Winning by knowing how and when to use words, silence, and all other trial battlefield weapons

Aug 02, 2011 Winning by knowing how and when to use words, silence, and all other trial battlefield weapons

Image from National Institute of Standards & Technology.

Winning in court is not about brute force nor about merely believing that the client deserves victory. It is about constant preparation, devotion, practice, passion, study with others and solo, and belief in the lawyer’s client and cause. Winning requires shoveling sh*t on the way to victory, and not slipping on nor falling in the sh*t. Winning requires being in the Samurai moment. It requires knowing the power of silence and the danger of verbal diarrhea,

With the foregoing always in mind, I recently proceeded to win a motion to suppress the stop of my client’s car in a drunk driving bench trial. The trial started in a familiar format, with the prosecutor’s asking the police officer what drew his attention to my client’s car, and about any unusual actions by him. The police officer testified that my client’s tires touched the yellow divider line several times, and that he made an unsafe lefthand turn, causing beeped horn(s) from oncoming traffic.

Not having been before this particular judge before, I asked the judge for confirmation that my previously-filed suppression motion made it unnecessary for me to preserve my objections to the stop, statements and arrest of my client beyond the suppression motion itself. The judge agreed, and suggested that the prosecutor stop at each stage of suppression for me to cross-examine the officer on that point and to argue each point.

Once the prosecutor finished asking the officer questions about the stop of my client’s car, the judge leaned back in his chair, and started speaking in a way that made me realize that my own silence was in order. The judge pointed out that it made no sense that my client had made an unsafe lefthand turn if the police officer then followed my client into the lefthand turn. Talk about a judge being in the moment, without my needing to say a word. The judge asked the prosecutor where the lawful basis of the stop was.

Here, where the judge had not even yet offered me a chance to cross-examine the police officer, the prospects of a stop suppression looked promising, but of course I was ready to cross-examine and argue.

After the judge and prosecutor went back and forth, the judge asked if I had any comments on the matter. I told the judge that I agreed with him, and underlined that a valid stop needed reasonable articulable suspicion of a traffic law violation. I emphasized that the officer had not articulated reasonable suspicion, having nothing more than a left turn that after all was not unsafe, and touching rather than crossing over the yellow line.

The judge then suppressed the stop, and the case was over.

This trial victory underlined the importance of finding victory however it can be found, even when the lawyer cannot take much or any credit for the victory other than showing up fully prepared. After all, the point of trial victory is the liberty of the client, and not the glory of the trial lawyer.


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