All posts tagged: Advocacy

Man Yelling in Microphone

Yell, Compel, or Soft-Sell: How Blatant Must Cross-Examination Be?

Among Irving Younger’s commandments were the well-known dictates of “be brief” and “save the ultimate point of your cross for summation.” The latter was the model for an eyewitness cross-examination at a recent training on litigating mistaken identification cases, but when we polled the mock jury one of its members – discussing the cross – said “I had no idea what the lawyer was doing or what his purpose was.” It was only one juror, and others ‘got it,’ but the experience gave me pause. The question was, and remains – is it better to make your points and leave the rest for closing; or must we re-examine Younger’s proscription and ‘push’ the point more explicitly? Let me first present the cross as delivered and then the analysis. The cross was designed to make three essential points: that the witness had barely any time to view the perpetrator (and was looking at the gun rather than the robber’s face); that police ‘bad practices’ created the false memory; and that the accused did not fit the …

Clarence Gideon

Gideon’s Heritage Comes to Pennsylvania: Toward A Metric For The Right To Counsel

Everyone should know the story of Clarence Gideon.  Charged with Burglary, he asked for but was denied a lawyer: The Defendant: Your Honor, I said: I request this court to appoint Counsel to represent me in this trial. The Court: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the state of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to represent you in this case. The rest, as they say, is history.  With a self-prepared petition on Florida’s prison paperwork, Gideon brought the Supreme Court to rule that “in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” That was 1963.  This year, for the first time, the Pennsylvania Supreme Court had …

Reading a Story

Learning From Mistakes: Failing to Story Tell in a Defense Opening

A successful opening statement: Draws in the listener from the first sentences Narrates facts into a story-board or framework that the audience – judge or jury – is familiar and comfortable with Tells that story with less attention to finite details and more to ensuring that the gist is grasped Is persuasive without becoming argumentative Strikes an emotionally resonant chord Leaves the listener desirous of and receptive to confirmation as the evidence unfolds The dilemma is for the defense lawyer, he/she who opens second. If the moving party has indeed set the stage with a compelling narration, the defense must quickly move the listener to a new narrative, a story at least as compelling, familiar and morally satisfying. If this does not occur, there is only one framework and one set of expectations. One author has described this as having and setting a “hook,” much as in fishing: An ordinary opening statement relies upon each juror to supply the motivation to actively listen. A hook is a story device that functions in three important ways: …

Microscope

Unreasonable Certainty: A Call To Abandon “Reasonable Degree of Scientific Testimony” Terminology

The prevailing practice in many jurisdictions, usually compelled by custom rather than law, is to ask a testifying expert whether the opinion proffered or the conclusion drawn is held “to a reasonable degree of scientific certainty.” Yet scientists do not proclaim certainty in their domains; instead they acknowledge and embrace scientific knowledge as an area of change and evolution. And any attempt to define the term fails – how certain is “reasonable” certainty, and how is that measured except as a subjective appraisal rather than a uniform measure within a discipline? The origins of the term also confirm its inutility and inappropriateness in most if not all circumstances. The history of this legal term – and its beginnings with medical experts – was traced in Lewin, The Genesis and Evolution of Legal Uncertainty About “Reasonable Medical Certainty,”, 57 Md. L. Rev. 380 (1988). The emergence of this terminology came from early precedent in regard to expert testimony predicting future consequences such as the need for medical care in years to come or the likely harm …

Film Equipment

Learning Lawyering From Film: “Let Him Have It”

Film, Hollywood and otherwise, draws attention to what it means to be a lawyer, both good and bad. Think Atticus Finch, heroically portrayed by Gregory Peck and of such iconic stature that “the American Film Institute deemed Atticus Finch the number one movie hero of all time…” McMillian. A DIALOGUE COMMEMORATING THE FIFTIETH ANNIVERSARY OF TO KILL A MOCKINGBIRD’S PUBLICATION: ATTICUS FINCH-Christian?, 77 Tenn. L. Rev. 739, 748 (Summer, 2010). But filmed versions of trials, real and imagined, also do much more. As described by Professor Thomas Sullivan: Just as film audiences may learn from filmmakers, the writers, directors, actors, and cinematographers are able to create art that informs lawyers and other actors in the legal system about how film viewers may perceive them. Of course, it is equally true that filmmakers may create wholly unreal pictures of the legal system and the work of lawyers that distort, rather than inform film viewers of this process. SYMPOSIUM: IMAGINING THE CRIMINAL LAW: WHEN CLIENT AND LAWYER MEET IN THE MOVIES*, 25 U. Ark. Little Rock L. Rev. …

witness pointing at defendant while judge looks on

In-Court Eyewitness Identifications – What Process is “Due” Process?

