So I am back from TLC – didn’t have time to post last week and I am so tired tonight I can hardly even think about all that I learned. I will stand by what I said a couple weeks ago, TLC can change your life. It can change your practice. It can help you win cases and it can help you connect with other lawyers – some 800 or so have graduated from TLC – and take your trial skills to another level.

Strangely enough, it all starts with psycho-drama at TLC. Psycho-drama? Think of it as a way of exploring the story of your case. By re-living the event (like the shootout that forms the basis of your assault case), you can get to all the feelings the event created, and figure out how to sell your story during direct. Still, psych-drama is not enough in itself to change your case. It is just the beginning.

Yesterday my TLC class went through the graduation ceremonies at the ranch. Today we scattered to our home states and tomorrow some of us will go back to our offices and handle clients and cases and bills – you get the picture. Work. Not techniques taught in a barn in Wyoming, but real cases, with real clients and real issues to handle. Today I am too tired to do that. But tomorrow – I am really looking forward to tomorrow. And really looking forward to going to court again. Getting to the story, and developing our case. Got a case? Let’s talk.

So I admit it, I was wrong. I do want my life changed and this is just the place to do it. After only a week of recharging my batteries at Gerry Spence’s Trial Lawyers College, I have a new respect for psycho dramatic techniques and for development of the story. Both have played prominent roles these past days. Psycho drama is a means of re-living the story that brought the client to you. It literally involves a re-enactment of the events. The process has great application in criminal cases because there are clear, defined scenes that can be explored with clients and witnesses. Multiple "views" of the events can be examined from their different perspectives. I have used this process before in both civil and criminal cases, and frequently have used it with a focus group before trial. TLC’s incredible staff is adding new tools for me to use as I get ready for trial.

Every case is really just a story – and every story is just a series of scenes. But in what order should the story be told? Who should tell the story and how? What scenes should the jury "see?" And how do we get the jurors in our cases to help our clients? We have been exploring all of this and more. Years ago I started using story and theme to build the case, from voir dire to closing. "Just tell your story!" Spence is prone to yell. And he is right. We are "story people." Our histories as humans have been told in story form. When great teachers through history have wanted to make a special point they have always relied upon story to engage and hold their audience. So this is not new for me – but working on story development and building on themes developed in psycho dramas will certainly become more focussed after TLC.

Last night I heard Paul Luvera use the term "Reptilian Brain" as he spoke about how he recently won a $40 million verdict for a worthy client in Everette. The term is one I read recently in John Medina’s book, Brain Rules. To get a sense about how we think and the role our three (that’s right – 3) brains play in our own personal survival, check out his website and buy his book at www.brainrulesbook.com.   The book is fascinating reading, and it will really get you thinking.  Luvera has keyed into something that is critical to understanding jurors here – and we need to understand how jurors think as we build our story and develop our case.  Tapping into it the Reptilian brain can mean the difference between winning and losing at trial.  Because this stuff has such power, I do not plan to share now, but call me in August or join in the discussion then, after I get back to Boise from TLC.

Time to get back to work – we have the day off and I am in Jackson Hole with some classmates.  I cannot wait to put this stuff to work and win your case!

They say attending the Trial Lawyers College can change your life.  I’m not sure I want my life changed, but I am looking forward to spending the next three weeks at Gerry Spence’s Trial Lawyers College, in the remote mountains of Wyoming.  I’ll be there with 48 other lawyers, chosen from across the US.  The whole thing sounds daunting but exciting at the same time.  Spence and others will attempt to remake us in our own image – that’s right – our image, not theirs.  The truth is, no lawyer can successfully be anyone other than him/herself.  Attempting to imitate anyone else would simply not work because jurors see through that type of ruse.  As I tell jurors, I am just a little guy in baggie pants.  Just a "ham & egger," catching cases that seem mundane to some, but case that are huge to the folks involved.  So off I go to learn from great teachers – and to teach a little myself.  I will share the stuff I have learned that works, and get ideas for cases that are coming up soon.  Over the next three weeks I will break away from Thunderhead Ranch (no cattle, no round-ups, no TV, no cell phones) and post updates about my experience.  If you have been wondering what happens there, stay tuned.  I can’t share the secret handshake, but I will share what I learn about the process.  After 25 years of doing this stuff, a little refreshing seems in order.  And maybe you will decide that you should attend too. 

Speaking of process – I was reminded today of an article that appeared in Litigation magazine in 2006, authored by a Federal Magistrate Judge I left on a racketeering jury.  Yes, I left him on a jury.  Other lawyers called me as the trial dragged on, mostly wondering what kind of fool would leave a sitting judge on a jury.  As it turned out – the kind of fool who trusts the man, and does not fear the robe.  The article is entitled A Judge On The Jury and it records Judge Larry Boyle’s observations about the role of the lawyers at trial.  The trial went on for ten weeks, and the indictment alleged over 150 crimes ("predicate acts" in RICO lingo).  In the end, the jury acquitted on all but 5 of the predicate acts.  It hung on those 5, unable to reach a unanimous finding.  More important than the result is Judge Boyle’s observations on how jurors watch what we do as lawyers.  His article should be read by every lawyer and client before going to trial.  Jurors watch the client and the lawyers, but in the end it is the evidence – the testimony and the exhibits – that drive the cart.  That could be good or bad news depending on your case.  If you have a minute read the article.  No more minutes for me.  Gotta pack for TLC.  Maybe I can figure out how those 5 predicate acts got away.

