Trial lawyers aren’t in their office during the day. They’re on their feet in a courtroom, a jury in the box and a witness on the stand. Very few lawyers try cases before a jury. Most lawyers couldn’t find the courthouse with a day’s head start, GPS and a couple boy scouts leading the way. So… how do you tell a trial lawyer?
Not by his clothes. One of best I ever saw represented working stiffs when they were badly hurt in an accident. Izzy wore shirts with frayed collars and cuffs, tomato sauce stained ties bought 3 for a dollar and pants that ended at mid-ankle with mismatched socks. It was all topped off with a large checked, many colored sport coat.
Not by his smooth talking. Izzy spoke to judges, defense attorneys and juries alike in a slang laced plain talking style filled with dem, dese and doses. When someone used a legal phrase, a flowery quote or even words of more than two syllables he was quick to say, “what, what dat mean or talk English.” Defense attorneys, read that as lawyers for the insurance company, with their polished language, tailored suits and country club manner could never accept that this guy could possibly beat them at trial.
Izzy’s clients, or their husbands, dressed and spoke kind of like he did. So did many of the jurors he picked. And they didn’t mind that he reeked of whiskey after lunch. Izzy didn’t lose many cases in his home county. And he tried a lot of them.
So… what do you do if you can’t tell a trial lawyer by his clothes, his talk or the scent of his breath? Go see him in action – trying a case. Remember that even lawyers at the courthouse don’t do much more than poke their heads into a courtroom and scurry out as soon as possible. Some look splendid at a routine appearance or arguing points of law on a pre-trial motion. Very, very few actually try cases in front of a jury. It’s a lot easier to shuffle papers, plea bargain or reach a settlement.
It’s also a lot easier to be a Monday morning quarterback. Trial lawyers have to make decisions based upon the case they have. Then they make more decisions, on their feet with a moment’s notice, based upon the way a witness comes across or the evidence comes in. Here’s an example:
“You’re scum, an admitted two time loser, aren’t you?” the lawyer sneered.
The lawyer pointed at the witness, “you’re worse than scum - you’re a snitch, aren’t you?”
The lawyer looked disgusted, shook his fist at the witness and shouted “You’re a dirty snitch, a lying rat. Do you really expect this jury will believe anything you say?”
This line of cross examination went on – for 2 entire days - with little change except for the poor slob on the stand looking sadder and sadder. Throughout it all the defendant nodded and grinned; he loved the way his mouthpiece stood up for him and lambasted the snitch.
I believed the snitch. Scum or not, and two time loser that he was. The jury believed him too. It took less than 30 minutes for them to come back with a verdict of guilty on all counts.
Some would say the lawyer stunk. I thought so too; he never gave one solid reason to believe his client wasn’t guilty as sin. Except for the undisputed fact that the main witness was indeed a snitch.
However; there is a broader perspective of the lawyer’s ability. His client never spent a night in jail – even after being found guilty. That’s a pot of gold for a criminal defense attorney... and the defendant. One reason is that the lawyer raised a fuss before the judge– made a good record – about evidential issues. He insisted some proofs should have been kept out of the State’s case, and maintained that the judge erred by preventing the defense from introducing various matters.
The case became mired in an up and down appellate process. Questions concerning inadequate disclosure by the prosecution, lost proofs and “newly” discovered evidence by the defense also became part of the defendant’s appeal. The client remained on the street; he eventually plead guilty to reduced charges and was put on probation. The lawyer may have had a plan.
A trial lawyer needs to be prepared and know what he’s doing to have any chance at success. A witness is useless unless you can find him, get him on the stand and have him testify credibly. That piece of paper in a file doesn’t do a damn bit of good unless you can wave it in front of the jury. There are rules of evidence that govern such things, and sometimes more important – the rationale behind the rules. A trial lawyer wants his proofs to go in plausibly and believably, and the other side wants to keep it out or make it look bad. It’s not as easy as it seems on TV.
So how do you tell a trial lawyer? He presents and argues cases before a jury. Go to the courthouse and watch him. Do you believe his version of the case? Did the jury?
DJO©11/7/10
*** Caveat for the cautious, curious or cynical reader: the author makes no claim as to having been big time, or even a very good lawyer. He did, however, try 18 cases to a jury verdict [getting his ass soundly kicked back and forth across the courtroom in the first 6, to both his and the clients’ chagrin] and favorably resolved dozens more at some point during a jury trial. ***
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