SEE YOU IN COURT
Things Lawyers Know About Trials That YOU Should Too.
A
LAYMAN’S GUIDE TO THE COURTROOM
BY
BARRY S. WILLDORF
Attorney
at Law
Copyright 2012 Barry S. Willdorf
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SEE YOU IN COURT!
(Things Lawyers Know About Trials That YOU Should Too.)
A LAYMAN’S GUIDE TO THE COURTROOM
COPYRIGHT © 2012
COVER ILLUSTRATION AND DESIGN BY BARRY S. WILLDORF © 2012
All rights reserved. No part of this book may be reproduced or transmitted in any form without written permission from the publisher, except by a reviewer who may quote brief passages for review purposes. If you are reading this book in an electronic format and did not purchase it or win it in a sanctioned contest, you have obtained this book illegally. Illegal copies hurt both the author and the publisher. Please delete this book immediately and purchase it from an authorized seller: i.e. the publisher, A Gauche Press, or through an authorized distributor.
Every day, trials impact the lives of untold numbers of citizens. But the public has only popular images and urban myths to give it an idea of what goes on in a trial. There has been no handy, easy-to-read reference book that explains trial strategy, tactics and the process to non-lawyers — until now. See You In Court fills this void.
ACCLAIM FOR SEE YOU IN COURT
Hear Ye, Hear Ye, All Rise and go immediately to a local bookstore
(or computer terminal) to read “See You in Court” by Barry
Willdorf, before you actually have to be in court. Willdorf is a real
find: a seasoned, first-rate trial lawyer, who writes in accessible
English rather than legalese. His book is a wonderful primer, filled
with anecdotes and insights about a system you only think you know.
It will make every legal thriller, movie, TV and news report all the
more interesting, once you know the inside story. As a bonus, it is
not only fun to read, it can literally save you hundreds or even
thousands of dollars by answering questions you would otherwise have
to ask your own lawyer, while the billable-hour clock runs. Danny
Greenberg is former President and Attorney-in-Chief of The Legal Aid
Society of New York. He was formerly Director of Clinical Programs at
Harvard Law School.
This is an outstanding book. It gives the reader a good picture of
how lawsuits proceed in the real world of lawyers and courts. Anyone
interested in litigation as a party, witness or observer should read
this book if they want to understand the process. Peter C.
Carstensen, George H. Young-Bascom Professor of Law, University of
Wisconsin Law School
It’s the rare hermit who can make it through life in America these
days without ending up as a juror, witness or party to a lawsuit or
criminal trial. In See You In Court!, Barry Willdorf, after
decades in the legal trenches, has written the essential primer on
everything people need to know to understand and survive the
tribulations of trials in our litigious society. From explaining the
roles played by judges, lawyers, investigators, experts, jurors, and
clerks to the basics of evidence, opening statements, witnesses,
cross examination, jury instructions, closing arguments and verdicts,
Willdorf illuminates it all in an engaging and entertaining style
that painlessly demystifying the system and helps dispel various
myths and misunderstandings that have undermined confidence in our
courts.” Stephen Rohde, author of /American Words of Freedom/
and /Freedom of Assembly / past President of both the ACLU of
Southern California and the Beverly Hills Bar Association and a
founder of Interfaith Communities United for Justice and Peace.
Barry’s book does what all good lawyers should do: make the law accessible to laypersons. Even when you have a good attorney at your side, it is easy to be overwhelmed when dealing with the legal system, and that is especially true for people with disabilities, including HIV/AIDS. With Barry’s lifetime of commitment to representing the underdog, he shows that he has the wit and wisdom-and the heart- to help folks during some of their most vulnerable periods.” Bill Hersch, Executive Director of San Francisco’s AIDS LEGAL REFERRAL PANEL.
DISCLAIMER
The purpose of this book is to help the layman navigate the courtroom experience—to understand what is going on. It is neither designed nor intended to be a substitute for professional representation by a licensed attorney. This is not a “self-help” book in the traditional sense. Every case is unique and only a skilled, experienced attorney can put the pieces of the puzzle together in a way that can spell success. Please do not use this book as an alternative to engaging competent legal counsel to represent you. See You In Court is designed to help you understand what is going on in the courtroom, not to do it yourself.
