The Art of Advocacy

Indicting a public official is always a cause for attention. The prosecutor believes he or she is duty bound to proceed based on the facts uncovered. The defense exclaims that the case is tissue thin. The fourth estate rallies to the cry of cause célèbre. The public reads, listens and waits for the wheels of the judiciary to grind forward as they inexorable do.

In Maryland the State Prosecutor indicted the Mayor of Baltimore in a twelve-count indictment. The charges included perjury for failing to report gifts from a developer on ethics forms, theft for stealing gift cards worth more than five hundred dollars, and misconduct in office. Last week the judge assigned to the case dismissed five of the counts, leaving seven remaining, those relating to the theft. The basis of the dismissal boils down to a doctrine known as legislative immunity, or the “speech and debate” principle, which holds that an elected official’s votes, or bills she may have introduced in a legislative body, cannot be used as evidence against her. (This principle exists to prevent politically motivated prosecutions against elected officials.) In this matter, the prosecutor had presented the grand jury with such evidence in building the perjury case against Mayor Dixon, thus compelling the judge to question the integrity of the indictment and dismiss five of the counts.

The question of whether the State Prosecutor should appeal is an important one. An appeal would cause delay of the trial. Delay often works to the advantage of the accused. On the other hand, the prosecutor may be thinking of his role as public servant and seek to reverse the court's decision on theory of legislative immunity to clear the way for other cases in the future. What should the prosecutor do? Analyze the law and consider the likelihood of reversal. If he believes he has a shot, he should go for it. His responsibility may be to advocate for reversal so that he can proceed with all of the charges and, when justified, prosecute others who would hide behind the immunity. The defense, of course, must continue to battle. In doing so, they will be not only fighting of their client, but also for the need for such immunity to protect the independence of the legislative branch of government.

As an alternative to an appeal, the prosecutor could take a narrower view of the matter and attempt to re-indict Mayor Dixon for perjury and misconduct in office, this time excluding the evidence the judge deemed improper. Indeed, the judge’s opinion suggested the prosecution might take this step, and the Sun advocated for it in a recent editorial.

The trial is scheduled for September unless the special prosecutor appeals. I look forward to following the proceedings. I am familiar with the lawyers and the judge in the case and expect it to be well tried.

If you can believe the Wall Street Journal, lawyers are dressing up these days. Christina Brinkley reports here that many attorneys are scorning business casual in favor of more formal attire. The argument for this? “[H]igh powered attorneys should look like high powered attorneys” and anything else is “sending the wrong signal.” The law firm cited is unusual in its adherence to a strict dress code, but I agree that lawyers should acknowledge the expectations of their various audiences, especially those inside the courtroom, and dress accordingly.

At trial, this becomes extremely important. During the first moments of an opening statement, your audience of judge, jury members and arbitrators will be forming key impressions of you and your case. I generally recommend conservative attire that is compatible with your personal style and the audience’s expectations. A couple of opinions on attire and appearance:

* Avoid bow ties. Keep to traditional suiting if at all possible.
* Choose jewelry carefully. Sparkles are distracting — including those in cuff links. And, expensive jewelry can create a gulf that interferes with having the jury “identify” with the lawyer.
* Arrange your materials in an organized and controlled manner. If you are constantly groping for exhibits, you might lose credibility.
* Use the space in the courtroom. Consult the rules and judge’s staff before trial on where and how freely you can move.

There is room to disagree about what to wear and how to look at trial, but there is no disagreement on the importance of appearing natural and comfortable. Whether or not you leave the bow tie at home, your appearance engenders confidence through projecting a powerful and controlled image.

Technology can work wonders in the courtroom. The combination of high-tech imagery and low-tech witness examination often creates vivid, lasting memories in the minds of jurors. As time goes on, the technology becomes more sophisticated, but its purpose remains the same: explaining your case and persuading the audience in a memorable fashion that trumps your opponent's story.

By way of example, see this piece on Law.com by David Horrigan: “Technology Puts a Dream House on Trial.” It relates how, in a dispute between DreamWorks CEO Jeffrey Katzenberg and Goodyear over heating hoses installed in his vacation home, both teams used video presentations. The plaintiff’s included a computer-aided tour of Katzenberg’s home and animated CAD drawings while the defense used a straightforward presentation of blueprints and related drawings through TrialDirector 5.0 software.

As technology has evolved, there are now more ways than ever of showing exhibits in a courtroom. In my view, though, it is not the sophistication that counts, but how well the imagery persuades. Lengthy presentations, no matter how elaborate and well done, may bore the audience. Perhaps the most effective way to work with video at trial is to weave imagery into witness examinations, so that the oral testimony is reinforced by the visual, the abstract becomes concrete, and everyone in the room can see what the witness is reviewing as he responds to questions. Particularly during long direct or cross examinations, use of audiovisual aids helps keep the jury engaged in your story.

The Washington Post recently wrote an interesting piece on trial attorneys using elaborate videos for jurors to gain some understanding of a victim’s life and the pain of the family. These videos offer pictures, performances and even emotional background music to represent the victim. The Supreme Court via Chief Justice Rehnquist allows videos to offer a “brief glimpse” into the lives of victims. While these videos may stretch the bounds of that glimpse, the Supreme Court refused to hear any appeals to cases using these types of exhibits.

The excellent article by Jerry Markon suggests that trial attorneys should consider this a “green light” for use of these videos in the future. While many of us take pride in making decisions based on logic, we all appreciate that most decisions are based in part on emotions. As you strive for credible, memorable, and clear testimony, video exhibits can help pull the “emotional heartstrings”.

Before attempting to show a video it is imperative to advise the opposing side of your intention to use the video and show it to them. This should be done with enough time before trial to obtain a court ruling. In most instances the applicable discovery rules will govern this situation. Additionally, when using videos it may be helpful to obtain testimony from a family member first and then introduce the video exhibit, which will corroborate key points. Once such a video has been viewed, you can ask the witness to review and explain the video, which will serve as a memory anchor for the jury.

Litigators should use caution, however, as histrionics are never appropriate. Avoid overly emotional appeals designed to manipulate the jurors. Such presentations may end up hurting your credibility.

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" »

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.

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" »

The officer defendants in the Sean Bell case were acquitted Friday, prompting Mark Fass of the New York Law Journal to write an article about the strategic wisdom of waiving the right to a jury trial in certain cases. You can't argue with success; the defense counsel in the Bell case clearly did fine work and were correct to avoid pinning their clients' hopes to jurors who may well have been swayed by their emotions to convict. New York Supreme Court Justice Arthur J. Cooperman found the defendants not guilty on all counts.

As Fass points out, opting for a bench trial is a tried-and-true strategy for defense attorneys representing law enforcement clients in jurisdictions where citizens may have negative opinions of the police.

Fass quotes one defense attorney's explanation of the rationale:

"With a jury, there's always a chance that emotion can enter the process," said Mark Bederow of Thompson Hine, who recently represented R. Lindley Devecchio, the former FBI agent who opted for a bench trial in his successful defense of four murder charges.

"With a judge, the expectation is that [the decision] will be purely on the facts and the law, and that extra-judicial influences will not play a role. And I think you saw that specifically in the Bell case."

But defense attorneys should be careful not to presume that judges are immune from "extra-judicial influences."

Continue reading "Sean Bell Case Acquittal and Waiving the Right to a Jury Trial" »