Posts Tagged ‘lawyers’

Overcoming Tough Issues in Trial- Jury Selection

December 31, 2011

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- Knowing Ourselves

December 26, 2011

Exploring who we are.

Today, we are the person we have become as a result of our individual life experiences and our choices.  Those life experiences include the good, the bad, and maybe, something we think is unspeakable.   Many will go through their entire life without thinking or looking at why they think, act, or react in this world.  Why is it important?  Why should we care?  Besides, isn’t it easier to ignore it and keep living life the same way we’ve been doing it?  Change isn’t easy, especially changing something that has been ingrained in us as a child.   I relate to Alfred Adler’s view, “there can no longer be any doubt that everything we call a body shows a striving to become a whole”. [1](Rogers, 1980 p. 113)  We lawyers all have that paper on our wall that says, “Attorney and Counselor at Law”.  Is that all we need to win?  What if we really listened to ourselves, our gut, and continued our search for ways to get better?

In 1975, John Ackerman was searching for better ways to teach lawyers.  While President of the National College for Criminal Defense, Ackerman was not satisfied with lecture style of teaching students, and was searching for a way to help lawyers become more creative, spontaneous, and intuitive so that they would be better able to deal with the constant changes in the courtroom.  He talked with John Johnson, a social worker, who after thinking and researching, came up with psychodrama. [2] (Nolte, 2008 p. 264-265)

Similarly, sensing I needed something more, I began searching for answers.  Everything I knew about lawyering came from other lawyers, many of which were doing it wrong.  Do you remember phrases like, “Can you be fair and impartial?” or “I take it by your silence that you can”  They were silent because it wasn’t real or genuine.  Jurors are intuitive and they can see right through the facades, and tricks, that we sometimes feel the urge to employ.  It isn’t productive and we know it.  Again, Gary Trichter was teaching and he said something like, “all lawyers need some psychotherapy”.   After searching the internet for “psychotherapy”, I found the Trial Lawyer’s College (TLC) in Wyoming founded by Gerry Spence in 1994.  Fortunately, Ackerman, with the help of John Johnson, had introduced psychodrama to his friend, Spence, who incorporated it into his Trial College from the beginning.  I think he saw psychodrama as a way to teach others what he had discovered in his journey.

Psychodrama was developed by Jacob L. Moreno.  He defined it as exploring the truth by dramatic methods.  We live in the same world with each other, but we all experience it differently.  My truth or perception of this world is different than yours and anyone on the jury.  Psychodrama explores an individual’s perception of the world or universe. [3] Although you can read about it in a book, psychodrama is learned best by experiencing it.  For me, it has helped me recognize and understand why I am the way I am and provides a way for me to explore other ways to live.  As an example, I now know that my well-bred reaction to feeling helpless is losing control and I now know why.  In addition, I’ve explored how anxiety, has gotten in the way of really being present in the courtroom, and in life.  At times, anxiety has been debilitating.

I told Carolynn to kick me if I started to lose my temper during the trial because I knew that the helpless feeling would come.  I knew that my own anxiety might get in the way, if I allowed it and  I knew that if it did, I wouldn’t be fully present with the jurors and would be unable to really hear them.  How does any of this apply to jury selection?  The panel is in front of us, and prosecutor is up doing what he was taught and it is looking ugly for us right now.


[1] Rogers, C. R. (1980) A Way of Being. New York: Houghton Mifflin Company

[2] Nolte, J. (2008) The Psychodrama Papers. Connecticut: Encounter Publications

[3] National Psychodrama Training Center, http://nationalpsychodramatrainingcenter.com/?page_id=13

Pat Barber, a Lawyer from Colorado City, Texas

September 25, 2011

Pat Barber burns his sign

Pat Barber, a lawyer from Colorado City, Texas recently passed away. I never met him, but I wish I had because he had an influence on me and he never knew it. He reminded me of me, and he backed up his beliefs with his money. Pat caught my attention when he put up a billboard at his Ranch on I-20 “Just Say No to Searches”. Although the Government has no problem with billboards advertising fantasies, liquor, and their propaganda, they didn’t like Pat’s message. After a long fight, they finally shut him down. Pat refused to take his sign down, instead he burned it.

http://www.justsaynotosearches.org/index.php/newsmenu/72-article-by-pat-barber-

Who is Timothy Cole?

April 10, 2009

Timothy Cole is the name of a man who once lived on this earth. Tim spent the last 13 years of his life in prison for a crime that he did not commit. When he was 25 years old, he was wrongfully convicted of raping a white woman and spent the next 13 years of his life in prison. I said white woman didn’t I? Does it matter? Well, it shouldn’t matter, but I believe everything matters when you are the one sitting in that chair with (12) jurors staring at you while the witnesses point at you and say, “He is the one, the black man wearing the black suit with the white shirt”.