Barry
DEDICATION
To Eileen McAlister, who became a dear friend to me very late in her life. I am sorry I hadn’t met her sooner and even sorrier that she passed away so quickly. I miss our talks, our lunches and the books she always sent my way.
ACKNOWLEDGMENTS
I began this book in 2008, while on the mend from a stem cell transplant that would hopefully cure me of leukemia. By that time, I had given up most of my law practice and, except for one case that threatened to compete with Bleak House for an example of legal longevity, considered myself retired. I had vetted a draft with readers and want to acknowledge them now. Thank you Iris Bachman, Jane St. John, Chris McNair, Carl Offner and Jane Norling. I had a great literary agent, Krista Goering. I was working on blurbs, recommendations and all the other elements of a formal proposal for a publisher when fate intervened and I relapsed. But it was not simply a relapse; my leukemia returned in a more aggressive form and was threatening to snuff me in six or seven months.
The reason I’m still here and you are reading the words on this page has to do with some of the best medical minds in the world: Drs. David Miklos, Steven Coutre and Aaron Logan, plus some wonderful PAs and nurses at Stanford who are too numerous to mention here. But beyond them is Jennifer King, my donor for both stem cell transplants. While I will be forever grateful to Jennifer for her first donation, it was her second that was above and beyond the call of duty. Not only did she agree to undergo the discomfort and inconvenience of this second procedure, she willingly delayed her plan to become pregnant so that she could do it. Today she and her husband Nate have a beautiful baby, Jacob, who is at least a month younger than he should be because of Jennifer’s gift to me. Whenever you are down on the state of the world or the people who inhabit it, spare a minute to remind yourself that there are people like her.
I was a trial lawyer for more than forty years and I am glad that I got the opportunities that the law provided. The law gave me the opportunity to break bread with farmworkers in their shacks and to dine in exclusive clubs with the 1-percenters. I was able to witness the devastating effects of poverty on the self-esteem and spirit of the poor and the corrupting influences and loss of empathy caused by excessive wealth. I got to defend active duty soldiers and veterans of the Vietnam War. I was able to set standards for the economic value of the loss of a homemaker to a family. I was privileged to help protect the rights and benefits of HIV positive workers. I was able to innovate strategies that helped hold abusive corporate officers personally accountable for their conduct and I got to recover money for large numbers of average people from swindlers of all stripes. So I must acknowledge the law for making those experiences possible.
During my years of practice I got to meet both stars (who need no mention here) and “ought-to-be” stars who fought (and continue to fight) it out in the trenches, without much notice or recognition but none-the-less with as much skill as any lawyer who has become a household name. I want to mention some of them here because without having known and worked with them, I would be in no position to write this book. First, I want to single out my long-time partner and lifetime friend, Laura Stevens. Then let me thank, in no particular order, some other lawyers who taught me things I have used ever since I first met with them: Bill Osterhoudt, Alex Reisman, Marvin Rous, Norm Zilber, George Dirkes, Alan Bonaparte, John McClintock, Ann Moorman, Michele McGill, Jim McAlister, Tim Coulter, Steve Tullberg, Ken Cloke, Danny Greenberg, Barry Goldstein, Judge Gus Reichbach. I also want to thank a couple of other lawyers who have come to my aid especially in my times of need: Perry Irvine and Aram Antaramian.
Then there are my writing buddies who have contributed to my education as an author. Without their help and encouragement over the years this book would likely be unreadable. Thanks to Jonah Raskin, Ransom Stephens, James Warner, Tamim Ansary, Holly Shumas, Darrend Brown, Stan Goldberg, Frances Lefkowitz and Yanina Gotsulsky.
Finally, last but by no means least, a special shout-out to my wife Bonnie who has been at my side and in my corner 24/7 for the entire time I’ve been a lawyer. Without her, I would be long dead by now.
OUTLINE
ONE: THE DIFFERENCE BETWEEN CRIMINAL AND CIVIL CASES?
1) The Constitutional Distinctions Between Criminal and Civil Cases
2) Indictments and Preliminary Hearings in Criminal Cases
3) Motions to Throw Out a Civil Case
TWO: WHAT YOU SHOULD KNOW ABOUT THE PLAYERS.
a) Some Tactics Lawyers Use To Get A Favorable Judge
b) Is The Lawyer In Court The One In Control Of The Decisions Being Made?
c) How The Average Joe Ends Up With a Celebrity Lawyer.
a) The Corporate Representative
b) The Client Who Isn’t Really
a) Who Gets On A Jury, Who Gets Off
b) How We Ended Up With A Jury System
1) Where Will The Game Be Played?
