It might be a million dollar case

          What is a person’s job worth, especially in this economy?   When Walter was arrested for Driving While Intoxicated (DWI), he knew he was in jeopardy of losing his job as a salesman even though he was the top salesman in the company.  This arrest was not only about Walter and his job, it was about his ability to support his wife and their (3) children.   There was no doubt that a conviction for this type of offense would mean termination of his employment and a major detour in this family’s life path. 

           Walter trusted the breath test and the officer to get it right, but he and the jury found out that the officer and the machine were on a different team and it wasn’t a team for Justice.   Walter’s breath specimen produced an alcohol concentration result of .149 on the Intoxilyzer 5000 about an hour and twenty minutes after the officer stopped him.  (A .08 or higher is considered intoxicated)  Walter admitted to (7) drinks and that “maybe he had two too many”.  His field sobriety tests weren’t too bad, but he hopped a bit to retain his balance and wasn’t able to stand in place with one foot in front of the other.  The bottom line is that Walter’s actions on the video could be explained and they were not the result of being intoxicated.

            We always want to know how another lawyer won a big case.  We get questions like, “How did you overcome the presumption of intoxication?” or “Who was your expert?” and others.   I can share some of how we won this one, but there isn’t any one reason.  Many lawyers don’t understand what it takes to win.  We go into the courtroom with the culmination of life experiences that we use.   It is caring about our clients, and being genuine that make the difference, not how much law or science we know.  I think trials are like football games.  While they aren’t games at all to most of us, every inch can be the difference.  Momentum is also very important.  We’ve got to grab it and keep it as much as we can until the trial is over.  We begin with ourselves in jury selection.      

Jury Selection

             As I sat there while the prosecutor was attempting to conform the jury to his way of thinking, I was, as usual, trying to blow it off and act like I didn’t care what he said.  Reality is that I was a little bothered by all the tactics the prosecutor used to try to win.   Sometimes, I have a difficult time coming up with words to describe my feelings.  I have to be able to slow down and find the feeling because I know I’m prone to skip right over the feelings and the reasons for them and run to anger.  So, I asked the jurors, “What is going on with me right now?”  They knew it.   Ms. White said, “It’s written all over your face”.   I responded, “You must have been talking to my wife because that is what she says”.   “What do you see on my face?”  “You look irritated”.   “Yes. Anyone else?”   The word, “Frustrated”, comes out.  “Yes, I get frustrated”.  “Why am I irritated and frustrated?”   If they don’t answer, I give them some examples to assist them a little.  “It bothers me when I constantly hear the words, “this defendant” or “the defendant” from the prosecutor”.  “This man has a name and it is Walter….”  “Phrases like “Police officers let people go all the time that aren’t intoxicated”, and “we aren’t talking about drunk; we are talking about intoxicated”.  These comments make me feel helpless to help Walter because I want to win for him.    

            The biggest issue in this case was the breath test result, but there are several sub-issues that are also important.  I have a list and try to cover them during the Voir Dire process and trial.  i.e.  Not performing perfectly on the field sobriety tests.   I used something I stole from a lawyer, named Stuart Kinard.  Years ago, I would use a thick poster board with the words, “If the government bought it…” with the answer hidden behind some butcher paper taped below it.  After the jurors would come up with answers like, “it cost too much” to finish the sentence, I would rip the butcher paper away to reveal the answer- “It must be O.K.”.  Well, I admit that I used it again, but with power point this time.   But, I did tell them the story about the butcher paper so it didn’t come off as being too slick, corny or tricky.   All I wanted them to know is that Walter is not guilty even if there is a breath test result above the legal limit.                                                              

Opening Statement 

            I knew Walter’s story and I told them everything and more.   “This is a case about being exhausted, not intoxicated”.  “It is about the war on drinking and driving and the innocent casualties that always come with war”.    

Cross Examination

            I was just having fun with it.  Sometimes we get too serious and can’t be ourselves or we think that we can’t say certain things in the supposed solemn courtroom.   Thanks to psychodrama and other personal work, I’m beginning to know myself and not afraid to be human.  The cross was simply telling our story with the state’s witnesses.  