We could say, “Well, our system isn’t perfect” or “that is just the way it goes sometimes”. But, we won’t do that when it is happening to “one of our own”.

Let’s think about what we are doing between the ages of 25 and 38. I’m leaving Texas Tech about a year before Tim was accused of rape. Tim is enjoying his life as a Tech student. Maybe he is thinking, “Life is good”. He has already served in the military. His parents, a Bell Helicopter manager and a schoolteacher, are proud of their son. Tim has no idea, or thought, that he will ever be accused of rape and be locked up for the rest of his life. Meanwhile, I’ve just experienced one of the best times of my life at Tech. I’m not thinking about the Tim Coles among us because it is all about me, and my life.

Tim is sitting in prison, and I am in Houston going to law school. My purpose is to go get a law degree so I can get out and make some money. Isn’t the money, the reason we live on this earth? The thought of defending Tim or anyone like him doesn’t enter my mind. Tim sits in his cell today as he does everyday, and I’m going to the beach in Galveston; riding my bicycle down the seawall; throwing bread at the seagulls; fishing in Baytown; catching a lot of shrimp; going out with my friends; and spending time with my family. Tim is spending time with his family too. He has a phone at his ear and a glass barrier in between him and his mother. He can see her tears slip down her face. My time with my family is more than a telephone call and I take it for granted. I don’t realize how special it is to be able to hug someone.

We are playing cards and board games at the lake house with my family while Tim is playing cards with other men in prison. The floor is a cold concrete floor with a drain in the middle of it. There is a stainless steel commode without a seat or a privacy door. The toilet paper is worse than what we get at a roadside park, like the one near Benjamin, Texas. Of course, there are no girlfriends or wives as God intended for us.

Well, I’m 29 years old now and have met the girl I’ve hoped for and we are getting married. A few years of living life go by and we have all three of our children now. Time is flying by for me, but Tim’s time is moving slower.

It is 1999 and I’m in Wyoming attending the Trial Lawyer’s College. It is beautiful out here and I’m learning things that I wish I learned in law school. Tim is in prison dying today from being locked up for 13 years, but the prison officials are calling it asthma complications.

On April 7, 2009, Judge Charlie Baird exonerates Timothy Cole. Judge Baird cited poor police work that destroyed, “downplayed or deliberately ignored” evidence showing that Cole did not abduct and rape a fellow Tech student. “The evidence is crystal clear that Timothy Cole died in prison an innocent man, and I find to a 100 percent moral certainty that he did not commit the crime of which he was convicted.” Judge Baird called for reforms to eye-witness identification, prisoner access to scientific evidence that could prove their innocence and compensation for the exonerated. What can money do for Tim and his family now?

Jerry Wayne Johnson, the actual rapist, confessed to the crime by sending letters to prosecutors and judges in 1994, but they were ignored. The innocence project attempted to be heard at a hearing in Lubbock where the case was originally prosecuted, but the judge refused their request. Tim’s family knew they had the rapist’s admission and DNA evidence that proved Tim’s innocence, but couldn’t understand why they couldn’t just say that “Tim is innocent”.

Texas leads the nation with 36 exonerations. Why? How can that be, with all the rights provided by our State and Federal Constitutions? We have the right not to testify; the Presumption of Innocence; the requirement on the Government to prove guilt Beyond a Reasonable Doubt. These words and phrases sound pretty good, but mean very little in our world. Many of us will go to church this Sunday and will be reminded of the unselfish gift of forgiveness. Yet, we live our lives during the week and forget the big picture. We live our selfish lives; we judge others, we hate, and don’t think about what our brothers, like Timothy Cole, are going through. Tim could have accepted the probation offer like many innocent people before him, but he was a man that would not give in to the pressures applied by our “justice system”. I will not forget Timothy Cole.

Choosing a Lawyer

March 1, 2009

I’ve been struggling lately with the way people choose a  lawyer, but more with what lawyers will do to get some money.   The self-proclaimed DWI experts are particularly disturbing, especially when they use self serving artificial slogans as if we are selling hamburgers. Maybe I should reverse roles with the person looking for a lawyer. 

“I just got arrested for the first time in my life.   I don’t know many lawyers and I think I may need one now.   I don’t know any court reporters or Bailiffs.  I don’t really know how the judicial system works.  I think most lawyers are basically the same, but I got all these letters from lawyers.  One says he has “handled” thousands of DWI cases.  Here is one with a discount coupon.  Another lawyer says he is a former prosecutor and he knows how prosecutors think.   I guess I will just pick the one that says he is the greatest. Besides, I don’t know any better, so I think I want someone who has made a decision, for some reason, to focus on DWI cases because it sounds like the way to go.”

I guess  people that need lawyers aren’t immune to the bs being sold out there either.

Edited because I’ve offended some of my friends.