2) Legally Required Exchanges Of Information Before Trial
FIVE: TRIAL — THE OPENING SALVOS.
2) Preliminary jury instructions
SIX: TRIAL — PUTTING IN THE EVIDENCE.
1) Accommodations for witnesses
3) Showing and Telling Using Evidence
4) The Judge at Trial as the Referee of the Evidence
6) All they had was circumstantial evidence and I still got convicted!
SEVEN: TRIAL — QUESTIONING THE WITNESSES DURING TRIAL.
1) The Rules For Examining Witnesses
4) The Ball’s In Your Court Again
5) The Different Kinds of Witnesses
6) How to Judge Whether an Examination is Any Good
EIGHT: SUMMING UP (Three examples by famous lawyers.)
NINE: TELLING THE JURY THE LAW, THEIR DELIBERATIONS AND VERDICT.
4) Judgments in Non-Jury Trials
TEN: AFTER TRIAL — NO SMALL DETAILS.
1) Sentencing in Criminal Cases
2) What the Winner has to do to Collect in a Civil Case
3) “We’re Confident We’ll Be Vindicated On Appeal”
SEE YOU IN COURT!
(Things Lawyers Know About Trials That YOU Should Too.)
A LAYMAN’S GUIDE TO THE COURTROOM
Is there a trial in your future? Do you have a case and want to know what to expect if you decide to go to trial, instead of settling? Do you have questions about trials but don’t want to sound dumb? Perhaps you just got your jury notice and want a quick heads up on what goes on behind the scenes. Or maybe it is just that there is a trial you are interested in following — a celebrity charged with murder or an athlete being tried for steroid abuse? You have this urge to form some opinions — to know what you are talking about. And once you get into that courtroom, are you concerned that you won’t really understand what is going on? If for any reason, you are interested in trials and want to know more about how they work, then this book is for you.
A limited knowledge of trials is nothing to be ashamed of. You are not alone. A while back, I was watching Lie to Me, at the time, a very popular and engaging show on television. Two actors, portraying lawyers were having the kind of argument we image lawyers frequently get into with one another. One was a district attorney and the other was a criminal defense attorney. The DA offered a plea deal that the defense attorney rejected. Angrily, the DA pointed an accusatory figure at the defense attorney and threatened: “I’ll see you at the Grand Jury.”
Later in this book, I will explain in detail the absurdity of that threat. For now, you should know that grand jury proceedings are secret. There isn’t even a judge present when grand juries do what they do, much less a defense attorney. Obviously, the writers of this TV production didn’t know what they were talking about and didn’t bother to find out. But what they wrote was more than just ignorant; it was misinformation. I couldn’t help but cringe when I heard it, wondering how many of my fellow citizens now misunderstood what a grand jury was and were ready to believe that it was something like a trial. After all, you’ve got your word “grand” which implies a big deal, and you’ve got your word “jury.”
Many of us hear things like that during our favorite TV shows, movies, or in print media and assume that the authors know what they are talking about. We get a lot of our information and form many opinions based upon such fictitious narratives. But as a general matter, the entertainment industry spices their portraits of trials with myth and misinformation. This short TV dialogue then illustrated a much larger problem and it is the subject of this book.
I have been a trial lawyer for forty years. I have well over 100 trials under my belt and have consulted with thousands. From the questions I have fielded during my career one thing that repeatedly impressed me is how little my clients really knew about trials. Most of their impressions about court came from TV shows like Law and Order, The Practice, or if you are of a certain age, Perry Mason or from movies like A Civil Action, Erin Brockovich, The Verdict and Twelve Angry Men. I couldn’t help being concerned, knowing how little their cases were likely to resemble those portrayals and how difficult it would be to meet the expectations created by popular culture, should they end up in court. I could have spent many hours of my time and a great deal of my clients’ money teaching them about trials, debunking their opinions and pointing out that the popular representations of trials contained lots of inaccuracies, but doing that never made sense.
