In the hey-day of hippies and LSD, a critical phrase was ‘you’re either on the bus or off the bus.” Loosely translated, it meant you were either “with it,” i.e. fully along for the ride, or you were being left behind. But for the world of trial advocacy, the phrase can have a decidedly different
Lawyers ‘get’ scales. The scales of justice. The scales that are tipped ever-so-slightly when the preponderance burden of proof is explained. Indeed, that quantitative weighing is core to a civil case adjudication, and when mishandled may cause error and reversal: the district court judge erred when he interrupted counsel’s argument and informed the jury
Two recent reports confirmed what experience has shown. Bad lawyering in criminal cases is to be blamed not merely on individual attorneys – the proverbial “few bad apples” – but on a systemic tolerance of underperforming. This was brought home, first, when a federal judge in Maine concluded that a criminal conviction would not be
At the end of a lengthy (or even not-so-lengthy) trial, an exhaustion factor creeps in and the fatigued lawyer sits back as jury instructions are read. But attention must be paid, especially when a judge extemporanizes. The failure to do so may allow an unconstitutional jury instruction to slip past. This is best illustrated in
Factfinders – judges and juries – rely on a witness’ claim of first hand knowledge. “I looked down the street and saw X occur.” And indeed, personal knowledge is a legal prerequisite for all except expert testimony. Yet too few lawyers take the fundamental and essential step of standing in the shoes of the percipient
Much is lost by the audience when lawyers speak to [or “at,” which is even worse] jurors. As one article concluded, “the human mind does not always act like a sponge. In the legal setting, lawmakers, judges, and scholars hope but hardly expect that jurors exhibit perfect retention of trial facts, particularly in complicated trials.”
In one sense the rules on using proof of character to explain conduct are simple – no character evidence in civil cases, some character evidence in criminal cases, and when character evidence is allowed it must be limited to the pertinent trait. There are honest murderers, but no non-violent murderers; and there are violent thieves,
Be it because jurors appreciate and value a lawyer’s candor, or because damage control or ‘spin’ is the better way to address painful or discomfiting facts, a direct examiner best serves the witness and the case by ‘fronting’ bad evidence. [An earlier ADVOCACY AND EVIDENCE blog on the law and advocacy rationales for doing so
As Washington continues to grapple with the nuances of lying, some citizens suffer from a stigmatizing federal law that treats them as if they were convicted liars without any logical or scientific justification. Consider this scenario: An eyewitness foils a potential terrorist act, saving thousands of lives and earning praise from the community for bravery. The
Lawyers who handle capital cases – those where the death penalty is the potential punishment – know that building ‘the case for life’ is at least as important as defending against a conviction. Most capitally-charged cases are not brought unless the prosecution has strong if not overwhelming evidence of culpability and mens rea, so the