Playing Survivor in the Courtroom: Dealing with “Worst Case Scenarios”
By Stephen Hayne & Jon Fox
I. Keeping Your Cool When Things Fall Apart.
In every courtroom, from the homey confines of Forks Municipal to the majesty of the Temple of Justice, there are dark and evil goblins lying in wait: Things are going along file when WHAM!—Out-of-the-blue, you get whacked in the face with a big-fat- ugly surprise, one you just didn’t see coming. It can happen any time; a shocked client is hauled off in chains at arraignment, a juror changes her mind during polling after a ‘not guilty’ verdict, a Supreme Court Justice grills you on a case you’ve never heard of.
All three scenarios have happened to us, along with hundreds more over the course of fifty+ years of litigation. And when they happened, we responded with the grace and aplomb of unruffled professionals. Unless, of course, when we stood in shocked silence, foreheads glistening, not a clue what to do next.
Every courtroom encounter holds the danger of such peril; the defense witness dissembling on the stand, the baby-faced copy with a ready, credible explanation for the shameful lie that was going to be the linchpin of your defense, the defendant destroying his credibility by ‘helping’ you on direct, rejection of the one jury instruction critical to your theory of the case. Learning to deal with such unhappy surprises is a challenge faced by all trial lawyers.
Hopefully, our painful experiences; sometimes tragic, often comical, will help you in dealing with your own courtroom demons. After all, such surprises are as much a part of trial practice as whining prosecutors and arrogant judges and, no matter how prepared you may be, no trial plan can account for every contingency.
So how can one prepare for these potentially devestating turns-of-event? One useful model comes from the training of the ultimate handlers of such scenarios: airline pilots. In advanced pilot training, pilots are taught to remain calm in an emergency by simulating it over and over, until the pilot reacts form habit rather than from a conscious thought process. The habit gradually becomes so ingrained that it overrides the natural anxiety looming in any emergency. Then, when the dreaded moment occurs, the pilot’s response is largely automatic, following a ritual imprinted in memory from hours of repetition and avoiding the danger of panic-induced error. The point is, pilots are taught to expect an emergency, then to react to it with pre-programmed behavior, largely freeing them from having to think the problem through.
In trial practice, simulating an unpleasant surprise at a critical moment is harder, but can be done. Just as pilots enter the cockpit prepared for an emergency, we must condition ourselves to enter the courtroom expecting the unpleasant surprise, and must pre-program our response.
The, when the “Oh my Gosh, I-can’t-believe-what-just-happened” incident occurs, we can automatically react with an unruffled demeanor that conveys the message: “Ah Ha! Just as I expected!” or display a casual air of “I knew you’d say that all along”.
The true professional proceeds without an outward hint of distress, taking the sting out of the defeat, denying your opponent the emphasis it deserves.
This ability comes from a conditioned coolness, an imperturbability that only comes with practice. Then, no matter how damaging the surprise is, its impact is minimized by your non-reaction. In smoothly transitioning through the damaging event as though it as just part of your overall plan, the jury will never know that, inside, you are screaming: “OH NO! THAT JUST DESTROYED MY WHOLE CASE!”.
And, once perfected, the technique usually leaves the jury (and your client) oblivious to you incompetence.
So, how do you acquire the habit of keeping your cool under fire? One way is try lots of cases, but even seasoned veterans must practice the “That’s just what I wanted to hear” reaction. Every day social interactions, for instance, are useful in practicing the technique:
Your accountant calls to announce and IRS audit of your return the year you ‘forgot’ to report that big contingency fee. You smile and say: “Hey, it’s a bout time. I’ve been wanting to show them how honest I am for years!”
You teenage daughter introduces her new “Goth” boyfriend, and you cordially ask “Hey dude, where’d you get the cool forehead tattoo?”
The Superior Court has just dismissed your appeal as untimely filed. You respond: “Hmmm...missed the deadline again, eh? Oh well, I’ll give Bob a call and tell him to start serving his year right away. Sooner in sooner out, I always say. May we should give him a going away party.”
Remaining calm and collected, even as the storm rages around (and inside) you is a skill requiring lots of practice before it becomes habitual. But at the critical sink-or-swim moment, it is a skill essential to all advocates.