I can’t recall how many times I wished that there was a short, easy-to-read book that I could recommend to answer their questions about what a trial experience would be like for them. We consult guidebooks when we travel, shop for a home, select a college or university, even when we diet. Having a lawsuit can be just as important. Why, I asked myself, wasn’t there a book that could do for my clients what, let’s say Dr. Atkins did for dieters? I decided I’d have to write it and let the public in on some of the things that lawyers know about trials that they should know too.
* * * * *
If you are anything like the many clients I’ve had or the jurors and witnesses I’ve interviewed during my career you probably hold one or more of the following opinions:
• Juries routinely award too much money.
• Anyone who brings a suit is just greedy.
• Judges are too lenient.
• There is too much litigation.
• Lawyers bring lawsuits because they are greedy.
• Punitive damages are not fair and only make lawyers rich.
• Lawyers teach their clients how to lie.
• The defendant wouldn’t be on trial if he hadn’t done something wrong.
• The police never lie.
• The police always lie.
• Rich people always win in court.
Such opinions (I call them myths) are unhelpful because they skew expectations in the case— and they certainly create obstacles when attempting to persuade clients or jurors.
I once had a client who was a wealthy bank officer. He was charged with embezzling. He ordered me to “find a loophole.” He assured me that he knew there was a loophole built into the law for every crime and that all good lawyers knew where to find them, provided they were paid enough money. He asked flat out how much the loophole would cost him. He thought I was merely being coy and bargaining when I said he was mistaken and that just because lawyers spoke a strange language, didn’t mean they were like witch doctors.
This client was not alone in holding such opinions. Lots of wealthy CEOs, famous athletes, celebrities and politicians behave as if they are above the law and have the expectation that they can simply buy themselves out of trouble. While some are able to, many of them are now doing time, as happened with Bernard Ebbers, the CEO of WorldCom, music producer Phil Spector, pro quarterback, Michael Vick and with my bank officer.
Even judges can lug the baggage of such myths into the courtroom with them. (For example, some judges simply do not believe that the police ever lie.) These opinions are deeply held and a trial is not the place to change people’s minds about their long-standing beliefs. The goal of lawyers during a trial is to identify the myths and where the myths work against the client, to persuade the judge and jury that you (if you are a party to the case) should be an exception.
This is not as easy as it sounds. Seeing things differently is part of the human condition. Though we fling about expressions such as “slam dunk” and “open and shut case,” there are no guarantees a judge or jury will see facts the same way you do. And there are no protections against the unforeseen or the unimaginable. Things tend to crop up in trials that were unimagined before that “day in court” and when that happens, the best-prepared case can go down the drain. That’s when the public begins to wonder whether trials are really fair or whether the fix was in. Sometimes these events lead to riots such as in the Rodney King case where innocent people were attacked by a mob outraged by a verdict in favor of some LA police. The basic truth about trials is that they are as imperfect as the people who are involved in them. They are unpredictable in the same way that life is unpredictable. The best planning can be foiled by unforeseen circumstances.
All trials have elements of uncertainty, and uncertainty is a risk most sane people prefer to avoid. That is why most lawsuits settle before trial. Most criminal defendants plead guilty to something before trial. [1]
Still, despite the fear of uncertainty, plenty of cases do end up in court. The reasons usually are:
• Policy concerns: Some government entities and corporations won’t settle certain types of cases. They rely on risk analysis and are prepared to lose once in a while.
• Stubbornness: Whether due to anger, principle or spite, some people cannot conceive of a beneficial compromise with their adversaries.
• Unrealistic expectations: Sometimes people think their case is so good that there is no chance of losing or getting dinged with a big verdict.
• Someone has nothing to lose: Where a DA is demanding the death
penalty a defendant has nothing to lose. Where a party in a case
offers no money to settle, a plaintiff has little or nothing to lose.
But the underdog forced into a trial does sometimes win and when that happens, there are usually two simple reasons — good lawyering and good luck. As to the good lawyering part, I am often reminded of a story about Abraham Lincoln.
