Monday, September 29, 2008

Are We Picking on the Little Kid?

The most frustrating and patience-testing trials are those with new lawyers. Inexperienced trial lawyers. (We all had to try our first case. And most of us look back, cringing, and shove that memory as far out of our mind as possible.)

Since they do not know any better, they perform three errors:

1) First they object to every proposed exhibit. You would think, after it has taken me 20 minutes just to introduce 10 letters, and on each one the other side objects, and on each one I establish a foundation, and on each one the judge lets it in—by the 11th letter you think they would get it. Nope.

Me: I move for the admission of Plaintiff’s Exhibit 11.
Them: Objection!
Judge, clerk, court reporter, jury and court officer—Sigh…

2) Because they don’t know where to stand, sit, walk, etc. they unwittingly mimic the more experienced attorney. If the other attorney uses the podium to ask questions--they use the podium to ask questions. If the attorney uses PowerPoint (c)—they try to figure out PowerPoint (c).

A prosecutor told me of a case where the defendant represented himself. The prosecutor noted this mimicking, and whenever the prosecutor stood; the defendant stood. Where the prosecutor walked; the defendant walked. The prosecutor was also aware the defendant had significant body odor. For the closing argument, the prosecutor stood 2 feet in front of the jury box. Sure enough—the defendant did as well! The prosecutor said you could see the front row rearing back, attempting to avoid the smell.

3) Throughout this bumbling, they treat this trial as if it was the Scopes Monkey Trial, the Dover Case, the Murder case against O.J. Simpson and the McDonald’s coffee case all wrapped up in one. When one witness is sufficient—they bring twelve. When one question would do—they ask questions for an hour. Incompetently. Frustratingly. Infuriatingly to the judge and opposing counsel.

What is most surprising about this--is how often they win! There is a sympathetic factor. To many juries, it seems that mean ol’ judge is picking on them for not allowing in this certain exhibit. (An exhibit an experienced trial lawyer would NEVER try to introduce, since it was clearly barred by the Rules of Evidence.)

The experienced lawyer seems too polished. Too certain. Too dismissive of the bumbling, stumbling young person.

One has to learn how to delicately demonstrate the other side is wrong, without offending the sensibilities of the jury.

I wonder how Senator Biden will be able to do this in his debate with Governor Palin.

We have now seen the interviews of Governor Palin. She is terrible. There is no other word. Read the transcripts of her response to the bail-out and explain what she was talking about. She continues to defend the fact she is Governor of a State close to Russia as giving her qualifications for making foreign policy!

Governor Palin appeals to the “average U.S. citizen”—because that is exactly what she is: an average citizen. She is the “someday even you can be President.” She is the ideal we think of in the Hollywood, “Gosh, I’m going to make a difference in this world” and goes from housewife to Vice-President in 1 hour and 45 minutes. Disney (c) has repeated the theme so many times from so many demographics, I think the only thing left is making an iguana the President within the requisite time frame!

As Americans we have an interesting sympathy with the underdog. With the concept of some unheard of boy walking on to the football team without an invitation or scholarship, and becoming the Heisman Trophy Winner. When I was working at a restaurant, the new waiters and waitresses had to wear a big ribbon with the word “TRAINEE” on their name-tag. They loved that ribbon. Because they could get away with more mistakes and got much larger tips. Customers had sympathy, because they were a “TRAINEE.” Once that tag came off it was, “Waiter, where is my food and be snappy about it!”

(Curiously, one place we do NOT grant such charity is for referees at weekend soccer games. Believe me I know! Our organization can’t get people to referee because of the parent’s catcalls upon a mistaken call. [Which will happen—referees are human.] Try telling a group of soccer parents, “Cut me a break, I am training at refereeing” and they would burn you in effigy. At least you hope in effigy…)

I am eagerly looking forward to the Vice-Presidential Nominee Debate to see how Senator Biden handles this phenomenon. How can he point out the sheer stupidity of responses made by Gov. Palin, without looking like he is picking on the little guy? How can he debate and discuss without appearing mocking and rude? How can he get around the sympathy factor?

If it was me (and no one is coming to me for campaign advice) I would get the elephant out of the room immediately. The first baffling answer she gave, I would state something like this:

“That answer did not make any sense. Look, Governor Palin should be commended for her rising political career. But this is a national position that requires knowledge and specific resolutions. Not talking points. Not broad, incomprehensible statements.

1 comment:

  1. I think you're right on. I think what we're seeing with Palin in the Couric interview is exactly what her debate opponents have seen for a while. She gives non-answers. I think you're suggestion is wise, but then I wonder if the words you put in the mouth of Biden are going to create the very pity you want to avoid. Can he say what you suggest in an even softer way? I'm not sure. It's kind of lose, lose. I wonder if he should completely ignore what she says and just let others draw the conclusion that what she's saying is incomprehensible and she is unfit for the job.