IOWA CHAMPION

I don't want to understand the emotions of a lying liar that lies

Mark Bennett is posting about the "empathetic lawyer" again.

"an empathetic lawyer has empathy for everyone. A compassionate lawyer has compassion for all"

What I want to know is this: How do you have compassion for an accuser who lies about your client sexually assaulting them? How do you empathize with the cop that invents the probable cause for his traffic stop out of thin air? The answer is…YOU DON’T!! The only thing you should feel for that person is contempt for trying to pervert justice.

Mark goes on to talk about who he would want to represent him if he were ever charged in a case he posits:

"I suspect that if I were accused of a crime I would (all else being equal) not want a lawyer who was defending people to turn a buck...I would want the lawyer who could best discover and tell the story that would clear my name, and I would want her to be relentless in the pursuit of my freedom. I suspect that this would be a lawyer who cared about me. "

That is fine for Mark, but what do you mean by "all else being equal"? I don't want all else to be equal. I want to know, first and foremost, who is most capable and skilled attorney to defend me in my unique situation. If there is a need to challenge a search warrant, I would want the attorney to have an encyclopedic grasp of the law.  If there was a liar making an accusation against me, I don't want someone who is going to identify with them, I want someone who is going to eviscerate their story. If the case against me is impervious to attack, I want the attorney that has credibility with judge when it comes time for sentencing. A good defense attorney has the versatility to wear all those hats.

That is what I was trying to convey when I talked about practicing with integrity instead of empathy. If you do everything with consistent personal standards, you will serve your client best. Judges will trust you. Juries will see you as an honest advocate for your client. You don't have to beat people up on the witness stand unless they deserve it...and sometimes they deserve it.

When I hear Mark talk about this I can't help but get a one-dimensional view of how the "empathetic lawyer" practices. The first and foremost concern seems to be identifying with emotional motivation of the opposition. The truth is, emotions HAVE to be controlled in criminal defense cases. They can't always be on the forefront of your approach to a case. A defense attorney needs to be able to adapt and be versatile. If your first concern is always an empathetic inventory, you are not being flexible and your client will suffer.

There is a time and a place for emotion, but there are also times when you turn your plowshares into swords; there are cases where you HAVE TO go to war.  When you do, do want an "empathetic" champion, or a "ruthless" one?

After making my first draft of this post I read Scott Greenfield's take at Simple Justice. I think he hits the nail squarely in the head when he says:

But why must clients settle for the one dimensional lawyer?  Why can't the lawyer be empathetic toward his clients, yet aggressive in his representation?  Why can't the lawyer have a bullet in each chamber of his six-shooter to cover the full panoply of situations, ready to be cooperative when appropriate, ruthless when necessary and everything in between in response to the needs of the case and situation?

Truer words were never spoken.

Secrets from the 13th juror

The Chicago Tribune published an excerpt from a new trial advocacy book titled "Your Witness: Lessons on Cross-Examination and Life from Great Chicago Trial Lawyers."

The excerpt was written by R. Eugene Pincham, a civil rights attorney turned judge, who recently passed away.  Pincham writes about a common problem that lawyers face in trials...they talk like lawyers and the way they present information to the jurors often alienates them.  The solution is to become "the 13th juror". Essentially, forget what law school, the bar exam, and other experiences you've had as an attorney; they have warped your brain. You have to speak to jurors in easily understandable language, don't assume they know what you know about the case, speak loudly and clearly, and be respectful to the witness and opposing counsel.  Every time you open your mouth, your credibility is at stake. It is sage advice that can sometimes be forgot in the pitch of battle.

The new book looks really well written and will probably end up in my office before long.  I am a fan of trial advocacy books that are written in the style of a person giving "advice" to another attorney.  The best books out there are by James McElhaney: Trial Notebook and Litigation are must reads for every trial attorney. They are page-turners because McElhaney's style is humorous and mostly written as anecdotal advice from one attorney to another.

Do it yourself criminal defense kit, only $199.99 plus filing fees...

The front page headline in today's Des Moines Register was about the increasing trend of self representation in courts in Iowa and across the country.  As the article pointed out the practice is becoming increasingly common in certain types of cases, mostly divorce and family law.  The article's author, Grant Schulte, stated that the practice is not gaining much momentum in criminal cases because of "free lawyers" through court appointments. That comment shows Mr. Schulte needs to do a little more research, but it is not the main reason for my post today.

The article was especially thought provoking for me, as I was appointed (on very short notice) as the standby counsel in one of the criminal cases mentioned in the article: State v. Forrester.  Although I obviously can't discuss any of the confidential matters I did in that role, the trial itself and the fact of my appointment are matters of public record.  As the article pointed out, Mr. Forrester's case turned out very favorably for him.  Facing a Kidnapping 2nd Degree charge (a 17.5 year mandatory minimum prison sentence) he came out with two misdemeanor convictions.  The other defendant mentioned in the article didn't do quite so well.

The process of acting as standby counsel was new for me.  I had prosecuted a pro se defendant with standby counsel back when I worked at the Polk County Attorney's Office.  It didn't have much of an effect on my trial strategy or frankly the outcome; the case was a dog and the pro se defendant got a not guilty verdict.  But, being on the defense side of things this time around was one of the best experiences that I've had as a lawyer.  It reminded me of my work with Jeff Noble (Assistant Polk County Attorney) as one of Drake Law School's ATLA mock trial coaches.  In teaching the process to another person, I reaffirmed my own knowledge and skills. It was also invaluable to be able to watch a trial from jury selection to closing without being so caught up in actually trying the case that I missed the dynamics of the trial; something I hadn't done since I was a law student.

After the verdict was in I had a chance to talk to some of the jurors.  Those conversations really got me thinking about how lawyers think about cases as opposed to what jurors think. I shuddered for a moment when I thought what the outcome could have been if I had been the attorney from the start and tried the case myself.  I consider myself a capable trial attorney. My trial attorney ego got very defensive at my thoughts after talking to the jurors: Would I have made the same arguments to the jury that the pro se defendant had?  Would I have focused too much on the technical elements of the offenses?  Would I have been able to get as good of an outcome as the defendant did for himself?

Thankfully for my ego we won't ever know the answer to those questions.  I just know that the case opened my eyes back up to the idea that you never want to assume anything about the way a jury will think. Every jury starts with a blank slate and as a defense attorney you have the opportunity to teach them why your client should win. Show them why the evidence is on your side and never underestimate the basic concepts...whose story is more believable; who couldn't keep their facts straight; are there gaps in the evidence presented by the State.  If you focus too much on the differences between specific intent and general intent the jury will probably think you sound like a slick lawyer trying to get his client off on a technicality.  They may even think you're one of them "free" lawyers they read about in the newspaper.