Rule #9: "Never Go Anywhere Without a Knife"

Ok . . . I admit I borrowed this Rule from Leroy Jethro Gibbs. But what can I say . . . I just love knives. Kershaw assisted-opening knives are some of my favorites. This model, manufactured under the brand Zero Tolerance, is called their 0301 Tactical Folding Knife. This baby is strong, tough and opens like a bazooka. It feels like a tank in my hand. The Tiger stripe on the blade is really an eye catcher, too. This knife is so cool, I rarely use it to cut anything. It's like a new car you're afraid of scratching up. And I DON'T take it to court, for those who were wondering. Most of the time I'll carry it to the office on the weekends, flipping it open and closed as I ponder my next criminal defense strategy. So, for criminal defense lawyers with the need for a strong tactical folder, I highly recommend the Zero Tolerance brand of Kershaw assisted opening knives. 

Rule #4: "Eat Elephants One Bite At a Time"

Most of us have heard this one. The trouble is we still don't believe it. Sometimes the tasks at hand seem so huge and unsurmountable, we never hunker down and take the first bite.

This is one rule that applies broadly to both criminal defense practice and life in general. Big tasks and hard-to-reach goals often seem hard to accomplish (or even start), but by taking things one small portion at a time anything can be done. Just ask the elephant who got eaten one bite at a time. 

As a criminal defense attorney in College Station my cases often start with mountains of records and evidence to sort through. To look at the table full of binders and think I must read and understand all them before trial is often intimidating. But I've learned over years of experience even the biggest "elephants" can be consumed with perseverance. The trick is to tackle each job step by step and not let the size of the project paralyze my efforts. Patience is the corrollary to Rule #4.

I know no elephant-sized piece of work, obstacle, or goal is too big to be completed, overcome, or accomplished. But this realization comes only by going slow and never biting off more than you can chew. It's important to eat elephants one bite at a time because if you don't, you may never get through the first piece.

Rule #12: "When the verdict's in, pack up your gear and go home"

You can be the best criminal defense attorney in the world . . . work harder than anyone else . . . out-prepare your opponent . . . show up to court every day ready to do battle. Unfortunately, although a recipe for success this work does not guarantee success. Often you're going home not getting the results you'd hoped for. 


After my closing statement is complete and I've listened closely for objectionable statements in the prosecutor's final argument, the case is finally submitted to the jury. The pressure is off. I've done my job. The case is now in the hands of another. However, the moment a verdict comes back worse than expected (or hoped for) you feel all your energy for the last weeks and months might have been a waste - you wonder where you went wrong . . . maybe kicking yourself for not doing things differently. But this is not the end. This is an unavoidable moment in life for every criminal trial lawyer. This is the time to pack up your gear, go home, and not look back.

Despite the great effort invested into our case preparation, often the results are simply unsatisfying. We are warriors and warriors like to win. Maybe we thought the client had a good chance for an acquittal. Maybe we thought we should have beaten the plea bargain. These instances eventually become the moments we reflect on - the moments we make decisions to change for the better. But only after we've put the case behind us and we are looking forward.


The best lawyers on the planet lose cases.  It's inevitable and, maybe, even desirable at times. Investing everything you have into a case and then losing has a humbling affect. Importantly, humble lawyers win cases. Humble lawyers maintain credibility. And we already know credibility is the key to everything. But humility only comes after reflection. And reflection only comes after we pack up our gear and go home. 

Rule #14: "Never Ask Why on Cross Examination"

There are exceptions to every rule. But for the young criminal defense lawyer (one with less than 10 years experience) there's no exception to this one. Never ask why on cross examination! The witness on cross examination is typically adverse to your position in the case. Asking "why" gives them open season to gut you in front of the jury and a bunch of other people you don't know. Very embarrassing. 

The object of a good cross is to compel the witness to admit things they must admit . . . information damaging to your adversary or helpful to you. Each time you ask an open-ended question on cross the door is open for the witness to stick a dagger in your throat. 

