How to Prepare for Trial

At the moment I am caught in the rut of methodology.

There are times when I think that there is little more to be brought to the table regarding theism. How many arguments have been stated and re-stated, and chewed to death? Is there anything that hasn’t already been presented six ways to Sunday?

So rather than contribute another blog on “who wrote the Gospels?” (which, *ahem* I have been framing together a blog on for about a week) I figured on taking one last stab on my methodology.

But rather than put it in the form of some theistic argument, I thought to share how it works in life. How it works in the situation we litigants often face when two sides tell completely different stories, and we are all attempting to ferret out what actually happened. When we are looking for truth in a courtroom.

Maybe this is what benefit I can bring to the table—rather than yet another armchair scholar’s opinion on rehashed material.

When do we start preparing for trial? From the first moment we meet our client. We immediately start gauging their mannerisms, their way of speaking, their story. Even their appearance. Everything viewed through the light of how a juror would perceive them.

And at that initial meeting, we begin mentally tearing apart our client’s story. I’ll let you in on a secret—your lawyer doesn’t completely believe you. We know that people lie to professionals. Just like I tell my doctor that I AM eating balanced meals, and I DO exercise regularly, and the doctor looks at my blood pressure with my cholesterol level and doesn’t believe me.

As the client is informing me that she only had 2, maybe 3 beers that night, when her blood alcohol level was .18, I know she is not telling the truth. It is a physical impossibility. (It is well-known that any amount a person claims to have had in alcohol when talking to a lawyer, judge or police person is going to be down played. “Two or three” really means “Four or Five.”)

Part of this is hard, jaded experience. As a young lawyer, I had a client that owed a great deal of child support. I truly believed that this person was incapable of paying more than a nominal sum. The Judge (a friend) pulled me into chambers and warned me that he was throwing my client in jail, with a substantial bond. I begged. I pleaded. I coerced. I did everything I humanly could to get the judge to understand that this person simply did not have the money. I knew where they were living. Heck, I was even doing the case for free to help them out.

All to no avail. The judge (who had seen more cases like this than I had at that point) was unmoved. I still remember being physically angry with the Judge for doing what I thought was a complete injustice.

So my client went to jail. With a substantial bond. And stayed there for less than three hours before coming up with the money.

That was a good lesson for a young lawyer. They had me completely bamboozled. You see that a few dozen (hundred) times, it makes you realize that people are not always honest with their lawyers.

Understand, that is perfectly fine by us. It is THEIR case. If they get caught in a lie, it only hurts them. Just like my lying to my doctor about what I eat does not clog a single one of his arteries. It only hurts me.

That is why, even in the very beginning, we start to gently probe our client. If they drove out of their way for half an hour, why go to that particular store for a common item such as toothpaste? Is a jury going to believe that the person drove that far, simply because the store had Colgate for 25 cents less? (No.) Is the jury going to believe that the person drove that far because their boyfriend works at the store next door, and my client wanted to see if his car was there? (Yes.)

We begin to ask for documents or other evidence that will support our claims. We also may start to gingerly (and sometimes not so gingerly) point out the holes in their story and the lack of believability. Over time, we will need to bring the client into the hard reality that their story may not sell to another person who is not so inclined to believe them.

We see this over and over. The person has put together the facts in their mind prior to coming to an attorney. They have mulled and contemplated, and perhaps shaded a few of the facts. (When preparing a witness for trial, we call it “sanding.” As in “taking the rough edges off.”) They often have tried this story out on a few friends or relatives. And these friends, wanting to support their buddy, say, “Hey--that makes a lot of sense.”

They somewhat expect their attorney to do the same. So they have built up this story, and have more than half-way convinced themselves that it is both true and convincing. Sometimes the initial meeting is their first shock that it isn’t so believable when another person starts to inspect it and probe it.

I know my client is going to be cross-examined. Very likely by a person who is an expert in cross-examining others, and is not their friend. I know that no matter how smart my client may be—unless they are a professional witness, a trial lawyer is cleverer at cross-examining than they are. They won’t fool him or her. Time to prepare them for that.

