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Being persuasively real when procedural rules and bench rulings apply, and the objections fly

Mar 24, 2013 Being persuasively real when procedural rules and bench rulings apply, and the objections fly

When I studied in 1979 for my certificate to administer cardiopulmonary resuscitation ("CPR"), the instructor never told us that as we compress the chest during the administration of CPR, some people will have vomit come out of their mouths, the same mouths in which we are supposed to blow air into the bodies of those who are not breathing. This lesson is important to remember as I do trial battle.

At the best criminal defense and trial seminars — like Macon (the National Criminal Defense College) and Dubois (the Trial Lawyers College) — experienced trial lawyers learn how to take their persuasive practices to higher quantum levels. However, a critical missing ingredient in these somewhat rarefied atmospheres is the absence of real prosecutors, real judges and other antagonists throwing real obstacles at our persuading by being real and passionate, arguing from the heart zone (or better yet, from the heart-mind zone) rather than overintellectualizing, and talking to jurors as real people rather than being weighted down by the overformalities and often stilted language too often found in law school, law books, statutes, and appellate court opinions.

The late E.E. "Bo" Edwards was a Tennessee criminal defense lawyer whom I admired very much. At the 1994 National Criminal Defense College Trial Practice Institute — also known as Macon — he was presenting a closing argument in a murder case that one-quarter of the attendees had been using throughout the two weeks as their fact and issue pattern. At one point, this lawyer, Bo, who had always before seemed kindly and mild mannered during the three years I knew him, showed the empty box that represented in his argument the hollowness of the prosecutor’s case, and proclaimed: "Is that justice?" while angrily throwing the empty box on the ground.

I thanked Bo for underlining the powerful persuasiveness of incorporating storytelling and real passion into our trial presentations. He told me that judges will allow such expressions of passion. However, there are limits to what Macon and Dubois methods judges will allow in the courtroom. Some try to put limits on persuading in the first person. Some interfere with persuasive storytelling in opening argument by reminding counsel that "opening is not the chance for argument" and telling lawyers to preface factual assertions with "The evidence will show…" Some judges will say that "You went to the bank?" is not a proper cross examination question without instead asking "You went to the bank, didn’t you?" Other judges will bar some of a lawyer’s cross examination questions, and will try to reformulate their questions, in violation of cross examination being one of the greatest engines in the search for truth.

When jurors are not present, judges may demand even more formality, knowing that such demands will not cause any prejudice with a jury that is not present. One day at a federal motions hearing, I referred to a magistrate judge as a magistrate, and this District Court judge who was previously a magistrate judge quickly reminded me that they are called magistrate judges. Even in front of a civil jury, a judge once admonished me to refer to an opposing witness — when I was not even cross examining that witness — as "Mister ___", even though I think the opposing lawyer was using his first name to try to humanize him. If a lawyer tries walking on eggshells against such admonitions, s/he will come across as less persuasive. Everything in the courtroom is a balancing act for trial lawyers.

More recently, at a Virginia bench trial that I won, during the suppression hearing, the judge asked me if I wanted to question the police officer on a particular point before the officer’s suppression hearing testimony continued to the next stage. I replied "Sure, judge," which met with the judge’s nearly-stern reply along the lines of: "Counsel, there are only two possible answers to my question: ‘Yes or no.’" This judge had never seen me in action before, and I do not know whether or not that partially informed his directive. Some newer trial lawyers may have been rattled by this. I instead have dealt with enough judicial directives for formality and other procedural limits that I opened my heart to the judge and replied "Yes, judge," and proceeded to obtain cross examination answers that further helped my road to success in this trial, and with no further judicial admonitions.

Nothing, then, beats experience for trial lawyers, not only in the courtroom, but in life, including with the actual or proverbial result of experiencing vomit when trying to help someone else. Persuasiveness comes from being as real as one talks and acts when sitting with friends for coffee, because to not be real is to be false and not-credible. However, to varying degrees, judges and court rules demand certain levels of formality, starting with standing when the judge enters and exits the courtroom, not interrupting the judge when s/he is talking, and following written and judicial rules and orders governing the case. If a judge, as a trial lawyer before becoming a judge, had sufficient opportunity to learn and apply the lessons of Macon and Dubois, they likely would give lawyers more leeway to apply the methods of Macon and Dubois.

Once the judge feels confident that a trial lawyer will follow the procedures established by governing rules and law and by the judge, then the judge may be more likely to give the lawyer more leeway in trying his or her case. As a case in point, not long ago, I had my first bench trial before a particular federal magistrate judge, for drunk driving. The prosecutor was very new to prosecuting, having been rotated recently from a Justice Department position to which he was going to be returning. In response to some potentially very damning direct examination questions that the prosecutor asked of the police officer who stopped my client’s car, I made objections. Around five minutes into the trial, the judge said something along the lines of: "Mr. Katz. If this trial continues along these lines, we are going to be here a long time today." I replied: "Judge, from my experience defending over one hundred drunk driving trials, it does not appear that this trial will take us past the lunch hour."

