I’ve written before about the lessons for lawyers of Jay-Z and Aristotle and what Atticus Finch really teaches about persuading a jury. I firmly believe that trial lawyers can learn as much from the great communicators — the entertainers, the philosophers, the writers — as they can from other lawyers and advocates. We may be advocates, but our audience is rarely made of advocates.
First, a recap of the basics of trial advocacy. For plaintiff’s lawyers, Rick Friedman and Patrick Malone wrote in Rules of the Road that the three greatest problems that plaintiffs faced in proving liability were complexity, confusion, and ambiguity. Reptile by Don Keenan and David Ball (which I wrote about here) similarly guides plaintiff’s lawyers in personal injury cases to focus on simple issues relating to the danger of the defendant’s conduct, like the likelihood that the harm could occur and the degree of harm that was possible from the negligent or reckless behavior.
One could be forgiven for thinking such advice is particular to plaintiffs, who bear the burden of proof and the burden of persuasion. But the same is often told to criminal defense lawyers, even in the context of their bread and butter at trial, cross-examination. Irving Younger set the gold standard with his Ten Commandments of Cross-Examination:
1. Be brief
2. Use plain words
3. Ask only leading questions
4. Be prepared
6. Don’t get into a quarrel
7. Avoid repetition
8. Disallow witness explanations
9. Limit questioning
10. Save the main point for the summation
The themes are quite obvious. Simplicity. Clarity. Brevity.
And so it came to be that Casey Anthony’s lead defense lawyer, Jose Baez, had scorn heaped upon him. As the “legal analysts” said, he “seems kind of stuck in their train of thought and their plan without showing a lot of flexibility given changes in circumstances,” that he was “running in quicksand,” and that his inconsistent theme of the case — going from arguing that Caylee’s death was an accidental drowning in his opening statement to arguing there was no proof how Caylee died in his closing argument — “flies in the face of common sense.”
Maybe so, but Baez wasn’t there to prove anything. He was just there to cast doubt on the prosecution’s case.
Which brings us to an essay titled, “Philip K. Dick and the Pleasures of Unquotable Prose:”
It’s just that there are spots (sometimes lengthy) of distractingly awkward description, or silly interior monologue, or creaky exposition. As a genre writer who produced over 44 novels and something like 121 short stories, Dick’s prose style seems to disappoint, at least a little bit, his literary-minded devotees, myself included, of course. What are we to do? …
[T]here are moments in Dick’s best novels that seem like unrevised first draft material, but there’s something essential about the inconsistency of Dick’s writing. It is important, I think, that Dick’s novels are not particularly quotable. … So maybe the way to grasp the intricate philosophical craziness of one of Dick’s books is to think maximally, in terms of plot structure and narrative scheme. Forget looking for the pithy quote, which is a sham. Embrace the plot summary, which is real work.
Paradoxically, plot summary can be exactly the opposite of what we usually assume it is: reductive. What’s really reductive is excerpting a writer’s nice sentence on a blog. Thinking in terms of plot summary when praising a novel by Philip K. Dick does something else.
So it can be with a trial. It does not seem that there was any particular moment of Casey Andrews’ defense that was notable, quotable, or technically impressive. Not one moment of it will look good on television.
Maybe Jose Baez simply got lucky; facts win cases, not lawyers. The Casey Anthony case was difficult to prosecute from the start, given the minimal usable forensic evidence and with no direct eyewitness testimony. It’s quite possible that, with merely competent representation, there would be reasonable doubt as to her guilt. That said, the prosecution was greatly aided by two factors: Casey Anthony was a proven liar about relevant issues, even easily verifiable issues like her place of employment, and the concealed death of a child is, on its own, sufficient circumstantial evidence to suggest culpability for murder.
Perhaps we should look at the defense “maximally, in terms of plot structure and narrative scheme,” like a Philip K. Dick novel. Jose Baez and Cheney Mason didn’t have the facts they needed for Irving Younger’s brevity, or to avoid quarrels, or to prevent explanation, or to limit questioning. They had to fight on every front, get every issue out, no matter how ugly the performance, no matter disappointing the prose.
And it worked. Contrary to what a lot of lawyers are saying on blogs and in columns (perhaps most notably, Alan Dershowitz), Casey Anthony’s acquittal is not an example of “the system working.” The system “works” when the guilty are convicted and the innocent are acquitted. Here, a person most people — including the jurors who have spoken with the media — believe is likely guilty of murder is now walking free. That’s not “the system working.”
Instead, what happened here was a preferable error. Our society has generally agreed that it is better for someone like Casey Anthony to go free than for an entirely innocent mother to be wrongly convicted of murdering their child. Thus, by use of the “beyond a reasonable doubt” standard, we set up our criminal prosecution system to prefer false negatives (wrongfully acquitted) to false positives (wrongfully convicted).
I happen to agree with that reasoning, and I’m glad the jury believes it appropriately applied the reasonable doubt standard but let’s not kid ourselves: it’s a failure, just not the worst type of failure.
Jose Baez and Cheney Mason didn’t have any sort of plausible alternative version of events they could present and support with testimony and evidence; their only hope was to create an acceptable error in the system. Sounds almost like the plot of a Philip K. Dick novel.