Norm Pattis has some advice for trial lawyers:
A friend recommended several films as classics about trial, so my wife and watched one of them over the weekend, Otto Preminger’s, Anatomy of a Murder. …
What makes the film worth watching, however, was the manner in which both sides asked patently improper questions designed and intended to anchor themes in the minds of the jurors. Once such a question was asked, the other side predictably objected, and in the course of the objection reframed the issue at hand in the manner intended by the party asking the question. Here’s an example: Question: And when you went out on prowl at night did you wear panties? Objection: The use of the word prowl is improper, and this case isn’t about what the witness did or did not usually do. Court: Sustained.
This exchange told the jury plenty: The victim went out at night for questionable and furtive purposes. When she did so, she was dressed, or, as the case may be, not dressed, for questionable purposes. She’s no longer a demure victim of a sexual assault; she is now a predator herself. The state drew an objection hoping for a response that would tell it’s story. It was a brilliant move in a ham-handed Hollywood sort of way.
In Anatomy of a Murder, the real issue, whether the defendant was legally insane at the time of the shooting, got lost: Was the woman really raped? Of course, the answer to that question hardly mattered given the question presented. The state tried an incompetent case and was tricked into a dead end alley.
Therein lies the lesson for older lawyers. My fear is that as the hairs on my head gray, I have become increasingly conservative. Rather than thinking outside of the box, I reckon where the walls are before trial and then try to stay within them, to demonstrate my legal acumen. But since when is trial about anything other than the narrative at hand? Is time spent in silent struggle with evidence code time that could better have been spent constructing a narrative that persuades, and then finding the means to tell it, including the drawing of objections?
But there’s a catch:
I hesitate to recommend this movie to youngish lawyers — those who have tried fewer that 20 or 25 cases to a verdict. Doing what these lawyers did in a contemporary courtroom could well land you in the poky on a contempt citation. The lawyers give inflammatory speeches during their objections; they shoot sharp and lengthy barbs at one another again and again; the judge’s admonishments are ignored. It’s a great courtroom drama but it is, for all that, fiction. I’d hate to see some young stud defend himself against a judge’s present day wrath by stammering, “But Jimmie Stewart did it.”
I had a similar issue when I first started working for The Beasley Firm. Jim Beasley, Sr., was — still is — a legend. Norm Pattis calls F. Lee Bailey “the most impressive lawyer I ever met;” F. Lee Bailey called Jim Beasley a “titan,” and said that, if he ever had “big trouble,” he’d call Jim Beasley.
And there were no shortage of stories about Jim Beasley in the courtroom. There’s a reason his biography is titled Courtroom Cowboy. When I went to the Academy of Advocacy, every last trial lawyer there had a story about him. Some of them based their lessons on real Jim Beasley stories.
Each time I heard one of these stories, I couldn’t help but think: there’s no way I could do that.
I was sure that, If I tried any of them, the trial would be stopped at that very moment, the judge would lecture me like a child — in front of the jury, no less! — and I’d go down in flames.
Only Jim Beasley could get away with that, I thought.
Maybe that’s partly true.
But it’s not the whole story.
A minor note not included in Norm’s post: “Robert Travers,” author of Anatomy of a Murder, is the nom de plume of a Michigan Supreme Court Justice, who before that was both a prosecutor and a criminal defense lawyer. “Youngish lawyers” should read the book before they watch the movie since the book, written in first-person from the defense lawyer’s perspective, explains how and why the lawyer chose to bend the rules and push the judge’s boundaries.
The key is judgment. There’s no room for so-called courtroom “antics” and a trial lawyer should never break rules. That said, there are times when rules can be bent and, more importantly, there are many situations for which there isn’t really a “rule.”
In those situations, young trial lawyers should of course strive first to adhere to the rules. In the law, discretion is the better part of valor. Second, though, they should always consider what they could have done to be a little more aggressive, a little more zealous.
In time, they can push the boundaries. Jim Beasley didn’t start out dominating the courtroom, either.