The judge subsequently gave me more leeway, perhaps after he saw as the trial unfolded further that I knew what I was doing and was following the governing rules and law, and after I told him how much experience I had with such trials and anticipating that we would still finish by lunchtime, which in an unspoken fashion gave me a time budget to work with lest I informed the judge that I thought the trial would take longer than I had anticipated. Perhaps the judge was seeking to assure that my time limits in trying the case fit sufficiently within the own time limits that he wanted.

One reason to strongly consider opting for jury trials when they are available (and none was available in this federal DWI trial, because it was a so-called "petty offense" charge jailable not over six months) is that jurors generally have a less formal attitude than judges — and sometimes more of a beneficially open mind, or a tendency to be a hung jury — and judges are likely to be less formal in front of jurors lest they alienate and detrimentally confuse them.

Many courtrooms are overly formal to begin with, often appointed excessively expensively, and often furnished in august and lifeless ways, where the only human design touch sometimes is with portraits of former judges — some born over a century ago — often unsmiling. They often have no windows, whether or not that is for security purposes. One of my favorite courts — for both the entire building and courtroom — for not having excessive formality or lifelessness is the District courthouse in Ocean City, Maryland, even though the courtroom is windowless. The Ocean City courthouse is just three blocks or so from the beach, which perhaps offsets excessive formality there.

Speaking of Maryland, in general, Maryland trial courts feel more informal to me in dealing with judges and procedures than the remaining courts where I practice. The federal courts usually seem to be the most formal. Virginia trial courts seem to be a little less formal than the D.C. Superior Court, perhaps if for no other reason than that the Superior Court procedural rules heavily mimic the federal court trial procedural rules. Going from jurisdiction to jurisdiction, I need to remember to shift gears as to levels of formality, procedures and even terminology (calling prosecutors assistant commonwealth’s attorneys in Virginia, assistant state’s attorneys in Maryland, and assistant U.S. attorneys or assistant attorneys general (depending on the case being prosecuted) in Superior Court).

Well-placed genuine humor can sometimes offset the level of formality with no resistance from the judge. Recently when I was trying, successfully, to convince a trial judge to reschedule my trial, in open court I mentioned that the police officer’s next trial date of April 1 fell on my birthday. That gave the judge a chance to say that he could make light of my birthdate, but was not going to do so. In this lightened atmosphere, the judge granted my continuance request. In another instance, I was trying to persuade (with ultimate success) a judge who I rarely saw smile before, not to jail my client for driving 92 miles per hour in a 50 mile per hour zone. Inspired in the spur of the moment, as I told the judge how my client did not notice how powerfully his then-new BMW went from 9-to-90 mph, I threw in: "Maybe he would have been wiser to drive a Ford." An audience member saw the judge covering his apparent smile over the joke. While cross-examining a military witness at the Plowshares’ depleted uranium trial, I asked whether the witness saw names inscribed with an awl on the hammers that were used by the peace activist defendants to disarm the two warthog warplanes involved in the case. The witness asked what an awl is, and I replied that it is an instrument to write words on wood, and "if you are like me, to then get a C-grade on the woodworking project." I think the jury laughed at this self-deprecating humor, possibly making it more inclined to open its ears and hearts to the defendants’ case.

Well-placed humor can relieve tension and help persuasion; of course, poorly-placed humor can ricochet with terrible collateral damage.

The judge is an authority figure. Some people — even lawyers — get nervous before authority figures. Respect judges, yes, and respect everyone else. However, why fear judges? As Gerry Spence once blogged:

"At [the Trial Lawyers College], [amazing trial consultant and acting teacher Josh] Karton sought to remind the participants that judges are but humans, that they were lawyers as we, and, yes, before then they were once but little children. He called upon an ex-marine, a former sergeant in the Viet Nam war to play the part of judge. He dressed this judge up in a pair of little panties and put a teddy bear in his arms. Then Karton called upon another participant to present his argument to the judge. There was spontaneous laughter from the audience. How silly, the judge, how ridiculous. That we should be intimidated by such a man, was unthinkable. But how was it that a tough Marine, by a few exterior accouterments of the child, was transformed in our vision from the fearsome jurist to the ridiculous child?"

Trials and other courtroom work, then, are taijiquan exercises where a combination of expected and unexpected hurdles come our way. Hurdles are the natural order of things at trial, and are for trial lawyers to minimize as best as possible and then to use to their best advantage.

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