Often Times It's All About the Energy

Here's an important way to inject YOUR energy into a trial. YOUR energy is important. YOUR energy helps persuade. Trials are often a battle of energy: YOURS v. THEIRS. You are always on the prowl for ways to inject the appropriate energy. Remember this: "You are in charge. From the beginning impress the judge you are not one to be taken lightly. "A fine line between confidence and arrogance. Watch you don't cross into arrogance, you'll lose credibility. "Look at the judge directly. Speak decisively and with authority. "Forget "if it please the court." Address the judge as "judge" and not as "your honor." If you need a moment in the courtroom, take it without asking. "If you want to show a document or piece of evidence to a witness, grab it off the prosecutor's desk and approach the witness, without asking. "If you want to ask some objectionable question on cross-examination, go ahead and ask. "Force them to deal with it. "Act like you're in charge. Doing so injects YOUR energy into the battle. Often times it's all about the energy and the side with the most energy wins."

The Magic of Preparation

Malum writes here about the art of defending people accused of crime. He eloquently notes the job of the criminal defense lawyer is not to seek justice, but to represent the rights of the individual. I enjoyed the way Malum explained the job of the defense lawyer:

I don't think I could be unbiased and zealously represent 80% of my clients if I took time out to consider how best justice could be served. I can’t [fathom] having to weigh in the pain and losses suffered by their victims and their victim's families. I never personalize the alleged actions of my clients. I take and read the facts of their cases as part of a poorly written story.
My job is to fill in the blanks of this story and hopefully finish it with a happy ending. My advantage is that most of the time the DA only repeats and summarizes the poorly written stories, with its gaps, holes and missing pieces. Here is where i am at the advantage because I can fill in those gaps and holes with my version.

This is where the defense does have a great advantage. Although the wise Texas defense lawyer takes their client's version with a grain of salt and corroborates as many facts as possible, our clients can help us understand the story in its entirely.

And this is where the magic begins. Now we possess a superior mastery of the facts. Now ideas pop out from magical depths. This mastery empowers us to forge a story, an argument, that is laden with fact. An argument which now leaves room for the lawyer's own emotional commitment and appeal.

This is how the defense lawyer crafts the winning argument. Not an argument about justice necessarily, but a winning argument about the individual. This is the magic of preparation. Thanks Malum for giving us some insight into your day.

Our Best Stories

We've been looking at the Story as the criminal defense lawyer's device through which he persuades the jury his version of the case is believable. Without a story the lawyer's presentation is no more than an unmemorable "information dump," failing to give the lawyer's information any context. The story gives the audience something to take with them once the presentation is finished. Here we looked at creating a human event using the story, thereby personally involving the jury. Here we learned the importance of creating momentum and suspense in the stories we tell.

But from where does the energy come enabling us to tell an authentic story? A story to which our jury will respond? In other words, how do we go about telling our best stories to move the jury into action on our client's behalf? Simply put - our credibility and authenticity comes from our own life experiences. The story we tell using an event or emotion to which we can personally relate enables us to tell our story with power. It enables us to tell our story with personal involvement. Without this emotion and personal involvement, our story comes across as hollow and fake.

Our job as defense lawyers is digging deep for the resources we need to zealously represent our clients against the power of the state. If digging deep means tapping our own experiences of fear, loneliness, and desperation, then that is where we need to go. It makes us more human and better advocates.

The Real Story

Once the facts of our case are transmitted to the jury, how will their knowledge be transformed into caring and action for our client? While jurors observe and respect a lawyer's presentation of evidence and knowledge of the law, to what do they really respond? In short, it is the human event the Texas criminal defense lawyer creates in the courtroom, it's The Story.

The jury wants to hear a story. They have an appetite for it. Our story defines a cause that makes it different from all other stories. Our story defines where the fight will occur. Our story makes the result the right thing to do. The lawyer marshals the juror's feelings, as well as the facts, moving them to action on our client's behalf using the story.

Stories told in the present tense capture the imagination. For the teller to focus everyone's attention on her telling, she is personally involved and is speaking as one human to a group of fellow humans, not as a professional to amateur. The teller is putting her audience on equal footing as people actually experiencing this human event.