So it's important that criminal defense attorneys ask only leading questions on cross examination . . . effectively testifying themselves with the witness acknowledging with the obligatory "yes" answer. Instead of asking "Where were you?" we'd ask "You were at your apartment that night." This leaves just enough space for the witness to respond with "yes" but no room for them to give any explanation.

When cross examining a witness you want to get out the important facts that help your case, or hurts their's, and nothing else. When asking "why," you're giving them a chance to explain. Oops! Unless you don't care what the answer is, never ask why! Leave the explanation for your closing argument where the witness has no opportunity stick that dagger in you. 

Rule #33: "Credibility is Everything"

You can't get anything done in life if folks don't believe what you say. Every life relationship is built on trust, including the relationship a trial lawyer has with their jury. Working to convince twelve people to believe you . . . the criminal defense lawyer . . . is a tough, uphill battle. When a prosecutor declares they represent the State, they immediately have credibility with the jury by default. They can lose this credibility, but they usually don't need to work hard to get it. Not so with the defense lawyer. We must earn the trust of the jury. When we stand up to speak people are always skeptical of us and what we have to say.

Moreover, if we want clients to invest in our skills as a criminal attorney, we must prove we are credible and worthy of their trust. When working with prosecutors and witnesses, they must trust us to tell the truth and keep our word. Finally, when in trial the jury must recognize our credibility if they are going to be open minded about our theory of the case. From the moment we walk in, we must appeal to people's logic and reason as well as to their emotion. But first we must convince them we are credible.

In law - as well as in life - credibility is everything. Before establishing any kind of relationship - be that with a jury, a coworker, or a friend - you must first establish trust. In order to be trusted you must be credible. If a criminal defense lawyer doesn't have credibility he has no foundation upon which to build trust. Credibility, therefore, is everything.

Rule #17: "Beware of the Rocking Chair"

I learned this lesson the hard way . . . one learned during my third year in law school at a mock trial competition. It wasn't a real case but it was real enough for me and real enough that the lesson learned stayed with me all these years. The other name for this Rule is "When you are finished with an exhibit, put it away." It avoids much embarrassment especially if you hate losing as much as I do. "Beware of the Rocking Chair." 

My partner and I were on the defense. Our mock trial client was charged with murder and we believed we had a clever defense "angle" on the case. Our theory was our client could not have shot the victim as alleged because he'd been shot in a rocking chair and the bullet trajectory was inconsistent with the prosecution's key witness. During our closing argument we used a rocking chair as demonstrative evidence. 

My mistake? Not putting it away after I was finished. I left the chair in the middle of the courtroom as the prosecutor stood up to give his rebuttal. Needless to say, my opponent used the chair to shred my defense in the most embarrassing way.  Even my wife cringed as the rocking chair was shoved down my figurative throat. Had I simply put the exhibit away I think I would have avoided the shock. That was the lesson. 

In my work as a criminal defense attorney I often use various exhibits and presentations to illustrate evidence to the jury. I will have a witness introduce the exhibit and then describe how the information presented is relevant to our case. After I've gotten what I want, I put the exhibit away. Leaving something out not only looks tacky and unorganized, it gives my opponent (and the jury) a chance to deconstruct my argument and use my exhibit against me. 

So that's Rule #17. When you're finished with it, put the darn thing away. Don't let the proverbial Rocking Chair get between you and a victory.

Rule #37: "Learn to Think BIG"

Anything worth doing is worth doing well. In fact, in everything we do there's potential to make it not just better, but BIG. In this way every endeavor can be made into something great. Folks in every profession make the mistake of being content with overwhelming mediocrity. 


I train my people to think BIG. If something isn't going well there's a greater potential to be reached with a little extra effort. Even when things are looking good the most exceptional people will see where improvements can be made. That's the mindset I want my people to possess.

Notice the Rule doesn't teach one to necessarily think big, but to LEARN to think BIG. Thinking BIG is a process, a mindset, a lifestyle. But it doesn't come naturally. It takes work because there is risk in thinking BIG. Risk of failure. And yes, the risk of being successful, which can be scarier still. In running a criminal defense law firm, like any business, learning to think BIG brings rewards. Better service to the client, more rewarding financial gain, and a happier team. 