            We know what we need to win the case and we know what the state’s witness wants the jury to believe.  I can’t control the state’s technical supervisor or the police officer.  The sooner we learn that we can’t control anyone else, the better we will be.  I know they want to win and that they believe that the breath machine and their opinions are absolutely correct.  The state’s technical supervisor is a strong, good looking female.   I know I’m not going to beat her with her science, but I have to constantly remind myself not to fight and argue with her answers.   The first question/statement to her is something like, “You’re pretty good at this”  and “I’m certainly not going to fight with you”  I hope I didn’t, but I think I might have said, “You’re better looking than me or not bad looking either”.  Sometimes, she would go into a long narrative about how great the machine is.  Instead of objecting and looking like she was hurting us, I might acknowledge her narrative with a question.  “It’s hard to answer questions with a simple yes or no, isn’t it?”   “By the way, did you know we can go to eBay and buy one of those intoxilyzers for about $250.00?”   “If I buy one, can I hire you to come set it up and get it going so I can use it at my party?”   Just be yourself and have fun with it.        

            Walter’s story came out and the jury knew that it would take a lot of alcohol for a person to really have a .149 alcohol concentration.   At a minimum, the jurors had doubts about the accuracy of the machine and they didn’t want to hurt him.    

Closing

            We’ve learned that we can’t win it in closing and I believe it.  We started winning this case at the beginning when the jurors were telling me how I was feeling and why.  At the same time, we never really know what the jurors are thinking and we certainly don’t want to lose it in closing. 

            I always like to repeat our “power statement” or theme as much as possible without wearing it out.   I just talked to them about what I’ve been thinking about lately.  “It seems that our world has become so competitive.  We’ve got all these teams that want to win.  We’ve got the Republicans vs. the Democrats; neither wanting to agree or say anything positive about the other for fear that they might lose some edge.  We’ve got the police team, the prosecutor team, and we’ve got our team.  This isn’t a game to us.  It isn’t about winning or losing, it is about Walter’s life.  Why can’t John (the prosecutor) say the name, Walter, especially when he knows his duty “is not to convict, but to see that justice is done”?  They’ve got their white board in their office that lists all the cases going to trial that will display the results for everyone in the office to see.  What they need is a column entitled, “Justice was done” with a place for yes or no.”       

 Conclusion   

            Sometimes we become numb to consequences of convictions or marks on our clients.  We are sometimes sucked into the money man’s propaganda.  We don’t think about what it is really like to spend (5) years in prison or be under a probation officer’s thumb for even a year.  What would it feel like to be required to give a urine specimen while someone is watching it fall from your urethra to a cup?   How does it feel to be under that thumb?  We might not allow ourselves to think about our client’s struggle to keep or get a job and support their family.  Think about your law license and what you might do if it is taken away.  We are the only ones who have the ability to fight, teach, and educate the people about what is going on.  If we can’t see what is happening, we will not be able to get the people to see.  Is it really all about the money for you?

Overcoming Tough Issues in Trial, Our Story

Our Story-One Size Doesn’t Fit All

The story has already been told in jury selection and opening statement. And really, the jurors already know what they will do or at least know what they want to do. Now, I just need to tell it again in cross examination and in direct with Carolynn. This was a case about a young girl who was drinking and driving in the middle of a war, a case about a girl who trusted a machine to tell the truth. Tim Evans told us at Rusty Duncan and few years ago about how practicing law has changed over the years. Apparently, lawyers didn’t have to deal with all the wars years ago. This war on drinking and driving is unfair to the people because in war innocent civilians are sometimes injured or killed. To win consistently, we need themes, theories, power statements, and our story. One size doesn’t fit all though.

Carolynn’s story didn’t just come to me on the morning of trial. You’ve heard them say, “C’mon, it is just a DWI case”. No, Carolynn’s story and her case, like a fingerprint, is different than any other DWI you’ve seen. While there can be similarities, Carolynn’s story includes her life experiences, up to the time she walked in my office. It includes what she has been through and what she is going through in her life. We’ve got to spend many hours outside the courtroom to get to know our clients and their stories and the issues that concern us about their case. The concerning issues are key in jury selection. I begin making my list when I meet clients for the first time.

If someone can tell you what happened, they can also show you. By using psychodrama techniques, Carolynn can show us scenes from her life and from the day of her arrest. Through this process, we get to know and care about our clients. We are able to find the “bad guy” that Dan Hurley has told us about. Remember, it doesn’t have to be a particular person; it can be society, the government, or anything. We learn how the propaganda war may have affected Carolynn. She felt guilty about drinking and driving and being arrested. We see what really happened after the video was turned off. We see that she is telling the truth about the Trooper not being in her presence for 15 minutes prior to the test. Also, her memory of the events in the jail, are relevant to her mental and physical faculties. We are able to see the inside of the jail. We see the colors, we hear the sounds, and we can smell it. “We” is everyone in the courtroom. If we don’t care about our clients, why would a jury? If we don’t know our client’s story, how can we tell it?