Jon’s not too distant experience in Seattle Municipal Court serves as a handy example. His client had one of those cases we all dread: just good enough that Jon knew he had to try it if the City refused to offer a Neg One. The City wouldn’t budge off a Reckless, and Jon prepped for trial.
Jon figured his client’s uncanny resemblance to Britney Spears would pretty much guarantee a ‘not guilty’ vote from male jurors, no matter what came out of her mouth. Still, he worked hard preparing her for trial, reminding her over and over to simply to tell the truth, no matter the question. He practiced direct and cross until confident she was ready for her testimonial debut. Of course, the double one-fives posed a problem, but Jon hoped that cross examination of the arresting officer ore breath technician would give him something—anything—to argue in summation.
Surprisingly, things were working out. The prosecution’s case unraveled just enough that Jon seriously considered resting and keeping his client off the stand. There was a credible argument that the arresting officer did not administer the breath test correctly. Problem was, he’d ended up with an all-female jury, neutralizing his ace-in-the-hole. So it was that ‘Britney’ took the stand. All went well on direct and Jon’s confidence in his case grew by the minute. She handled the prosecutor with surprising skill, all the way through the evening, the stop, the field tests and right into the police station.
Finally, the prosecutor inquired about her answers on the “DUI Interview form” and the question: “Do you believe you are over the .08 legal limit?” Honest to a fault, she had answered “Yes.” Jon, of course, had discussed the answer with her and learned that she answered “yes” because she had been told by her dorm advisor that it only took one beer to put you over the limit. Since she now knew it would take much more, she had been prepared to correct the mistake. Unconcerned, Jon was thinking ahead to summation when the following exchange took place:
Prosecutor: “Now, didn’t you tell the officer that you believed your alcohol level was over the legal limit?”
Client: “Yes, I did, but I thought one beer would put me over the new limit.”
Prosecutor: “Well, you’d certainly had more than that, hadn’t you?”
Client: “Yes, I had four the whole night.”
Prosecutor: “And you believed that would put you far over the legal limit, didn’t you?”
Client: “Look I thought it would only take one beer to be over. There’s something wrong with those breath test machines. The officer even gave me a breath test out on the street and it read way over the limit, too!”
The previously suppressed .14 PBT reading was then admitted into evidence as Jon looked for the quickest exit from the courtroom. Between verdict and sentencing Jon gently inquired “By the way, why did you mention that portable breath test result after I told you over and over not to?” She indignantly replied, “Because you also told me over and over, ‘Tell the truth, tell the truth’!”
One of Steve’s many experiences at encountering the unexpected ‘worst case scenario’ occurred many years ago when, as a young, eager but overwhelmed Public Defender, he was desperate for anything that might help camouflage his incompetence. In the early ‘80’s, “dressing for success” was considered an essential weapon in every yuppie’s arsenal. Fashion gurus weighed in with opinions on how various messages were conveyed by apparel: To be taken ‘seriously’: dark blue. For ‘sincerity’: dark brown. To ‘get attention’: bright red. To convey ‘innocence’: white. And, there was almost universal agreement on one particularly compelling message-sender. The bright yellow Power Tie. The theory was that a bright yellow tie communicated: “Take heed, for here is a man to be reckoned with!” Department store displays sprouted yellow ties, and courthouses soon filled with devotees. Not wanting to leave anything to chance, I joined the herd, purchasing a bright silk tie which virtually screamed “Yellow!” and “Power!”. Since I had a particularly tough trial starting the next day, I put the tie to work immediately, confident it was earning its keep with the jury.
Now my client, who was staring some serious time in the face, brought along his large and vocal family for support. Each recess, I tried calming them by explaining that the many setbacks were just temporary. Despite my attempts at keeping the faith, it soon became clear that the State’s evidence had pretty well stomped, beat and kicked the presumption of innocence to a pulp. I tried to remain upbeat, confident my tie was doing its job.
As the trial ground to conclusion, my audience became ever more hostile, convinced their ‘free’ lawyer was just part of the conspiracy to deliver their son-brother-cousin-nephew to the chain gang. Given their attitude, I knew we needed something dramatic to turn the tide: a slam-bang summation!
I lay awake the last night of the trial, planning a grand soliloquy, a captivating oration, a summation truly worthy of my bright yellow power tie.
As the jurors took their seats, my confidence shot up when I noticed the prosecutor sporting, of all things, a green tie, which everybody knows practically yells “I’m a greedy, slimy, lying son-of-a-bitch!” Ha! What a fool!