Long ago, when he was a young, successful trial lawyer in Illinois, Lincoln went to court one morning to defend a railroad against a worker who was injured on the job. Lincoln won. That afternoon, he went to court, this time to sue a different railroad on behalf of an injured worker on the same legal principles as that morning’s case. When the afternoon case began, the judge asked him: “Mr. Lincoln, how can you possibly expect to win this case when only this morning you argued so eloquently and persuasively for the exact opposite result?” Lincoln smiled up at the judge and said, “Your Honor, I expect to win this case this afternoon because this afternoon, the worker has a better lawyer.” And indeed, he did win it.
Successful trial lawyers win cases because they are good at creating what I call a “my client is ‘us,’ while my opponent’s client is ‘them.’” story. Sometimes in the midst of a trial, a client leans over and asks me “What’s going on?” I explain that we’re fighting over who gets to be “us” versus who is stuck with being “them.” What I mean is whether the judge or jury will relate to my client or the other guy. If you are a client in a case, you want to create a bond between yourself and the judge and jury. You want them to see the facts through your eyes — to walk the walk in your shoes. And that’s what your lawyer should be working to accomplish for you. The side that succeeds in best convincing the judge or jury that its client is the “us” and the other guy is a “them” more often than not wins.
It may not be evident in the minutia of the evidence or the hocus pocus legalese we lawyers tend to spout, but what good lawyers want to make happen is to have the judge and jury see the facts the way their clients saw them. Every tactic and strategy that you will learn about later on in this book is merely a tool lawyers use to further that mission. Let me give you an example from personal experience of what I mean by an “us” versus “them” narrative.
Some years ago, I represented an eighty-five year-old African-American gentleman who owned a small moving company. He’d been injured when a wayward bus crushed his truck. Everyone agreed the bus driver had been negligent. The dispute was over the amount of damages that the accident had caused my client. The attorney for the insurance company that defended the bus driver didn’t think that an eighty-five year-old African-American was worth all that much. It was a big mistake. Even at his advanced age, my client was a vigorous and powerful fellow and there was plenty of evidence that he pitched in with the heavy lifting on the job.
When the trial began, I set about selecting jurors who were, according to the generally accepted wisdom, likely to be conservative and reputedly stingy. I was permitted to ask questions about jurors’ hobbies. I allowed a bowler to remain on the jury despite other reasons that would have justified throwing him off. I went against the grain and allowed a pair of elderly Asians to stay on the jury, even though jury experts had models showing the categories of age and Asian tend to lean toward low verdicts. I also allowed a very religious juror to remain on the jury despite the “judge not lest ye be judged” ethic many religious jurors bring with them in deliberation. The insurance defense counsel was delighted with all this and was feeling pretty smug that he had picked a jury that would be sympathetic to his case.
The evidence came in. Yes, my client was in his mid-eighties but intended to work for many more years. The defense lawyer, in his arrogance began to cynically question my client’s credibility on this claim and walked into a trap. In rebuttal my client explained that his grandmother had been born a slave and had worked as a menial until her mid-nineties.
I called my client’s pastor who testified that before the accident my client came to church early every Sunday morning and moved the pews, which were quite heavy, but that since the accident he’d been unable to do this volunteer work for the church. The clergyman added that he had observed my client’s anguish over this inability. I called a member of my client’s bowling team and asked him about a series of trophies my client had won before the accident. We discussed the trophies that I had on display. Then he testified that after the accident, my client had to quit the team because the pain made it impossible for him to bowl.
When the time came for me to make my closing argument, I looked directly at my elderly Asian jurors and spoke about respect for elders and how that value was unfortunately fading away from the American cultural landscape. I argued that age did not diminish the value of work or the person who was doing that work. I said that work and dignity and longevity went hand-in-hand. Next, I looked the Christian in the eye and spoke about the pain that can be felt and the pleasure lost when one is deprived of the opportunity to perform good works. Then I moved in front of the bowler. “You can know the truth of a matter when someone must give up a hobby that he loves,” I said. I read the inscriptions on the trophies and asserted, “You cannot achieve these things with a bad back.” A different group of jurors might have required a different closing argument, but what I said was the right argument for this jury. In every respect, I’d given them a reason to relate to my client. I made him an “us” while the other side had willingly painted itself into the “them” corner. The jury awarded much more money than I expected.
A better-known example of how a defense team effectively flipped the “us” versus “them” narrative happened in the O.J. Simpson murder trial. The state in that case certainly had a lot going for them. A victim was female and the alleged perpetrator was male. The victims were white and OJ, of course, is black. It looked a lot like an enraged husband caught his wife two-timing him and killed the pair — a common scenario.
