciation of how to handle real problems encountered during jury trials. Theories about trial advocacy abound and can be read about in numerous books. But as any experienced litigator knows, theory is often complicated, and sometimes compromised, by the realities of an actual trial.

For illustrative purposes, this book considers the key phases of jury trials (opening statements, direct and cross-examination, closing arguments and voir dire) in the light of a particular case: United States of America v. David Rosen. I chose this case in part because of the subjects it involved – campaign finance, national politics, and Hollywood fundraising, among others – but primarily because the trial was rigorous and challenging.

The case arose out of a lavish fundraising event held in Los Angeles during the Democratic National Convention in August 2000. Billed as “A Tribute to William Jefferson Clinton,” the event involved a dinner and concert that included performances by Cher and Diana Ross, among others; a parade of celebrities attended, contributing tens of thousands of dollars to a joint fundraising committee established in part to support Hillary Clinton’s bid for the U.S. Senate. The ensuing indictment focused on the role a young fundraiser played in organizing the event and whether he caused false reports about its costs to be filed with the Federal Election Commission (FEC). David Rosen, the defendant, was the Clinton campaign staff person who, at the age of 33, went to Los Angeles to coordinate and oversee the gala on behalf of the joint fundraising committee. The entire event was put together in a few weeks.

The violation of law alleged by the government was based on highly complex and arcane rules established by the FEC. Under those rules, the joint committee could legally allow the company, Stan Lee Media, to pay for an unlimited amount of the costs of the event, but whatever amount was paid had to be reported, by the joint committee on its public disclosure reports to the FEC, as an in-kind contribution. Such an in-kind contribution also had to be accounted for by the joint committee in a complicated way that involved transferring funds from the account from which the Clinton campaign would obtain its share of the event’s proceeds.

Continue reading " The Anatomy of a Trial " »

Bookmark and Share

Posted On: October 21, 2008

The Ted Stevens Trial and the Lesson of the Memorable Image

There is something to be said about focusing a witness examination around one indelible image. For the prosecution in the trial of Alaskan Senator Ted Stevens, the image of choice was a $2,695 vibrating Shiatsu massage lounger from Brookstone.

Reporter Dana Milbank narrates the prosecution’s cross-examination of Sen. Stevens in today’s Washington Post. The senator faces seven felony counts charging that he deliberately concealed on Senate ethics forms $250,000 in goods and services he received for his home in Alaska. He contends that the massage chair, among other items, was borrowed from friends or given despite the fact he declined the offers.

To convince a jury of the merits of a case, attorneys want to provide memorable testimony that will overwhelm competing arguments. The prosecutor in the Stevens trial seems to know this lesson well. Brenda Morris used the massage chair as a prime example of the alleged goodies received by Sen. Stevens, describing the chair in her opening statement as the "expensive massage chair from Brookstone -- you know, that gadget store you see in all the malls."

The chair came up again in multiple witness examinations, most importantly in the cross of the defendant himself. Here is the penultimate moment cited by Milbank:

Prosecutor Brenda Morris, toward the end of her cross-examination of the senator yesterday, settled in for a long discussion about the chair, which Alaska restaurateur Bob Persons bought for Stevens as a gift seven years ago -- but which Stevens never reported on his Senate disclosure forms.

Continue reading " The Ted Stevens Trial and the Lesson of the Memorable Image " »

Bookmark and Share

Posted On: October 7, 2008

The Art of Evading Questions

The Washington Post had an interesting piece yesterday on the art of evading questions. The story contrasts Alaska Governor Sarah Palin’s blunt refusal to answer questions during the VP debate last week with Obama, Biden and McCain’s more subtle techniques of evasion.

For advocates caught between a rock and a rhetorical hard place, the article might offer some helpful tips. But judges asking questions in court won’t be fooled the way “Joe six-pack” might. If you have no good answer for a question from the Bench, it is probably wiser to err on the side of honesty, frankly admitting that you cannot respond fully to the question at this time but will submit a supplemental memorandum if the court desires, or state "I am not sure but under the circumstances the answer could only be..." When pushed against the wall you might state, "while I am not certain, my guess would be..."

Best solution, be prepared and know your subject matter. Whatever you do, don't bluff. An evasive answer, even as artful a dodge as Obama’s answer cited in the Post article, will hurt your ethos with a sophisticated listener.

Bookmark and Share