The story then doesn't belong to the teller alone, it belongs to the audience and the teller together who experience it simultaneously. The teller wants the story told to personally involve the listeners. Involving the listeners to this extent, they feel their active participation is necessary for the story to achieve its proper ending. The listener feels they are necessary for the story to proceed from moment-to-moment.

Telling a Better Story

The Story is the framework within which a jury evaluates our defense. Shouldn't the criminal defense lawyer learn to tell a better story? We arrogantly assume we know how to tell stories and our arrogance inhibits our learning. We told our children stories at bedtime, didn't we? As kids we sat around a campfire and told stories ("lies") to our buddies to impress them with how smart or virile we were. My guess? The stories we told our children and camping buddies all had elements common to great stories. But as lawyers we forgot how to tell a good one. Too much legal analysis, too much legal training.

Ira Glass is well known as a master story teller. Here he talks about the basic building blocks of a good story. His advice fits no matter what kind of story you need.



In short, Ira suggests developing your story with momentum and suspense. Imagine the story is a train leading to some destination. We don't need to reveal the destination - just yet. Tell the story while leading your listener down the path you want them to go. Additionally, Ira suggests "baiting" the story to create suspense. That is, raise questions that you answer later in the story (or during the trial). Lastly, the story must have a moment of reflection. This moment shows the story actually means something to somebody (the client). The client was wrongly accused, misunderstood, taken advantage of, and the like. The moment of refection gives your jury a reason to believe you and decide in your favor.

Story telling should be fun.  Brazos County criminal defense lawyers should have fun telling their client's story, giving their jury a context within which to obtain a favorable verdict. More on storying telling later.

The Persuasive Case - Evaluate & Narrow

It's the job of the Brazos County criminal defense lawyer to select the one best case for the client from all the possible cases. Far too often a jumble of facts is presented by the lawyer, leaving it to the jury to find a case if one even exists. This method loses the emphasis of having a strong integrated case which is communicated powerfully to the jury.

After the accumulation of facts and ideas, but before the story is finalized, the defense lawyer's emphasis shifts to rigorous evaluation, analysis, and narrowing of the case to the most plausible and powerful. Facts may be subject to various interpretations or may be contested. Analysis is necessary. The prosecutor's case must also be analyzed to determine which issues are agreed upon and which issues are in controversy. The result is a list of crucial contested issues which must be the focus of the persuasive case.

Theories, facts, interpretations, and arguments must be rigorously analyzed to determine validity and strength. Theories must account for all the facts which the jury will believe or the theory won't be viable. Weak theories, interpretations, and arguments should be discarded. Out of the remaining material alternatives should be compared and a selection made of the most plausible and powerful for the persuasive case. These must then be integrated around a single theory of the case in a way that appeals to the values of the jury.

The Persuasive Case - The Story

It is the persuasive case that wins decisions from the jury. Since the jury decides whether the case is persuasive, it must be built from their point of view. The law furnishes the framework within which persuasion must take place including the charge elements, defenses, and evidence foundations. But the legal case must be distinguished from the persuasive case since jurors do not think like lawyers. For the most part they don't engage in legal analysis because it is meaningless to them. They are people oriented, rather than law oriented. They use their feelings and emotions to make decisions more often than logic. Consequently, the College Station criminal defense lawyer must build the persuasive case upon the basis of the jury's belief system. Every case, every action the defense lawyer takes must be evaluated from the juror's point of view.

The story is the device which best allows the jury to comprehend and retain the case. It is the memory device for organizing, understanding, and retaining facts and ideas. The story is also used by the jury to determine whether they will accept the case as plausible. The jury determines how plausible the case is by placing the story next to their own ideas about how the world works. Then they accept as plausible that which corresponds to their own ideas.

To be plausible the story should have several characteristics in addition to being consistent with the juror's experience. First the story should be organized around one theory of the case or interpretation of the facts. The story should be consistent within itself and with other facts which the jury will believe. The story should have completeness and context, as well.

The story must also be painted with imagery so the jury can visualize the event. This way the event becomes real to them. Additionally, the story should appeal to principles and values important to the jury. Values such as right over wrong, justice over injustice, truth over untruth should form the basis of the story. The story must also appeal to common sense and be such that the ending is fair and just only if a favorable verdict is awarded.