Yet the Simpson defense team surmounted these huge hurdles. First, in a place where blacks were only a small minority of the population they managed to pick a jury that included nine African Americans, mostly women. Then they showed that the police had fudged the evidence and that detective Mark Fuhrman, the chief investigating officer was a perjurer.
Most citizens can imagine becoming the helpless victim of government run amok. Getting framed by unscrupulous yet powerful forces is a Kafkaesque nightmare — the stuff of popular noir fiction and it evokes primal fears in all of us. When the defense team proved the police lied, they unleashed this dread and transformed OJ from a “them” into an “us,” a hapless victim of government abuse. The jury forgot about murders and re-directed their anger from OJ to the cops who falsified evidence and lied on the stand — resulting Simpson’s controversial acquittal.
As we move on to discuss the various parts of a trial, keep in mind how a lawyer may want to use each part of the trial process to further an “us” versus “them” trial strategy while always remembering that there are no guarantees how a fact-finder, whether judge or juror, will interpret any evidence.
But before we get into the nuts and bolts of the courtroom conflict I want to sound a few notes of caution. From time to time, I draw on celebrity and notorious trials in this book for examples. I do this because they are parts of our common culture and the facts will be familiar to many readers. I also use examples from celebrity trials because they often exemplify some fine legal work, undiluted by the mundane concerns of most lawyers, who labor in anonymity and with limited resources. Bear in mind that in many respects the celebrity trial is not typical. In a celebrity trial, the rich client is paying top dollar, and for that he or she can buy the 100% attention of the big-name lawyer plus a whole army of assistants, from investigators to expert witnesses to consultants.
In a run-of-the-mill case, the lawyers cannot afford these extravagances nor can they devote their entire time to that one case. If you are an average citizen, and you are making a decision whether or not to settle your case, cop a plea or go to trial, your limited resources and your relative anonymity will automatically make your trial different from that of a celebrity. For example, maybe you have a game-winning motion, but can you afford to pay for the experts you need to put it together? The typical lawyer for an average Joe is working with hand tools and in such circumstances his/her resources cannot be compared with the government or the big corporations that have access to power tools. And if you are a juror, a witness, victim or merely a disinterested observer, don’t expect that both sides will have equal opportunities to open every door or to nail down every fact, just like you saw in the latest made-for-TV courtroom drama. The playing field in most trials is rarely level. The average Joe is usually up against the government or a big corporation or insurance company. It takes special skills and a lot of luck to win against such odds, but even so, it happens often enough to give the fat cats fits.
Most importantly, this book is not intended to be a substitute for the advice of a lawyer. I wrote it so that non-lawyers could have a better understanding of what is happening in court. Always remember that every case is unique. It has its own special facts including, most importantly (if you are a party) YOU and your opponent. If you are reading this book because you have a case, remember, your lawyer is always in the best position to answer your questions. She or he is best situated to make intelligent decisions as to what facts help make you an “us” and the other guy a “them.” If you want to know what will go on in the courtroom, should you decide to go to that route, this book can be your guide, but only a discussion between you and your lawyer can lead to an informed decision about what you should do in your case.
THE DIFFERENCE BETWEEN CRIMINAL AND CIVIL CASES
1) The Constitutional Distinctions Between Criminal and Civil Cases
One of the biggest misunderstandings I hear most often when I’m picking a jury comes during prospective juror responses to the question: “If you have ever served on a jury before, did it reach a verdict and, if so, what was the result?” Inevitably some jurors will respond by telling us about a civil case that he or she served on, saying: “We found the defendant guilty.” But that’s not what happened!
The big difference between criminal and civil cases is that in a civil case, one where a party is seeking only money from the other side, no one gets found guilty. A losing defendant may be found to be “at fault” or “liable” to the winning plaintiff for damages, but there is no conviction. While there may be guilt, it is moral and not legal. Civil cases do not result in a criminal record. No one goes to jail. No one loses his or her liberty or civil rights. The loser just has to pay the winner some money. In a civil case, we are all told we must equate money with justice. Unless you equate money with justice, in a civil case no one gets “justice,” just dollars.
