Aug 03, 2011 When the opponent gets angry or sarcastic, know the weakness that comes with it. (And a story of a courtroom SBD.)
The life of trial lawyering inevitably faces the trial lawyer with seemingly numerous unpleasant and downright distressing people and situations. They run from yelling and seemingly underhandedly scheming lawyers, to lying and nasty opposing witnesses, to numerous judges who seem to be prosecutors in robes or docket chasers rather than justice minders.
The creativity of opposing lawyers in trying to annoy and derail can seem limitless. A fellow trial lawyer once related that during a trial, his opposing counsel walked over to his table to let him see an exhibit. As the opposing lawyer stood there, the opponent emitted an SBD (silent but deadly flatus, for the small minority of readers who have not suffered such indignities), perhaps of the kind that has a delayed stink emission. I doubt it was an accidental emission, seeing that the gas-receiving lawyer would have discovered that by now, his having eventually become law partners with the SBD offender.
In the past, I have sometimes been very firm with prosecutors who have gone off on me (it has happened infrequently) that I will not tolerate them doing that in front of my clients, such behavior being an end-run violation against the lawyers’ professional conduct rule prohibiting lawyers from communicating with a represented opposing party about the case, unless the party’s lawyer consents otherwise.
Then again, when my opponent gets angry, I know the opponent is weakened. I do not intentionally try to draw my opponent’s anger, although one colleague tells me that with one particular former prosecutor, he would frequently intentionally get the prosecutor’s goat, believing that he benefitted from that. Psychological warfare, of course, can damage the perpetrator’s reputation. I have no idea why the SBD victim became law partners with his SBD assailant. Bill Bradley lost respect points with me when I learned that he would pull on his college basketball opponents’ leg hair (apparently having found no rule against it) and laughing after drawing the anger. Bradley does not seem to regret such behavior, seeing that he has left on his website a 1999 Washington Post article about such nonsense. One type of psychological warfare that makes me laugh more than smart are wrestlers who never wash their shirts, although perhaps that is not much different than emitting an SBD.
Power can corrupt and blind, and line prosecutors have tremendous power. Many prosecutors know how to harness and control that power, but many others abuse it. Too many prosecutors become arrogant about their power, and get angry or flustered when anybody challenges their high horse.
Non-anger is an essential component of success in court, in all battlefields and playing fields, and in life. Today, when a prosecutor gets nasty with me, I am reminded of the scene from Jaws where the shark catcher slices open a shark’s belly, and the shark hungrily eats its own guts. When a prosecutor gets angry, s/he has already sliced open his or her own belly, and I wait for the prosecutor to start eating his or her own guts.
One day a prosecutor got angry at me with the following results. I arrived at court for a drug possession bench trial. The chemist told me he was not comfortable talking with me unless the prosecutor was present. I cheerfully brought over the prosecutor, and the chemist began satisfying my request for me to see his notes and documents on his test of the drugs allegedly seized from my client, turning page-by-page. The prosecutor asked the chemist what his second document was, and with his description the prosecutor told the chemist he did not need to show me that document. I interjected: “I think you will want to retract that comment,” and explained how the prosecutor’s advice ran counter to his professional obligation not to cause such an interference. The prosecutor got his dander up that I would dare to make such an insinuation, but withdrew his advice to the chemist, who then showed me the document, which turned out to have been inconsequential.
My unintentional; sleight of hand had been played, with the prosecutor’s smarting over my comment, and with the prosecutor’s perhaps focused on the chemistry of the case whereas the most critical battle should have been over my coming effort to suppress the traffic stop that led to the discovery of the drugs on my client.
Thirty minutes later our case was called for our bench trial. the prosecutor asked questions to elicit the officer’s reason for stopping my client’s car, which was that my client’s car was going at a high rate of speed compared to the highway speed limit. Mind you, judges repeatedly — and unjustifiably too often — refuse to suppress car stops when the prosecutor does not present admissible and reliable testimony about the officer’s checking speed by pacing, laser, or radar, so long as the officer uses the words “high rate of speed”. Sure enough, this judge overruled my objection to testimony about a high rate of speed to justify the stop, after I pointed out as part of my objection that we had not yet heard testimony about pacing, laser or radar.
I underline: The judge OVERRULED my objection to the stop. The prosecutor was on his way to a victory so long as the judge believed — as stated in the police report — that when asked whether he had any drugs on him, my client said something along the lines of: “Yes, right here in my pocket.” (So much for my years-long urging on my website for silence when one is an actual or potential police suspect). However, the prosecutor never got that far. Perhaps being blinded by wanting to show me how wrong I was about the basis for my objection, the prosecutor proceeded to revisit the traffic stop that the judge had already allowed.
The judge kept sustaining my objections to testimony of the police officer about the calibration of his speedometer, which he used to pace my client’s car to check his speed. The officer’s cruiser had just come over from Detroit, and the police had never verified the speedometer’s calibration in advance. The judge refused to hear about post-arrest calibration, correctly finding such testimony irrelevant.
Then the state rested. YOW! As calmly as I could say, I moved for a judgment of acquittal. GRANTED.