The Art of Advocacy

How much sarcasm is too much in court? That very question was brought before an appellate court in Connecticut earlier this month when a public defender challenged his client’s guilty verdict, claiming the defendant’s right to a fair trial was compromised by the prosecutor’s aggressively sarcastic style.

According to the Connecticut Law Tribune, the prosecutor used the phrase “lo and behold,” several times and prefaced questions with a heavily emphasized, “You claim….” He also announced, “Good luck for you,” when the defendant testified that he obtained his gun when it happened to fall out of a relative’s pocket.

Though the appellate court upheld the guilty verdict – ruling that sarcasm does not constitute an appeal – a good trial lawyer should proceed with caution when playing the sarcasm hand.

Though there is some case law indicating that a ruling could be overturned if the sarcasm is deemed excessive, your goal shouldn’t be to come too close to that line. You can’t know for sure how the jury will react to your sarcastic tone. Certainly, you don’t want to appear to abuse or bully the witness and lose the jury’s respect. Your goal, particularly in a cross-examination, is to control the witness and if appropriate, to discredit the witness’s testimony, but to do it in a more restrained way than by resorting to sarcasm.

A skillful trial lawyer ought to be able to lead a witness into revealing his foolishness or mendacity without directly mocking him. When you have an adverse witness that has made an improbable claim on direct, for instance, conduct the cross in such a way that you allow him to emphasize the very improbability of the testimony. Repeating back the witness’s hard-to-believe statements can help the jury focus on just how unlikely they really are: “So, the gun just fell out of your relative’s pocket, right on the floor of the living room, correct? And you just picked it up and put it in your pocket, correct?” can ultimately sway the jury in your favor, whether or not you add a sarcastic side note – and you won’t risk having yourself branded a bully.

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" »

For those who plan to tune in to the presidential debate this Friday, here is a cheat sheet on some common logical fallacies. One can only hope these two fine candidates will steer clear of such foibles, but I, for one, am not holding my breath.

Slippery Slope
The “slippery slope” argument falsely assumes that once you take a moderate first step in a particular direction, a catastrophic chain of events will follow. In many cases, a better metaphor would be a staircase with many safe steps along the way.

For instance, one candidate told a radio show that choosing a vice president based on certain non-negotiable positions would send him down a “slippery slope.”

On the other hand, sometimes the slippery slope does exist and can be a legitimate basis for an argument. When you hear language like “opening the floodgates” and “slippery slope” your job is to make certain that the argument is true.

Compound Question
A question like, “Isn’t America tired of Democrats wanting to raise taxes?” is a compound question because it actually involves two or more issues that cannot be accurately answered with a single response. It assumes that Democrats have always wanted to raise taxes and also that you may have a position on the issue. The best response to a compound question is to point out that the questioner has made a false or unwarranted assumption.

Continue reading "Fallacious Arguments" »

Dana Milbank has a revealing sketch of the ongoing "D.C. Madam" trial in today's Washington Post. The prosecutors seem to be holding nothing back in building a case against Deborah Jeane Palfrey. Indicted for allegedly running a prostitution ring made infamous for attracting several Washington luminaries, Palfrey watched as the prosecutors grilled several of her former employees about the services they performed for clients. From Milbank's perspective, these direct examinations were so humiliating, needlessly detailed, and invasive that they discredited the prosecutors.

Here's some of the testimony that got Milbank's attention:

Yesterday, it was the turn of a young naval officer to take the stand; the case will almost certainly end her career. The prosecutor, Daniel Butler, had the woman spell her name slowly and clearly, then had her talk about when she was "aggressive" with a client, when she was "more submissive," when she had a difficult client ("he tried to remove the condom") and how often she got "intimate."

"What do you mean by 'intimate'? "

The soon-to-be-former naval officer looked at him in disbelief. "Touching, caressing," she explained.

"What happened" after that? he demanded.

"Sex."

"What type of sex?"

"Sometimes it was oral sex; usually it was normal."

"Normal?" Butler persisted.

"I'm not sure what you're getting at," the stricken witness pleaded.

"What's normal sex?" Butler again demanded.

Judge James Robertson intervened. "He wants to know if you mean intercourse."

Butler pressed on with more humiliating questions until the judge cut him off. "That's enough," Robertson said. Minutes later, the dazed woman was helped out of the room.

If that's how it truly played out, you have to wonder what the prosecutor was thinking. By simply having to show up and testify, the witness had compromised her dignity. The aggressive questioning was just rubbing salt on the wound. And what were the jurors thinking? It could very well be they sympathized with the woman and wanted the lawyer to sit down.

Prosecutors should be wary of even appearing like they might be abusing their significant powers. A few questions too many can cause the prosecutors' courtroom ethos to plummet. Whether that has happened in this trial, we can't know, but if the defense puts on a strong case, any ill will the jury feels toward the prosecutor could come back to haunt him.

One of challenges of direct is being selective--paring the testimony down to the essential and letting those points speak for themselves. "Less is more" serves as a helpful axiom particularly in examinations involving sensational or emotional testimony.