So the third day came and the evidence against my client did not look nearly as grim as expected. Yes, she had received money from the state for caring for her mother; and yes, her mother had not been in Idaho (or the US for that matter) during some of that time. Still, the charges required proof of a specific intent, and when the state rested, with little more than I had conceded in opening argument, I did what every criminal defense lawyer does – I uttered that Rule 29 stuff. Not enough evidence judge. No jury could find specific intent beyond a reasonable doubt. And I handed him a little brief with a couple of Idaho cases on specific intent in theft cases. And I breathed a little breath of that rarified courtroom air, and waited. But not for long. “It’s a little thin, Mr. prosecutor. You’ve gotten all you could out of it, but the evidence is what it is.” “Yes,” he said, “but intent can be inferred.” But not here. Not this time, Mr. Prosecutor. This was one of those cases that tugs at your guts in trial. My client had taken great care of her aging mother. Mom had gone back to Iran (and yes, that raises all kinds of problems in jury selection) to visit family. The money had been used to help pay for care in Iran. Good faith trumps specific intent to defraud, sometimes. And this was one of those times. Not Guilty. Motion for Judgment of Acquittal granted. Client smiling and mom thankful, we left the courthouse. But now the question: how much proof of the specific intent is really required? If you are headed to trial in one of these – chime in.

Thursday is not a day that one usually begins a felony Medicaid Fraud trial, but that is where I find myself today. Trying to beat the long weekend, we got it going today in hopes of getting to the jury by next Tuesday. I thought a lot today about Gerry Spence’s advice in his latest book that we “embrace” our fears about the case during voir dire. Tell the jury about what scares you. Then get them to talk about the issue and see if they have the same fears or prejudice. In my case it is my client’s ethnicity – she is Iranian. I shared with the jury my concern that I may have prejudged Iranians in an unfavorable way and I wondered, out loud, if any of them shared similar thoughts. Could they give my client a fair trial? The answer really would depend, in part at least, on whether they could get past their own prejudice. And Gerry – it worked. They spoke. We talked about the hostages, and the Shah, and all things Persian. Then a little mouse of a voice reminded us that my client was an American citizen, just like we are. “She’s just like us.” And heads bobbed, and affirmations echoed and we were over the “she’s one of them” stuff. Spence says this stuff works for “ham & eggers” like me, and perhaps, you. Maybe it does. Will let you know how this trial works out. And if you want to learn more and win your next case, well, you know the book to buy! Win Your Case.

The Idaho Court of Appeals has ruled that a police officer must give Miranda warnings to the driver of a car after finding drugs in the car, when he has been sufficiently treated like he is in custody, and not simply the subject of a traffic stop.  In State v. James, a divided Court held that the appellant was entitled to have been warned under the circumstances presented.  James had been stopped late at night, his car searched (with his consent), and he and his passengers had been removed from the car and frisked.  Officers under such circumstances who ask the magic “who owns the dope” question must first advise the detainees that they have the right to remain silent, per Miranda.

James is not an earth shattering decision, although it is seemingly  inconsistent with the United States Supreme Court decision in Berkemer v. McCarty, 468 U.S. 420 (1984), and the Court’s earlier decision in State v. Medrano, 123 Idaho 114, 844 P.2d 1364 (Ct. App. 1992). In those cases the decisions involved more routine traffic stops.  The test of whether a person is “in custody” is still objective –  “how would a reasonable man in the defendant’s circumstances have understood his situation?”  With the usual traffic stop falling far short of “detention,” defendants have typically not received the protection of Miranda. In Idaho, a traffic stop – involving a brief stop and questioning by the officer – without such warnings, has not been the basis for suppression. The Court here distinguished the facts, finding it looked more like an arrest than a traffic stop. In particular, the deputy threatened to arrest everyone unless someone admitted possession of the drugs. The driver got the message – he confessed to save his friends from arrest.  Judge Perry (dissenting) did not agree that the circumstances added up restraint that was akin to a formal arrest under the totality of the circumstances.  In particular, he did not think the officer’s threat to arrest everyone in the car was enough to elevate the investigative detention into custody. 

So what do we take away from this decision? Miranda warnings are required when the circumstances would cause a person to believe he or she is under arrest, particularly when an officer is treating the situation like an arrest. If you have been taken out of the car, separated from other passengers, frisked, had the dogs called in to search your vehicle and the cops are telling you somebody is going to jail, you probably get that all too famous warning: “you have the right to remain silent….”  Now, will you remain silent?  All too often persons stopped by the police give them all they need to produce a later conviction.  Not every stop will result in Miranda warnings, but this case gives greater clarity as to the circumstances that may lead there.  But what about the typical DUI traffic stop and questioning by the officer?  "Have you been drinking?"  In custody or not?  Likely not if it is the usual sort of case, but James may give us a better argument that statements thereafter are subject to suppression.