In any case where identification is at issue, the proverbial drumroll sounds at the crescendo of the witness examination when the prosecution asks “and do you see the person, here in this courtroom, who committed this crime?” And invariably the finger points at the accused. Who else would it be pointed at? The lawyers are known and obvious, the defendant is often a person of color and/or not in the garb of the courtroom professionals, and the courtroom security people are seated nearby. Although there have been rare instances of witnesses pointing to the court reporter or, in one case, the judge, the easy and recurring choice is the obvious one – as if there were an arrow with neon lights shouting “pick him” pointing at the accused. The science is clear – an identification in a courtroom, months or years after an encounter, is much less reliable and probative than one in the immediate aftermath of a crime, a point brought home by the 2014 report IDENTIFYING THE CULPRIT: ASSESSING EYEWITNESS IDENTIFICATION, a survey …

Incorrect Math Equation

Learning From Mistakes: An Imperfect Cross-Examination

“By seeking and blundering we learn” – Goethe “I have not failed. I’ve just found 10,000 ways that won’t work” – Thomas Edison. “A spelling mistake in the DNA of a gene within the brain seems to impair the ability of a person to improve their performance based on knowledge of earlier errors.” – News Story, The Telegraph, 2007. The first two quotes above are inspirational and reflect insight; the third, sadly, seems to fit many lawyers who never recognize their errors and thus persist in their bad habits, especially in the courtroom. It is probably not genetic, but the recurrence argues for a model where we study error, diagnose and diagram it, and then take corrective steps. That is the rationale for this and forthcoming “learning from mistakes” columns. Although there are no hard data to back up this assertion, it is undeniable that poorly constructed cross-examinations occur on a daily basis in courtrooms across this nation. And they are conducted by lawyers with years of experience who, sadly, don’t recognize mistakes and learn …

Police lights in car mirror

If The Driver Had Been White…

As the nation reels after multiple shootings of civilians by police and the subsequent attack on police officers in Dallas, Texas, the words of Minnesota’s Governor that, “Would this have happened if those passengers would have been white? I don’t think it would have,” bear examination. Was he guessing? Condemning a specific police officer? Or simply suggesting that an implicit bias caused the officers to perceive a threat when none was present? The word “bias” needs explication, in particular as “cognitive bias.” “Cognitive bias” does not connote prejudice, an overt and explicit hatred of an individual or group. Instead, it is a psychological term and means that hidden cognitive processes drive what we see and our interpretations of those observations. That racial bias can affect how information is processed cannot be doubted. Study after study has shown that respondents will judge the same scenario differently depending on the name of the suspect; for example, more people were likely to vote for the death penalty when reviewing a case file if the name of the defendant …

Checklist

Do Lawyers Need Checklists to Reduce Error?

Can checklists reduce lawyer error? As they do for doctors or airline pilots or building engineers? Although the focus on this technique has largely been outside of the realm of the legal system, there is enough known to say that its application to lawyers is both necessary and likely to be beneficial. That lawyers do make errors, and errors of grave consequence, cannot be doubted. While it has been written that “[n]o empirical research exists regarding error rates by lawyers, but it is reasonable to assume they make errors as often as doctors[,]’ McClurg, FIGHT CLUB: DOCTORS VS. LAWYERS – A PEACE PLAN GROUNDED IN SELF-INTEREST, 83 Temp. L. Rev. 309, 349 (2011), there are some estimates if not hard data. The late Justice Scalia, when defending death penalty jurisprudence and practice, famously (or perhaps infamously) quoted a New York Times article that “the error rate [in criminal cases is] .027 percent–or, to put it another way, a success rate of 99.973 percent.” Kansas v. Marsh, 548 U.S. 163, 198 (U.S. 2006). Of course, this …

Reptile

Reptiles in the Courtroom

It is remarkable, as one reads cases, to find a series of published ORDERS in which judges tell lawyers to keep the “reptile” theory out of the courtroom. THIS MATTER having come before the Court on Defendant Ruta Obergfell, M.D.’s Motion in Limine #1 to Preclude Impermissible Use of the Reptile Theory, and the Court being fully advised in the premises, IT IS HEREBY ORDERED that Defendant’s Motion is GRANTED. The Plaintiffs and their counsel are hereby barred from arguing or soliciting testimony based on the REPTILE theory including, but not limited to, making arguments or soliciting evidence concerning “community safety or protection,” “public safety or protection,” “safety rules,” “sending a message, “needlessly endangering patients,” or “being guardians of the community.” Hopper v. Ruta, 2013 Colo. Dist. LEXIS 249, *1 (Colo. Dist. Ct. 2013). See also, Pracht v. Saga Freight Logistics, LLC, 2015 U.S. Dist. LEXIS 149775, *4 (W.D.N.C. Oct. 30, 2015)(“ Defendants’ motion to prohibit any Golden Rule argument and/or Reptile Theory questions and argument is GRANTED.”). A less successful attempt occurred more recently, …