If it's worth doing, it's worth doing BIG. Learn to mine your potential. Learn to think BIG.

Rule #3: "Never Lie to Anyone . . . Ever"

Contrary to public opinion defense lawyers are not compulsive liars (i.e., used car salesmen!) who will say anything to win a case. The bad ones might be, but not the good ones. While being a good criminal attorney often involves interpreting evidence differently than most people would initially, my work does not require . . . nor does it allow . . . me to lie under any circumstance. Everything I do as a defense lawyer requires integrity and requires I maintain my credibility with others. (see Rule #33: "Credibility is Everything")  Whether that be with the jury, judge, prosecutors, or the public. Trust is the lawyer's stock and trade and that means being honest with everyone, all the time. 

Often my work requires me to separate fact from speculation. It requires me to be a zealous advocate for the real people entrusted to my care. Sometimes I need to suppress evidence and argue that seemingly "incriminating" evidence is not incriminating at all. But lying is not part of that job description. Rather, out of respect for the law, the court, the prosecutor, and my client . . . my integrity and my honesty . . . are everything. 

So the Rule is never lie, to anyone, ever. We might need to parse our words as defense lawyers. But make sure those parsed words are still the truth. The lives of others depend upon it. 

Rule #24: "Know the Facts Better Than Your Opponent"

My old boss taught me this. Every criminal case in existence was driven by the facts. Sometimes by the law, but most often by the facts. Usually, the side with the best facts has the momentum and most favorable position. But not always. Sometimes the side who knows the facts better than their opponent has the upper hand. Therefore, Rule #24.

Often there's a plethora of information flying around and it's easy for the defense lawyer to lose track of seemingly unimportant details and get bogged down. That's why I also favor Rule #5: (Always visit the Scene), Rule #6: (Read Everything in the File) and Rule #28: (Out-work Your Opponent). It's a mistake not to know the facts and it's darn hard work to make sure you've got a complete understanding of each facet of the case. But again, even if the facts aren't on your side, if you know them better than the other guy, you might have the advantage.

Finally, juries like it when you have a better grasp of the facts. That helps you build credibility with them. See Rule #33: (Credibility is Everything). One of the best ways to persuade is to demonstrate to the jury you know more about the case than your opponent. They are more likely to trust you. And this trust is often the tipping point in the deliberation room.

Rule #22: "Wear a Suit"

One of the first things we notice about someone is their style of dress. We make judgements about their personality, their state of mind, their confidence. And perceptions aren't just important, they may be everything. Seems simple enough.


I enjoy wearing suits. I believe my clients like it when they see me in one. My wife tells me I'm handsome in a suit. Prospective clients expect to see their lawyer-to-be in one. I've got a closet full of them. So for goodness sake . . . wear a suit.


Each time I meet with a client (except maybe weekends) or tussle with a prosecutor I like wearing a suit. When a client first meets me I want to make clear I'm a pro. In my business pros wear a suit.  Nobody was ever impressed with a flip-flopper. Perception can be the difference between signing a new client or losing a sale.


So the rule is wear a suit. You just never know when perception will be everything. Appearances matter and first impressions last, especially in the life and work of a criminal defense attorney.

Rule #13: "Never Give Up, Never Surrender"

I didn't write this Rule for me, I wrote it for my friend. "Never Give Up, Never Surrender." I lived this Rule so she could see it in action. I wanted to show her the value of pushing forward . . . even in the face of certain defeat. I wanted her to learn about our professional responsiblity to fight until the end, until we had no more opportuntiy to fight, until we had no more energy to fight. She was the best I ever had. The brightest, the fastest, the one who made sure I was never attacked from behind. The one who made sure I did my best.

I wrote this Rule because I knew where she was going. She didn't know yet even though she thought she did. But I knew she was headed straight for hell-on-earth and I was trying to teach her how to survive there . . . to give her something to grasp when life seemed impossible to live. 