The Persuasive Case - Brainstorming for Ideas

After obtaining the facts, the criminal defense lawyer must brainstorm for the ideas which will organize the facts into a coherent, unified combination of facts and ideas necessary for the persuasive case. The ideas may be possible theories of the case, interpretations, inferences, possible arguments, possible language to use, possible rebuttal to the opposing case, impeachment ideas, and any other ideas that will unite the case into the most plausible explanation (or story) for the jury.

Unfortunately, the emphasis on legal analysis often prevents creative thinking by the criminal defense lawyer. Brainstorming is a form of creative thinking with two very important requirements. First, the goal of creative thinking is to develop as many hypotheses, theories, interpretations, inferences, explanations, and other ideas as possible to how the litigated event occurred. That is, the defense lawyer works to develop the maximum number of ideas. Second, the evaluation of these ideas must be done, but must be postponed or the lawyer's evaluation will hinder the free thinking necessary for maximizing the number of ideas.

Creative thinking, or brainstorming, must be approached with determination to find every useful idea. The lawyer must also remain optimistic and believe this process will indeed produce useful ideas. The depth produced by brainstorming will more likely result in truth by unearthing many ideas which are at first not apparent to the defense lawyer. As ideas are collected, the new ideas generate thoughts of other new ideas and the thinking of the lawyer becomes deeper and closer to the truth. The important idea here is to creatively and actively think about the case.

Next in this series on building the persuasive case is organizing the facts and ideas into a story that appeals to the belief system of the jury.

The Persuasive Case - Get The Facts

Why should a potential client know how the persuasive case is built? Isn't that the criminal defense lawyer's job? Fortunately, an informed client can benefit greatly from such knowledge. It means they can be actively involved in the development of their own defense. Involved clients are often happy clients. Secondly, when shopping for the right defense lawyer the informed client has objective criteria from which to chose a defense lawyer. If they interview a lawyer unfamiliar with building the persuasive case, the client should be looking elsewhere for legal counsel.

The first post in this series on building the persuasive case focused on credibility. The next areas to explore are fact gathering, developing legal theories, and brainstorming for ideas. Today we'll talk about gathering facts.

Factual material should be gathered from every possible source within the economic limits of the case. The client is a major source of information. Beyond the client, an independent investigation should be conducted by the defense lawyer. That means interviewing key witnesses and sometimes using a hired investigator as part of the defense team. A criminal lawyer should always discuss the utility of hiring an investigator during the initial client interview to help the client prepare for possible expenses that might be incurred.

The crime scene should be visited - including the time of day of the alleged events. Plan on taking photographs, preferably digital photographs which can be downloaded onto a computer and organized using an appropriate image viewing program. Depending on the case, physical measurements of the scene could be obtained. Sometimes preparing a scaled diagram of the area is important. Observe lighting conditions, traffic patterns, and movements of people in the area.

Develop a discovery plan. Specifically, what information is needed from the prosecutor to help develop the case? What photos or video did the police take? What physical evidence was collected? (Amazingly, so few lawyers even inspect the physical evidence when preparing for trial). Often prosecutors will provide informal discovery if they believe the defense lawyer is working towards a resolution of the case in good faith, even if the prosecutors have a closed file policy like those in Brazos County. Always get the police photos. Always view the police video. (Criminal cases have been dismissed after prosecutors realize their video did not quite match what the police report said). Always get copies of recorded audio.

What kind of relevant documents exist? What search warrant affidavits, probable cause statements, accident reports, or other public information is available? Medical records, hospital records, MHMR records, school records, and public records pertaining to the client, alleged victim, and witnesses. Obtain information and standards from governmental organizations through subpoena or open records requests. Training manuals, standards documents, and the like. For example, field sobriety testing manuals are commonly used to develop an attack upon a police officer's administration of DWI sobriety tests.

Once factual materials are gathered experts may be needed to evaluate the evidence. Forensic experts, psychologists, fingerprint experts, or others pertinent to the case. Maybe a toxicology expert in a DWI case. Certainly, a computer forensic expert in a child pornography case. DNA experts when the State is using biological evidence. The list goes on and one. The possible expenses involved with hiring experts should also be discussed with the client at the initial interview.

Once the facts are gathered the Bryan criminal defense lawyer can begin to decide upon legal theories applying to the case and brainstorming for ideas. Those topics will be next when we return to building the persuasive case.