Category Archives: Legal profession

How to Win (and lose) a Trial

I was in trial recently and it’s always helpful for me to write down a few thoughts for future reference. Below are some random musings on how to win or lose a trial.

  1. There is a wart or booger in every case – the bad fact or law that is driving the case to trial. Instead of running away from weaknesses in a dispute, a good trial attorney will directly confront the wart/booger and strategically figure out a way to mitigate its impact. This requires a solid relationship between an attorney and his client. If the client doesn’t trust her attorney, they will revert to their natural inclination to avoid or deny weaknesses in their case. A witness that admits they were wrong in one instance, gains credibility for when they say the booger in their case doesn’t really matter. In contrast, a party that simply ignores or denies the other sides argument will come across as unbelievable, ignorant and selfish.
  2. Controlling the narrative of the case is critical. If a case goes to trial it’s because two or more sides disagree about the key facts and law involved. Each side has a story to tell. Whatever party controls the narrative is more likely to win. If a trial lawyer is able to dictate the issues discussed during trial, it steers the focus away from the wart or booger referenced above. Thinking deeply about the a compelling theme and clearly articulating a party’s story is fundamental in controlling the narrative.
  3. Technology matters. I now use an iPad in every trial or hearing. The TrialPad app has revolutionized how evidence is presented. Using an Apple TV, I wirelessly linked into the court’s audio/video system. It’s a slick setup. With TrialPad, I’m able to blow up documents, highlight key sections, and compare documents side by side. It is engaging, quick and easy. During this most recent trial, the opposing attorney dropped his exhibit notebook twice. Papers went flying everywhere, he exclaimed, “Shit!” which likely made it onto the record, and it was cumbersome for everyone to switch back and forth between paper exhibits. People today expect videos, charts and professional presentations.
  4. Organizing the closing argument first drives everything else. As a DA, I learned the importance of thinking about what I wanted to say in my closing argument and then working backwards. I typically create a basic slideshow (PowerPoint or Keynote) with the applicable law and key evidentiary points.  This process is intertwined with developing a theme and narrative for the case. The evidence I want to bring in – whether it be on direct or cross examination – is driven by my closing argument. My opening statement and theme are driven by my closing argument. Everything is driven by the closing argument. There’s no point in asking a question or introducing a document if it doesn’t support a point made in closing.
  5. Researching legal issues in advance is necessary. The best evidence in a case is usually derived from the other side. Especially for trials to a judge, knowing the applicable law cold is essential. In my recent trial it was evident that the opposing attorney hadn’t done his homework. His client admitted to a number of key things on cross-examination  without understanding the implications. Only after my closing argument did opposing counsel and his client appreciate the significance of a seemingly innocuous admission on cross.
  6. Checklists are helpful. An issue in this trial was attorneys fees. In a divorce, a party may be awarded all or part of their attorneys fees from the other party under C.R.S. 14-10-119. There are necessary elements that must be proved to obtain an award of fees. We were at the end of the trial, everyone was tired, and the opposing Aspen lawyer made a critical mistake – he forgot to ask his client how much fees were owed. Realizing his mistake after he rested his case, the lawyer pleaded for the court to allow him to ask a few more questions. The court allowed him to do so, but stated he was only considering it for a limited purpose. It remains to be seen whether the Aspen attorney made a $50,000+ mistake, but a checklist for what evidence was needed would have likely prevented such a gross oversight.

The above is obviously not an exhaustive list of what it takes to win or lose a trial; each case warrants special consideration. The bottom-line is that trials require a lot of thought and preparation. If a lawyer or party thinks they can “wing it,” they’ll likely be in store for an unpleasant surprise.

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Judge Moorhead Retires

The Vail Daily has a profile on retiring Judge Tom Moorhead. I will be forever  grateful to him for taking my phone call when confronted with a significant career decision. He walked me through the pros and cons of each scenario, and guided me to the right decision.  There is no doubt he’ll be an effective and highly-sought mediator at JAG.

Additional Judge for both the 5th and 9th JDs

Yesterday, Chief Judge for the Ninth Judicial District, James Boyd, sent out an email to a number of attorneys announcing that Governor Hickenlooper signed the legislative bill adding a judge to the 9th J.D. last Friday, March 8. The same bill adds a judge for the 5th J.D. as well. I wrote about the proposal earlier in January here.

