So I took a little break from blogging about criminal defense, DUI defense, civil trials and matters of wrongful death. And then things just started "popping up." A new case or twelve. A kid in jail who just could not get it together. A former Marine facing life changing decisions. The mentally ill – fearing life and death as they try to remember why they are sitting in jail awaiting a trial that seems never to come. Murder. Designer drugs – did they cross the line? A power plant that didn’t. And time for playing in McCall with my three grandkids – who now enjoy riding Big Mabel (a "tube" of sorts that skips along the water behind my aging MasterCraft).
But now – even as I face the biggest case of my life – it seems right to do this all over again.
So I am back.
Here are three things I learned over the past five or so months that might help you practice law (if you have a shingle) or find the right warrior to advance your case if you have been charged with a crime or injured because some other guy wasn’t paying attention:
First – all that stuff I believe about the value of a person’s story as it relates to his or her case is in fact, the most important stuff. After a recent trial I got a call from another lawyer who had sat in the courtroom and watched me cross-examine a couple witnesses. "Your client never needed to testify," she said. "You told his story with the witnesses, even when they refused to answer your questions."
The story is the key. Sometimes it won’t be enough to win, but without the story you don’t have a chance. Maybe your have been charged with a simple battery. A bar fight started and you tried to help a friend who was too drunk and too small for that bull of man who ran his mouth and then his fists. The story is not the fight – it is all that stuff that got him to the decision point: swing and defend a friend or run and hide. If the jury doesn’t hear the story, smell that bar, taste the stale beer in the air and smoke in your lungs – well – without that stuff you lose.
Second – jury instructions are a mess, no matter what we do! As lawyers we have to do a better job drafting our model instructions. When you are on the defense it seems like a waste of time to bother drafting instructions anymore because every judge simply refuses to not follow the advice of the Supremes: "just give the IDJI." The Idaho Jury Instructions are no better or worse than any other set of instructions drafted by prosecutors and judges, but they are no help to defendants. In each of my last four trials the jury has asked for further instructions – and the judges and lawyers (me too) have all refused to go further because to do so will invite an overturned verdict.
I don’t have an answer to this problem except for us as lawyers to try harder to get instructions that are informative, and crafted in language that people will understand. Sometime not too long ago I wrote about "Normans and Saxons." Read that stuff if you have the interest in being a better lawyer, not because I wrote it, but because a Judge who understands language said it better than I can.
Third – misdemeanor defendants do not quite understand how much impact that misdemeanor conviction can have on their lives. One in four Americans now has a criminal conviction. Most of those folks committed crimes that are misdemeanors. Little stuff. Right?
Maybe not. I get so many inquiries each week from folks who want – NEED – to get their records "expunged" to move forward in their lives that I cannot really get to them all. I could probably just hire a young lawyer to do the Idaho expungement dance, but that dance does not really get rid of your conviction and almost nobody disagrees that more must be done here by the legislature. Let’s push next session to try and get some real relief. I say this especially in view of the actions by Washington and Colorado to legalize marijuana. We have a lot of pot related "criminals" who will suffer from that conviction stigma for their lives.
Time to do better.
Summer’s over and until there is snow, we have time to get back to being trial lawyers.
But let me ask you this: are trial lawyers a thing of the past?
How many trials have you completed this year?
And won’t e-discovery simply end the practice of law entirely? Sifting through tens of thousands of documents is not what we were trained to do and the costs associated with that effort threatens to end the use of trial procedures to "resolve" disputes.
Guess I am back.