NW Lawyer - February 2013

Young|New Lawyers

Envision the jury en masse. Predict how potential jurors interact with each other. Differentiate leaders from followers. Jury forepersons typically have attractive personalities and probably answer your questions clearly/directly. Making these predictions forces you to stay present.

Opening Statement

Many attorneys give artful, powerful opening statements designed to advance the strengths of their case and reveal the other side’s weaknesses. Unfortunately, trial could turn out much differently than your opening statement predicts. You can appear “over the top” and lose credibility with an overly optimistic opening statement. Keep it simple. Carve your story from undisputed facts. Isolate the places where the facts may differ. Avoid overpromising. The opening statement is not argument; it’s merely a taste of what’s to come. Leave them wanting more.

Many claim jury trials are won or lost during the opening statement. But I happen to feel otherwise: consider reserving your opening statement if you’re unsure what direction trial will go. Theoretically, prosecutors must quickly win juries over because, as trial proceeds, the defense’s case only gets stronger after the prosecution rests their case-in-chief. Reserving opening statement slides the burden of proof on the prosecutor’s plate a little heavier when trial begins. You’ll also see the State’s case — warts and all — without tipping your own hand.

Cross-examination

Avoid using cross-examinations to attack and humiliate witnesses. I once conducted trial on a multi-count felony drug case involving confidential informants. Police investigations were sloppy. My strategy was to “divide and conquer” the counts by raising reasonable doubt as to each one.

Admittedly, my cross-examination of each officer was unkind. Although I exposed their inadequate investigations, the jury seemed unimpressed. My suspicions were correct — they found guilty on all counts. Later, jurors said the sheer volume of the counts affected their decision (another good lesson). Also, the judge pulled me aside and said the most impressive cross-examinations happen when attorneys are smooth, well-behaved, and dispassionate about the answers.

The best guidelines I’ve found are, not surprisingly, from Irving Younger’s 10 Commandments on Cross Examination:

1. Be brief.

2. Ask short questions in plain words.

3. Always ask leading questions.

4. Don’t ask a question to which you do not know the answer.

5. Listen to the witness’ answers. 6. Don’t quarrel with the witness.

7. Don’t allow the witness to repeat his direct testimony.

8. Don’t permit the witness to explain his answers.

9. Don’t ask the “one question too many.”

10. Save the ultimate point of your cross for summation.

“Lesser Included” Jury Instructions Acquittals aren’t the only way to “win” criminal jury trials. Victory also happens when clients get convicted of lesser charges. Here, lesser-included jury instructions are useful. Defendants have a statutory right to use lesser-included jury instructions. A court should give the instruction if the evidence would permit the jury to rationally find the defendant guilty of the lesser offense and acquit him of the greater offense. However, there must be affirmative evidence supporting the theory that the defendant is guilty of the lesser instead of the greater offense. 7 The “comments” section of the WPICs discusses whether lesser-included jury instructions are allowed. Better yet, the WPICs are freely provided by the WSBA’s Casemaker research tool. 8

Closing Argument Avoid drafting closing arguments too early. It’s very difficult to predict what evidence will get admitted/suppressed and how witnesses will testify. Instead, develop your closing argument as trial evolves. This forces you to stay present. Avoid reading closing arguments verbatim from a script. Work from an outline. Look jurors in the eye. Speak from the heart. And unless you reach a settlement during trial, never give up before presenting your closing argument. Jurors can sense when you’ve lost heart. Closing argument is your final opportunity for a knockout.

Expect the Unexpected
Anything can happen. I once defended a
client charged with Malicious Mischief
who punched a hole in a wall. For months,
I was led to believe no photographs ex-
isted. At trial, however, and right after im-
paneling the jury, the prosecutor provided
a damning photograph of a fist-sized hole
in the wall. Fortunately, the judge granted
my motion to suppress the photograph
under CrRLJ 4. 7(a)( 1)(v) due to discovery
violations. Later, the jury acquitted for
lack of evidence. Bring your rule book to
court. Luck happens when preparation
meets opportunity.

Amajor, quantifiable difference sepa- rating young attorneys from experienced attorneys is the number of jury trials conducted by each. Most other facets of practicing law are learned over time and repetition. Therefore, it’s imperative for young attorneys to prioritize and incorporate jury trials into their practice. Becoming effective in trial directly translates into becoming an effective negotiator. You’ll have a greater understanding of your cases and their probable outcomes. Good luck! NWL

Alexander F.

Ransom practices criminal defense at Tario & Associates, P. S., in Bellingham. He was awarded as a “Rising Star” Attorney from 2009–10 by

Washington Law & Politics, is currently ranked “Superb” and “Client’s Choice” by www.avvo.com, and is a former co-editor of the Whatcom County Bar Association’s newsletter.

NOTES

1. The Irving Younger: Wisdom and Wit From the Master of Trial Advocacy, Chapter 6, Credibility and Cross Examination, p. 413, American Bar Association; http://en.wikipedia.org/wiki/irving_younger.

2. Fact or Fiction: Are There Less Jury Trials & Trial Layers? If So, What Do We Do About It? David W. Elrod & Worthy Walker, 2009, p. 6. www. elrodtrial.com/docs/publications/tadc%20 jury%20trial%20speech.pdf.

3. www.kimatv.com/news/weve-got-to-find-a-way-to- limit-the-number-of-jury-trials-139924863.html.

4. Sun Tzu, The Art of War, Chapter 3.

5. David N. Finley, Esq., and Lisa McGuire, Esq., Washington Motions in Limine, West Publishing, Washington Practice Series, 2011–2012.

6. Fahringer, Herald Price, Mirror, Mirror on the Wall . . . Body Language, Intuition, and the Art of Jury Selection , 17 Am. J. Trial Advoc., pp. 197, 1993–94.