When she reads this she'll know it's about her. And she now understands about hell-on-earth. About fighting battles and wondering why she doesn't win. About doing her best, but coming up short. I know she's also learning we must often retreat and regroup . . . before we can attack again. That retreating is not giving up, it is not surrender. Sometimes we must retreat to find our energy and our center again. Our reason for pushing forward in the face of uncertainty, and even defeat. 

I won't allow her to quit because I understand her dream. I understand it because it was my dream, too. Because we all need someone pushing us from behind and pulling us from the front to get to our dream. There will be no giving up! There will be no surrender!

Rule #11: "Deny, Delay, & Defend"

Ok, this one isn't original. But it's still a good one and worthy of my list. The 3 Ds of criminal defense work; Deny, Delay, & Defend.

The first thing the police want is a confession.  Let's face it . . . a good confession makes their job so much easier. My advice to folks . . . the targets of criminal investigations . . . is to keep your mouths shut. Speak to no one on the planet, except your criminal lawyer. And for goodness sake, if you're going to say anything, at least DENY it. Since once you admit, you are probably toast.

I love DELAY. It gives me time to work. It mucks-up the system and judges loath it. It helps my case get old, mildewed, and smelly.  We don't want speedy trials.  Speedy trials are bad for the accused. Provided my client is keeping out of trouble, DELAY can do wonderful things to a criminal case. Witnesses forget, get in trouble themselves, move off. Prosecutors get sick of my case . . . and me. I love it. It works. As long as they haven't convicted my client, we've got hope. DELAY whenever you can.

Finally, DEFEND. Defend only when you must. Frankly, defending a criminal case often doesn't work out well for the accused. It's a fact of life. Juries are unpredicable, they sometimes want blood. Judges are mean. Prosecutors, well, prosecutors need to get a life. In any case, DEFEND if you must, but only as a last resort. It's tough out there, you know.

Bryan/College Station criminal appeal lawyer, Steve Gustitis, has practiced criminal law exclusively since 1990. First as an assistant district attorney with Brazos County and then in private defense practice. He is Texas Board Certified in criminal law and committed to the aggressive and ethical defense of citizens accused of crime.

Rule #29: "Think First, Talk Second"

I learned this one the hard way . . . clients hanging on my every word; their future at stake.  Jurors, as well . . . watching to discern my true intentions. Am I a liar selling shoes or a truth teller with a righteous cause? Opposing counsel listens intently for signs of weakness, an admission, or a mistake which might give them the advantage. 


Mostly, I'm talking on the run, thinking on my feet, responding to the most recent volley from an opponent. Which words do I choose? Which tone of voice . . . quick words or slow?  How do I utter them with sincerity, compassion, indignation? What is needed at that precise moment to achieve my purpose? Well, I've got to think about it first. 


Law school teaches you none of this. Only the trenches helped train me to think about each word and its effect in the moment just before release. Only the trenches taught me to practice my delivery in my mind . . . just before the hearer hears. The hard way, my mistakes, taught me the way.


I train my people to think like this. It's difficult, it's unnatural, they don't like to do it. But it's necessary. I train my people to think about their words before they make a sound. It can be the difference between making a sale, or losing a client. The difference between maintaining credibility or losing it, or promising too much.


It's necessary . . . it's Gustitis' Rule #29. Think before you speak. You'll never regret it. 

Gustitis' Rules

Throughout the fictional CBS television series NCIS, Leroy Jethro Gibbs periodically reveals his numbered rules to live by . . . his Code. (Gibbs' Rules) Rule #1 is "Never screw over your partner." Rule #2 is "Always wear gloves at a crime scene." Rule #15 is "Always work as a team." There are over fifty rules in all. Rules which he learned over the course of his life as a Marine Corps sniper and NCIS Special Agent.  

In my work as a criminal defense attorney I - like Gibbs - have developed a set of rules . . . my Code. Rule #1 is "Always keep your promises." Rule #6 is "Read everything in the file." Rule #22 is "Wear a suit."  I've got over 40 rules to live by.  My rules have come from my life in the legal profession, but extend further into everyday life and character development, as well. In the coming weeks I'll be posting Gustitis' Rules, my Code, here on my blog. Stay tuned.