After we start a suit, we have a period called “discovery.” Exactly as it sounds—we “discover” things about the other side and they “discover” things about us. This includes document requests, exchange of exhibits and witness names, and depositions (testimony under oath) of the parties, and witnesses.

Essentially, I am looking for all the admissible evidence that will either:

1) Bolster my claim; or
2) Harpoon the other side!

But don’t forget—the other side is doing so as well. They, too, are looking for evidence. And we are very accustomed to searching.

“Well…you can look at every item in this office, but you can’t look in this box.” What box is it that I am most inclined to review? Or there is the other extreme (which is equally humorous), “Oh you want the specifications on the 1987 Chevette’s rear brakes? Well, we can’t limit those down, so here are the specifications on ALL the parts of ALL the Chevette’s for a period of five years.” Nothing like getting 50-60 banker’s boxes of documents from the other side to know that there is something within worth finding, but it is buried deep!

“They don’t have a copy of this letter. Don’t worry, it will never come up.” I wish I had kept track of how many times I heard that from a Client (or substitute “witness” or “testimony” or any other piece of evidence) and then surprise, surprise—it comes up!

Or “ask her this question and she will tell the truth.” No. She won’t.

Another pointer—when an attorney asks you a question under cross-examination, they already know the answer. If they don’t, they are not a very good trial lawyer. See, we only ask limited questions on cross-examination. Very specific, very determined. It has been compared to surgery, only cut what is necessary. No more.

While I may not know all the answers, of course, very often either a “yes” or “no” will get the witness in trouble in some way. And I know it. So I ask it.

It is common for my client to demand that I ask questions I don’t know the answer to, in the firm belief the other person will tell the truth. If I can’t verify it—I don’t ask. It looks like this:

“Ask her if she is having an affair.”
“No.”
“Ask her!”
“Look, do you have anything to prove she is? A hotel bill? A picture? A video recently released on YouTube?”
“No, but I think she is. Ask her!”
“Fine. Your funeral.”

“Ma’am, is it true you are currently having an affair?”
“No.”

“Nice job, there. Not only did we gain no new information, but we just proved she is NOT having an affair. Happy?”
“Ask her if she is lying!”

Sigh.

Occasionally, we are left asking a question we do not know the answer to, but only because to NOT ask the question is worse in the eyes of the jury.

I was once questioning an ex-wife that was pretty crazy. Had some very questionable testimony, and I could see that the jury thought she was a crackpot. Nuts. Someone to not be trusted. I got so caught up in my own cleverness, I forgot the basic rule—“Know the answer to the question.”

My client informed me that she had once sued the governor for $1 Million. I had no proof of this. No lawsuit papers. Nothing. But it seemed to fit, and I was doing so well, I blurted it out:

“Ma’am, you once sued the Governor for $1 Million over this matter, true?”
“That is NOT true.”

Uh-oh. What do I do? I had just rehabilitated her as being NOT a crazy person. I could see the jury turning to me with a question in their eyes—“Maybe she is not so bad? Why would you ask such a question?”

I was trying to think up a follow-up question, when the witness kindly helped me out by following up with:

“I sued him for EIGHT Million Dollars. And I sued the Mayor, the sheriff and the local police force, too!”

Saved my bacon, I can tell ya!

Why do I say all this? Because forefront in my mind is that I have an enemy. I have an extremely experienced litigator on the other side that is doing everything in her power to bolster her client’s claim and harpoon my own. If I have a letter that I think is beneficial to my position, I know that it is her desire—no—it is her job to paint that letter in the worst possible light. In the same way, if there is some item that supports her position, it is my job to make that as insignificant as possible.

We get very good at this. Law Schools are taught by the Socratic Method. Where the professor teaches by asking questions in the hope that the students figure out the answer. This results in randomly calling upon students and demanding a response. In my first year of school, the following exchange happened:

Professor: Person A was struck by Person B in an automobile collision and suffered horrible injuries. Student 1, you represent Person A—what would you do?
Student 1: I would sue Person B for negligence.

Professor: Very Good. Student 2, you represent Person B—what do you do?
Student 2: I would counter-sue!
Professor: You would…what?
Student 2: Sure! The way I figure it, it is Person A’s fault for being so injured. Think of the mental anguish Person B will go through—knowing they have injured someone. If Person A was not injured, then Person B would not have all this mental anguish. Therefore I would counter-sue!