The worst thing we can do in a trial is to bore the jury. From time to time, I entertain the possibility of becoming a judge one day. I quickly change my mind after thinking about being trapped up there on the thrown every day. Usually we don’t realize it or care about being boring because we are too busy asking our next great question. I understand that none of us will ever be David Guinn funny, but that is alright because we have to be ourselves to be genuine. We can only dream about the possibility. I’ve learned over the years, and still have to constantly remind myself, not to fight with the witnesses. Again, I have to resist the urge to lose control of myself. I make my points and move on. Since I knew the issues in this case, I didn’t waste time arguing about the angle of the stimulus and the speed in which it passed and other irrelevant matters. I tell my story in cross knowing that the witness’s answer will often be disagreeable. Sit in the Trooper’s shoes and feel what it is like to be in his position. What is behind the standard testimony that comes out so freely on direct examination by the prosecutor? What is true about him that he doesn’t want to admit or say?

I didn’t want to fight with the technical supervisor or show him how smart I was either. When we fight with the state’s experts, we will lose with the jury even if we win a point or two in the process. I simply got what I needed that was relevant to win this case and got out.

Closing and Conclusion

If the case isn’t won by closing argument, it’s probably too late, but I believe it certainly can be lost there. It is again time to give the control to the jury. We give them the power and reason to help our clients. It isn’t really about Carolynn anyway, it is about the jury. How can their decision help Carolynn and them at the same time? Maybe they don’t want the “bad guy” to get them or their family. Maybe they don’t like betrayal. After a few days in trial, the jury found Carolynn Not Guilty of DWI despite strong breath test evidence. Several of the jurors wanted to hug her. Why? You could call it love, but they cared about her.

The jury changed when I gave up my control and shared a part of me. By being genuine and acknowledging them and their beliefs, we became a group for justice.

Overcoming Tough Issues in Trial- Jury Selection

The issues in our story, jury selection

I’ve never had a jury panel as unfavorable as this one seemed to be.  Carolynn and I are sitting at a table alone, while the prosecutor is doing his best to minimize his burden and instill fear in the minds of the potential jurors.  We hear the jurors talk about relatives injured or killed by intoxicated drivers.   One of the jurors begins to cry as she tells us about her husband being killed by a drunk.  Before I stand up, all kinds of thoughts and feelings are racing through my head.  “What am I going to do with this?”  “I should have found a way to put this trial off for another day”.  “I was ready at the last setting, why couldn’t I have tried the case then”.  “I’m blaming myself, because I shouldn’t have asked the judge for a continuance in July so I could go to Wyoming”.   “We don’t have a chance to win this now”.  “If the case in front of us wouldn’t have pled, we wouldn’t be here now”.  “Why does Carolynn have to be the unlucky person to get this jury?”   Remember, my typical response to feeling helpless and how anxiety can get in my way?  Since I can’t run or come back another day, I stand up and walk around the table and face them.  After all, if it goes bad, I can always blame the jury later.

If I had not taken the time to look at myself and work on my issues, I would probably have become overly nervous, anxious, and would have allowed the feeling of helplessness take its control.  I probably would have resorted to some of the useless, harmful phrases and questions that came so easily over the years.  “As Carolynn sits here, she is presumed innocent”.  “She doesn’t have to produce any evidence at all”.  “Mr. Jones, if we stop now and you hear nothing else during this trial, what does your verdict have to be?”  It is embarrassing as I type and think about using those words of the past.  I probably would have argued with the jurors who disagreed with me while trying to control their responses for fear that any more bad answers would surely kill my efforts to help Carolynn.  I would have become tied the seemingly important legal questions I wanted to ask.  Their answers would mean nothing really since I had to move on to my next great question and I would not have heard them.  How are we doing?  Are we making progress with this panel?  When we conduct this type of “Voir Dire”, we may feel pretty cool, smart, or slick, but the momentum isn’t moving to our side.  How does the juror feel when we ask him the clever or trick question?  How do the jurors feel when we attempt to control them?  How do the other potential jurors feel as they watch this take place?  How do we feel, when we are in their seats?  Carolynn would be better off if we spent the 30 minutes talking about a recent football game.

