Things Slow Down

by Jamison Koehler on September 23, 2013

I always have the best intentions after attending a good CLE.  Returning to my office with a binder full of great information, I have every intention of reading through all the materials that were just referenced during the training.  The binder lies on my desk for a couple of days.  After a week of so, I move it onto a side table to make room for new stuff.  It ends up on my shelf never to be touched again, like the steadfast tin soldier in the Hans Christian Andersen tale:  “but he remained firm, and never changed countenance, and looked straight before him, and shouldered his musket.”

I attended yet another first-rate CLE put on by the Public Defender Service (PDS) this past weekend.  (Yes, yes, you would hate me if you saw me there.  I don’t sit in the very first row because that would be too obvious.  I sit in the second row, over to the side just a bit.)

Ed Shacklee, Tom Lester, and Jeff Stein did a breakout session on cross-examining the chemist in a drug case.  What I like about these guys – in fact, what I like about PDS in general – is that they are knowledgeable and committed without also being preachy and smug.  They do not speak down to the rest of us.  Instead, the approach they take is one of cooperation and support:  We are all learning.  We all make mistakes.  Let’s figure this thing out together so that we can all do a better job of representing the accused in D.C.

Shacklee was talking about how intimidating it can be for a non-scientist to cross-examine a government chemist.  Sometimes we also have to deal with a cranky judge who is annoyed with us for dragging the whole thing out:  The test shows that it was a controlled substance.  Why are you wasting all of our time?

But it can and should be done.  You focus on a few areas in which the government is vulnerable. And then you do it again and again, each time learning from your mistakes the previous time.

Irving Younger has said that you need at least 100 trials under your belt before you can really call yourself a trial attorney.  And repetition does help. There used to be one courtroom in Philadelphia that on certain days would only do preliminary hearings for drug cases.  You get pretty comfortable cross-examining one of the government’s experts after you have done it 10-15 times in a row 5 days a week.  You learn little tricks.  You begin to see patterns.  And suddenly it is not so difficult to differentiate between 30 red ziplock packets and 14 ziplocks with “Superman” stamped on them, and so on.  Things slow down.

Private attorney Scott DiClaudio used to wait until the government spent all sorts of time qualifying a police officer as an “expert.”  His first question would then be:  How many grams are there in eight-ball?  Sometimes it was even more basic:  How many grams are there in an ounce?  I never once saw him use this tactic unsuccessfully.  Suddenly the “expert” didn’t seem quite so formidable.  Suddenly he didn’t look quite so smug.

{ 1 comment… read it below or add one }

Janna September 26, 2013 at 1:51 pm

Yes, it’s often easy and effective to throw a pompous person a curve ball because they rarely see the big picture/are the proverbial big fish in small ponds but don’t know that.

For example, I had a Wikipedia editor, who’s a bad writer who specializes in deleting people’s revisions for sport and violating Wikipedias civility guidelines, with the knowledge that her anonymous Wikipedia “Sr.” editor friends will exempt her from Wikipedia’s rules and ban anyone who takes her on. She does the same for them. This has been going on for at least 5 years, in her case.

Part of the problem was that she was good at being a sociopath generally/harassing people without unequivocally violating the letter of Wikipedia’s law. Yet at one point she deleted all the revisions I did regarding the Wikipedia article of someone, who shall remain nameless, without bothering to read them first.

She accused me of being the subject of the article, which I took as a great compliment as that person is a world-class professional, who needed to advertise on Wikipedia, the garbage can of the internet, despite being demonstrably world-famous if one looked at any source but Wikipedia.

When pressed for an explanation as to how my edits reflected anything but facts, (.e.g I cited the Martindale-Hubbell entry as a reference for where this subject went to law school whereas before the reference pointed to the individuals website), she sputtered, tried to changed the subject, and sent me a gazillion nasty e-mails making unsubstantiated accusations to the effect that I was a sock puppet who had been banned.

I wasn’t and she couldn’t prove otherwise.

She finally clearly blew it yet expected me to use Wikipedia’s system for protesting her sloppy editing standards and less-than-civil conduct.

Instead, I politely said the equivalent of, “thanks, hon. As much as I’d love to take time out of my life to plead my case to the weenie “Sr. Editors” that have long histories of protecting you, I’ll just report your slander and harassment of your fellow editors to Wikipedia’s legal department. If they want to run around soliciting donations/claiming non-profit status on the grounds that they’re providing a free-speech forum that’s truly open to all, they need to keep people like you under control.”

I’m not exactly sure what her response to that idea was because my nervous system heard her scream even though it was probably thousands of miles away so I decided to block the 36 e-mails she tried to send me. They probably insisted that I had no right to protest her conduct to anyone but other anonymous weenies on Wikipedia.

Suddenly the “expert” didn’t seem quite so formidable. Suddenly he didn’t look quite so smug.

Yes, and it feels good to have achieved that result!

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