Nov 10, 2013 Owning the conversation is a key step towards winning
Awhile back, a prosecutor interrupted my argument — as many prosecutors have a penchant to do — near the very beginning of the hearing that I had scheduled on my own motion. I let my irritation get the better of me — with irritation and anger (whether the anger be at prosecutors, cops, judges or anyone else) being counter to being as powerfully soft as tidalwaves, hurricanes, and tornadoes, as taught by my taijuquan teachers — by saying "I do not appreciate being unfairly interrupted" [when the prosecutor will have his turn to speak]. The judge cut me off at "interrupted" and said he did not appreciate my response to the prosecutor’s interruption. Perhaps the judge felt my response was a challenge to his desire to be seen as in control of his crowded courtroom. Perhaps the judge wanted to limit me to saying "I object" versus "I do not appreciate." Perhaps the judge just wanted to shorten things, because he then ruled partially in my favor.
Letting prosecutors interrupt a criminal defense lawyer’s critical argument can be very harmful to the defense, by the prosecutor’s putting his or her own spin on the defense’s argument, by the judge’s possibly getting impatient to then hear the criminal defense lawyer’s own spin, and by the judge’s perhaps getting distracted by the prosecutor’s spin. With primacy and recency, the first to spin has an advantage in owning the argument. To let the prosecutor take over the defense lawyer’s spin can be akin to turning one’s back on a knife-wielding opponent; never turn your back on that.
Recently, I applied a better approach to a prosecutor who interrupted me from the get go when I started my oral argument on my detailed trial rescheduling motion. I smiled at the judge, and said "I am sorry for interrupting the prosecutor’s interruption of my own argument. However, I am concerned that the prosecutor may be about to mis-state my own position on this matter." The prosecutor tried to keep talking, but the judge said that he could see that I had something I wanted to "spit" out, and the judge was going to let me do so.
So I spit out my argument, and got what I wanted out of my motion. Praised be Texas criminal defense lawyer Ed Mallett for cuing me early on in my criminal defense career to consider apologizing when interrupting, to overcome appearing rude. Our teeth, bows and arrows can be just sharper when arguing in an agreeable tone of voice that people will listen to, than in a shrill angry tone that people shut out. Certainly, a rescheduling motion is among the more minor motions that I file, but this is my most recent example of taking back the argument to my side. Moreover, won’t this particular prosecutor think twice before interrupting future motions that I argue, and maybe even any opposing lawyer’s motions arguments?
An advocate’s words are also listened to more closely when the advocate speaks with honesty and authority and in an interesting tone. San Antonio criminal defense lawyer Gerry Goldstein taught me early on that we can make our written motions come alive with interesting and sometimes humorous turns of phrase to keep our audience listening and to send our message home. I spent several minutes searching online for one of Gerry’s gem motions, but am thus far empty handed, where many of his filings pre-date when federal court filings were filed online.
Now to Tennessee lawyer Drew Justice, who recently cut down a prosecutor to size, and then some, by lampooning her unjust, whining opposition to allowing him to refer to her as the Government before the jury. Read her blather here and Drew’s justified slingshot here. Good for you, Drew. In the process, Drew has catapulted himself to being praised and remembered around the Internet universe. May this be a lesson to prosecutors that any unjust efforts by them to squelch a criminal defendant’s vigorous defense may well be exposed to the public and cut down to size in the tiniest bits.
I started out my criminal defense career 22 years ago often feeling dread over all the injustice committed in the courthouses. However, with the foregoing lessons from my taijiquan teachers, I know that I am the most powerful for my clients and myself when I focus on doing justice and reversing injustice rather than merely kvetching on the injustices that abound.