That is what we deal with almost everyday. Trying to turn straw (or worse) into gold. What keeps us in check? The fact the other side is trying to do the same as well.

My enemy will provide me with no “gimmies.” I will not be able to put up a single item of evidence that won’t be challenged, questioned and the support for it demanded to be presented.

“Gee, can’t we let this in?” will never fly. Not with the Judge. Not with my opponent. “It sure seems reasonable to me” has no bearing in a trial. No persuasion. What may be reasonable to me could be completely unreasonable to every other person in the court room.

Simply because my client says it will never be enough. We even have a name for that “Believe-Clientitis.” It is where the attorney is so convinced by what their client says that they consider any statement that even remotely counters as preposterous.

“MY client assures me that he would NEVER have said such a thing. And I believe him.”
[Uh-oh. Trouble right there.] “Were you there, Counselor?” (We usually reserve the term “Counselor” for Lawyers we are not very impressed with.)

“No, but I KNOW my client, and he would NEVER have done that.”
“How ‘bout we do a lie detector test—winner take all?”
“What?”
“Yep, that’s right. If your client passes, we fold and go away. If he fails, we get everything we want.”
“Er…well…I don’t think they are very reliable.”
“What are you worried about? If your client couldn’t have done it, then even the most unreliable test will still pass him.”
“No…I don’t think we are interested in that.”
“Look, Counselor. You weren’t there. I wasn’t there. This is why we have trials—to let a jury of independent people make the determination as to what happened. Before either of us gets all wrapped up in whose client is telling the truth on something you and I can’t confirm, let’s try and look at what a jury would say…”

(I have only had one attorney take me up on the lie detector test. But as we were working out the paperwork, his client backed out. Huh.)

With all this in the back of my mind, I start preparing for trial when I first meet my client. I continue every time I touch the file. Every deposition, every meeting, every conference. You know the trite saying as to the three greatest things needed to sell property? “Location, Location, Location.” Well, the three greatest things need to win trials is “Preparation, Preparation, Preparation.”

But what are we preparing for? We are preparing to present our evidence, with the best arguments possible, while another person presents countering evidence, with their best arguments possible, to a jury of people who will determine what they think is the closest we can come to the truth.

In this preparation we cannot ignore the other sides’ evidence. To do so would be both unprepared, and unpersuasive. We cannot ignore the weakness in our own position. If I wouldn’t buy my own argument, there is little likelihood a juror would either. We don’t get to determine what is “important” and what is not. We may try to persuade the jury some things are more important, but to ignore an argument as “unimportant” is to invite disaster.

We can’t become enamored with our own arguments. This creates blind spots in which we think we are brilliant, and other people are not so convinced.

What does any of this have to do with theism?

Because when I first encountered atheists, I realized I had a bad case of “Believe-Clientitis.” I had NOT reviewed the other sides’ evidence. I had NOT taken the likelihood of their arguments being persuasive to a jury.

I had done in my spiritual life what would have been cataclysmic in my professional career. You know those dreams of being in a Final exam, but realizing you haven’t studied? This was like a slap in the face—I was in a trial in which I was completely unprepared.

For the first time, I began to review my own Christianity, just like I would review a case on behalf of a client. Sure, I initially figured that all it would require is a little study; a little discovery, an exchange of exhibits and witnesses, and then Christianity would come out shining again. It was “Truth,” after all, right? Even if my method was not completely reliable, a thing as grand as Truth from a God should easily withstand the test.

It was only as time after time, passage after passage, historical marker after historical marker, philosophical problem after philosophical problem that I realized if I represented Christianity, I would never want my case to go to trial. No matter how prepared, it would not convince the neutral jury of our legal system.

I know people have problems with my methodology. But it is what I do every day. It is how I have watched conflicting positions resolved countless times.

If I had a desire, it would have been for my client to win. I wanted Christianity to come out on top. However, I have that same desire for each of my actual clients. Clients that I know, despite my desire, will not. Clients whose positions do not conform to reality.

Eventually I was faced with the decision of how to tell my own Christianity it would lose?