Instead, I face the panel.  Internally, I ask myself, “What is really going on with me as I stand up?  What am I feeling? What is the jury feeling?”  I acknowledge what I’m feeling in that moment i.e. feeling of anxiety and/or the helpless feeling and realize my potential to lose control of myself, the part of me, that I’ve struggled with in the past.  I’m still not warmed up to this task and the jury isn’t warmed up much either, certainly not to me.  I look around at the panel a moment and ask them if anyone has an idea about what’s going on with me right now?  Does anyone have an idea of how I’m feeling now?  There is a little bit of silence, but they are working on it.  Sometimes, we don’t like silence, and feel like we have to talk, and of course then, we usually ruin it.  One juror near the middle of the panel speaks up, says something like, “you’ve got a problem”.   I might say, “Tell me what you mean?” or “Yes, with all this about drunk drivers, it isn’t looking very good for Carolynn is it?” or maybe, “I heard that too, but we’ve got these rights- presumption of innocence, right to remain silent, state’s burden to prove their case beyond a reasonable doubt.  We’ve got nothing to worry about, right?” (Semi facetiously)  Basically, I listen to this juror and acknowledge him in some way.  We use our judgment to decide how we want to acknowledge their answers.  It might be as simple as “Yes”, a nod, or “I imagine you were frustrated”

Although it has been a part of my training for the last twelve (12) years, I didn’t realize that I was using what Carl Rogers believes is key to creating a climate that benefits us.  When we are genuine, or real, our body language will be congruent with our words.  Instead of arguing with the jurors, we accept them where they are.  Finally, we listen to their answers and sincerely acknowledge them rather than hurrying to our next great question.

Well, we’ve used our time wisely and discussed the issues important in Carolynn’s story and managed to gain a little momentum, but we’ve got a long way to go.  The state will give their brief opening statement and call their witnesses that will surely say that Carolynn is guilty beyond a reasonable doubt.

Overcoming Tough Issues in Trial, a Series

Where should the lawyer begin?

People are asking questions like, “How did you overcome a .14 breath test?” I want to give them an answer, but I can’t do it quickly because it involves a combination of my life experiences. Many of which involve many other lawyers and friends along the journey or what Greg Westfall refers to as the “Process of Life”.

Why do I write this for anyone to read? Why spend the time to get this right? I feel a need to share what others have given me. With it, comes my need to fight the knaves that surely will come. I thank my friend, David Guinn, for sharing the poem “IF” by Rudyard Kipling. I especially relate to the part about “If you can bear to hear the truth you’ve spoken, Twisted by knaves to make a trap for fools”. Sometimes, the truth will strike a chord in us that will cause a reaction. It could be that any reaction is better than none. We can all learn from each other in this world, but we have to be open. Open to the possibility that there is more to this life than just going through the motions and merely existing until we die. Similarly, there can be, and should be, more to a trial than just going through the motions. I’ve learned from so many lawyers over the years and, at 50 years old, I still know there is much more to learn and that I don’t know it all. We, as lawyers, have the opportunity to make change in this world even if it is only one jury at a time. We have the ability to change clients, judges, prosecutors, jurors, and ourselves.

It is a little embarrassing to admit that this case was only my second trial with a breath test result above .14 in twelve (12) years. Well, admittedly, I’m not one of the self-proclaimed DWI Kings, or Dudes. Yes, I struggle with sarcasm, but truth is also important to me. Lawyers like Gary Trichter and Troy McKinney have paved the way and taught many of us how to win these, as well as other types of cases. They did it with passion and hard work, not slogans. As with respect, they’ve earned it and don’t have a need to demand it or sell anyone. For me, trying only, or mainly, DWI cases would become dull and boring, and I would lose the passion required to be effective. If it is only about the money, then we probably ought to do something different with the life given to us. To be effective, we have to invest ourselves, which requires our heart. As Gerry Spence says, “To win, you have to put it all in”.

When I first heard the phrase, they were just words that sounded good and right. Just like when he said, “It all begins with me”. I struggled with the phrase. It sounded so cocky and arrogant to me, until I realized it wasn’t “about” me. It begins with me, or us, because we have to know ourselves. I have to know why I am the way I am before I can be self-aware of what is happening with me and why. Knowing ourselves is also necessary in understanding others (the jury). I know that where it begins is probably deeper, but let’s begin with us. We have to find a way to explore or examine ourselves.

Ready for Trial

We were ready and willing to try Kyle’s DWI case today and had a good chance for a Not Guilty. The state made a great offer that would prevent the possibility of a DWI conviction. Offers like that aren’t given to “plea lawyers”. Prosecutors know which lawyers will “Tee it up” and the ones that never will.

Some of the ones that “never will” say things like, “Everything will be O.K.” or “I’ve got it under control”