I impatiently endured the prosecutor’s closing (which personally, I found quite persuasive). The judge called for a brief recess and I fled to the men’s room to avoid my client’s family. I practiced my summation in front of the mirror (which my enemies had strategically placed directly over the urinal).
Struggling to find just the right words for a dramatic beginning, I paced the room. Suddenly, my client burst into the room, shouting:
“Mr. Hayne! You gotta get in here, the judge is waiting!”
Startled, I bent to retrieve my briefcase lying beside the urinal. Searching for the handle, I froze, struck dead by the sight of my Power Tie’s struggle to stay afloat in the bowl. Leaping a foot in the air, I landed to behold a tie that was now half yellow and half black. Tearing it from my neck, I wrung it like a wet sock, rendering it useless as a wrinkled dishrag. Mind racing, I threw it in the sink like an ugly snake, soaking it through and through. Now uniformly black, I frantically squeezed and patted it flat, all as my client approached near hysteria. Admonishing him to calm down as I put it back on, I assured him everything was under control.
Bursting into the courtroom, judge, jury and audience stared at us in disbelief. I barely registered the judge’s next words:
“Ladies and gentlemen, since Mr. Hayne has finally graced us with his presence, you will kindly give him your attention for his closing argument on behalf of the defendant”.
Legs shaking, I walked to the front of the jury box and began.
I have no recollection of what I said. I can only recall the amazed stares of the jurors at my mysterious black tie, and the
Into the growing puddle at my feet.
II. The Other Kind of “Worst Case Scenarios”.
Of course, there is a second kind of “worst case scenario” we all dread: The absolute dog of a case that, for whatever reason, just has to be tried. And despite the fact that it seems hopeless, take heart, for experience has shown that even the absolutely worst cases can occasionally be won. And if you think you’ve had to deal with some bad fact patterns, maybe the samples below (excerpts from actual Seattle Police Department DUI squad reports in cases I tried - and lost) will make your task seem a little easier.
- The suspect was driving head on with my marked police vehicle and did not stop, yield or change lanes. My partner and I activated our spotlights and our overhead emergency equipment. The suspect slowed down and was still creeping southbound headed straight for our marked patrol car. I got out on foot and approached the suspect. I noted the suspect had his pants pulled down around his ankles and had an erection.
- E/O asked _____ for insurance paperwork, she rummaged through a pile of papers, separated an item from the pile, studied it momentarily as if to read it then handed me a lotto ticket.
- Before, during and after testing, defendant kept saying “Nobody’s gonna tell me when I can drink beer. I’m entitled to drink my beer and nobody’s gonna stop me.” He had to be told two separate times during testing to fasten and secure his pants. They fell down countless times. He would not pull them up until officers asked him to.
- Unusual Actions/Statements: “It’s not your problem, it’s mine.” “I’m no fucking butthead!” “I’m a bad boy. I lost, I lost. . . you got me.” “Don’t fuck with me. I’m a dirty white boy.” “Give me a chance, I’m a dirty, super stinking white boy!” “Kick my ass, kick my ass, I can take it!” “I’m a dirty white boy, fucking throw me away!” “Thanks friends, comrades!” “I’m going to hell.”
- Do you have any physical defects?
Yes. Of course, my face looks like shit. I’m ugly.
- The def stated he had to use the restroom so upon arrival, at 0105 hrs., I walked the def from the garage to the restroom.
I uncuffed the def and he entered the bathroom. After a few minutes I did not hear anything so I opened the door and saw that the def was standing in front of the toilet,...and his hands were dripping with water as was his mouth and chin. The def had been drinking from the toilet bowl ...I asked, “what are you doing”. He stated, “No one would give me a drink, what do you want me to do?”...I then walked the def from the restroom to the processing room...and he spit several times on the floor. I told him to stop spitting and he said, “I have to get this bad taste out of my mouth”.
- Do you feel affected or impaired by what you drank?
YES, YES, Y-E-S!
Do you think you should have been driving?
N-O, NO, NO!
- Ofc Hayes advised he had the vehicle stopped in the 2400blk W Dravus. I arrived and saw that the Def, ...sitting behind the wheel of the car.
...contacted the def. And he told me, “I’m drunk driving officer”.