Patience. Not drama.
by Jamison Koehler on April 4, 2019
You want to cross-examine witnesses. You want to introduce exhibits and call your own witnesses. You want to make loud, outraged objections. You want your client to see you using all of your lawyerly skills. Because that is what the client has seen on T.V. That is what the client expects.
I had a client once who was mad at me for not asking more questions on cross-examination. I concluded my line of simple questions and sat down next to her. “That’s all you’re going to ask?” she whispered.
It may be counterintuitive, but sometimes it is best to do nothing at all. The burden is on the prosecutors. Don’t do anything to help them prove their case. Sometimes this means not asking any questions of their witnesses. Sometimes it means not calling any of your own witnesses.
At a recent trial, I called my client’s mother as our only witness. I regretted this almost immediately. We had interviewed her. We had subpoenaed her. We had prepared her. And I should have left her sitting in the hall outside the courtroom as I rested my case.
This was not a situation in which I needed a piece of information introduced into evidence and she was the only person who could provide it. She didn’t exactly hurt our case. But she didn’t help us much either, and the court used her testimony – selectively — to corroborate portions of the government’s case.
Prosecutors seem to believe that when it comes to witnesses, more is better than fewer. Maybe this is the way they are trained. I struggle to understand this. The judge or jury might be persuaded by multiple witnesses all saying the same thing. But the odds are equally good that even completely honest people will remember things differently. This introduces inconsistencies in the case that the other side can exploit.
I am a minimalist: You don’t overtry your case.
Clients also like noisy accusations. They like the kind of drama you see on T.V. You can feel them squirming in their seats next to you. However satisfying this may be, the problem with this approach is that it telegraphs to the prosecutors where their weaknesses are. Now they have the opportunity to fix these weaknesses during re-direct or rebuttal. This approach also gives their witnesses an opportunity to explain themselves. Instead, let the witnesses make their claims. You thank them for their testimony and you sit down.
I mentioned my angry client from a few years ago. She fumed the entire trial. In fact, she was mad at me right up until I began my final argument. Suddenly my strategy made sense to her. She could see all the inconsistencies in the government’s case. And, with the evidence now closed, it was too late for the prosecutor to do anything about it.
The challenge is to be patient. You can’t peak too soon. There is no better time for things to come together than during closing argument – that moment immediately before the finder-of-fact begins to consider its verdict.