The Colorado House of Representatives voted 60-2 in favor of the bill, and it passed unanimously in the Colorado Senate. The current caseload for judges in these two judicial districts is simply overwhelming. Relief cannot come soon enough. Judge Boyd indicated that the new position would start around July of this summer. A public notice inviting applications will go out this week.

It will be interesting to see who throws their hat in the ring. Martin Beeson is expected to be a candidate in the 9th J.D. In the 5th J.D., it’ll depend on whether Dana Christiansen will apply. He’s in charge of the Public Defender’s Office for the 5th and was a finalist when Karen Romeo was appointed by former-prosecutor and then-Governor Bill Ritter.

One Bad Act

There’s a great article in today’s Sunday NY Times about Ivan Fisher, a prominent NY criminal defense attorney who has found himself in some ethical hot waters. By all accounts, Fisher is a gifted trial attorney. His honesty, however, has recently been called into question. The story offers a lesson for any attorney: reputation and trust is everything and a lifetime’s body of work can be undone with even a single misstep.

The lesson from Fisher’s case is especially true for a criminal defense attorney practicing in the Central Rockies like Aspen, Glenwood Springs, and Vail. Trust is everything. If the prosecutor doesn’t respect or, more importantly, trust a particular criminal defense attorney, it can change the dynamic of plea bargaining drastically. It’s a small community and there’s a lot of repeat business between attorneys. Screw up once and you’ll be cast among the lot of the Fishers of the legal world.

A touching “Dear Santa” story

I received the below from a colleague. It is gold for litigators.

Dear Santa, How are you? How is Mrs. Claus? I hope everyone, from the reindeer to the elves, is fine. I have been a very good boy this year. I would like an X – Box 360 with Call of Duty IV and an iPhone 4 for Christmas. I hope you remember that come Christmas Day. Merry Christmas, Timmy Jones

 

Dear Timmy, Thank you for your letter. Mrs. Claus, the reindeer and the elves are all fine and thank you for asking about them. Santa is a little worried all the time you spend playing video games and texting. Santa wouldn’t want you to get fat. Since you have indeed been a good boy, I think I’ll bring you something you can go outside and play with.* Merry Christmas,* Santa Claus

 

Mr. Claus, Seeing that I have fulfilled the “naughty vs. Nice” contract, set by you I might add, I feel confident that you can see your way clear to granting me what I have asked for. I certainly wouldn’t want to turn this joyous season into one of litigation. Also, don’t you think that a jibe at my weight coming from an overweight man who goes out once a year is a bit trite? Respectfully, Tim Jones

 

Mr. Jones, While I have acknowledged you have met the “nice” criteria, need I remind you that your Christmas list is a request and in no way is it a guarantee of services provided. Should you wish to pursue legal action, well that is your right. Please know, however, that my attorney’s have been on retainer ever since the Burgermeister Meisterburger incident and will be more than happy to take you on in open court. Additionally, the exercise I alluded to will not only improve your health, but also improve your social skills and potentially help clear up a complexion that looks like the bottom of the Burger King fry bin most days. Very Truly Yours, S Claus

 

Now look here Fat Man, I told you what I want and I expect you to bring it. I was attempting to be polite about this but you brought my looks and my friends into this. Now you just be disrespecting me. I’m about to tweet my boys and we’re gonna be waiting for your fat ass and I’m taking my game console, my game, my phone, and whatever else I want. WHAT EVER I WANT, MAN! T – Bone

 

Listen Pizza Face, Seriously??? You think a dude that breaks into every house in the world on one night and never gets caught sweats a skinny G – banger wannabe? “He sees you when you’re sleeping; He knows when you’re awake”. Sound familiar, genius? You know what kind of resources I have at my disposal. I got your shit wired, Jack. I go all around the world and see ways to hurt people that if I described them right now, you’d throw up your Totino’s pizza roll all over the carpet of your mom’s basement. You’re not getting what you asked for, but I’m still stopping by your crib to stomp a mud hole in your ass and then walk it dry. Chew on that, Petunia. S Clizzy

 

Dear Santa, Bring me whatever you see fit. I’ll appreciate anything. Timmy

 

Timmy, That’s what I thought you little bastard. Santa