Criminal cases are different. They are lawsuits brought by the government for violations of criminal laws. Usually this means someone can be sent to prison.
There are different rules for criminal and civil cases. The basic differences involve what our U.S. Constitution demands of our government before it can take away a person’s freedom.
Our Constitution provides that “(t)he trial of all crimes… shall be by jury….” [2] Criminal defendants have the constitutional right “to be confronted with the witnesses against (them); to have compulsory process for obtaining witnesses in (their) favor, and to have the assistance of counsel for (their) defense.” [3] They also have the right “to a speedy and public trial, by an impartial jury…; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against (them); to have compulsory process for obtaining witnesses in (their) favor, and to have the assistance of counsel for (their) defense. [4]
In civil cases — which are lawsuits brought most, but not all of the time, for money — in federal courts we have the right to a trial by jury, but only “(i)n suits at common law, where the value in controversy shall exceed twenty dollars, …according to the rules of the common law.” [5]
Common law means the kinds of disputes between people and for money that were recognized as being proper to decide in a court in the times before our revolution. State courts have other rules that limit the right to a trial by jury. But readers should remember that if the lawsuit is for some other kind of purpose, such as an injunction, for example, to stop someone from harassing a person (perhaps to keep the paparazzi from climbing over a fence to photograph a celebrity wedding) there’s no right to a jury because the case is not for money.
There is even a difference between how we describe the parties in civil and criminal cases. In criminal cases the government is often called the “prosecution.” In civil cases the person bringing the case is called the “plaintiff.” The party against whom the case is brought, in both civil and criminal cases, is called the “defendant.”
From time to time, as we go through the workings of the trial, I will point out other differences between civil and criminal cases. For now, just remember that even though OJ Simpson was ordered to pay millions to the families of Ron Goldman and Nicole Brown Simpson, he was never found guilty of murdering them.
2) Indictments and Preliminary Hearings In Criminal Cases
In criminal cases involving felonies (which in most cases are crimes that can result in sentences of incarceration for more than one year) a case doesn’t get to trial unless the defendant has been indicted or a court has ruled at a preliminary hearing that there is enough evidence to send the case to trial.
An indictment is something that happens when a government attorney presents a case to a grand jury. The grand jury is different than the kind of jury you see in a trial. Usually a grand jury is larger than 12. California uses 19 jurors. Some other states use as many as 23.
A grand jury is picked from citizens who have been selected from voter registration or DMV lists, although some people volunteer. How random the selection process really is has always been a matter of debate. However, those who don’t vote or drive usually don’t have a chance of getting picked. And lawyers don’t get a say in who serves on a grand jury. In fact, lawyers sometimes don’t even know that their clients are under investigation by a grand jury.
The public rarely ever gets to see a grand jury. The media almost never interviews members of a grand jury. Grand jury proceedings are supposed to be held in a secret. Grand juries do their work behind closed doors. There is no judge that controls the work of a grand jury. Witnesses are called but cannot bring lawyers into the hearing room with them. The only lawyers in the room with the grand jury are prosecutors. [6]
With only the prosecutor present, the grand jury is given cherry-picked evidence from which they must decide whether to charge the defendant with a crime and send the case to trial. There’s no one in the room to question the evidence. No one will pipe up and say the evidence was illegally obtained. If the defendant’s confession was obtained using torture, it’s good enough for the grand jury. There will be no one around who will ask tough questions. It’s all softball.
A grand jury doesn’t have to make a unanimous decision, as is required by a criminal trial jury. Only a majority of grand jurors has to vote to indict the defendant, so generally it’s easy for the prosecution to get an indictment.
Government attorneys often keep the indictments secret (sealed) until they arrest the defendant. Only after the defendant has been arrested will his or her defense counsel get a copy of the grand jury indictment. At this point the defense attorney can move to receive a record of the testimony (transcripts) so he/she can ask the court to throw out (quash, not squash) the indictment because of insufficient evidence or other unfairness, such as when the government uses evidence that has been illegally obtained. Meanwhile, the client has been arrested. If the case is high profile, there is often a “perp-walk” where the press gets a chance to take pictures of the defendant in handcuffs making a clumsy attempt at shielding her/himself. The headlines will scream that the notorious defendant has been INDICTED!
Many members of the public, hearing the words “indicted by a grand jury” often fail to understand that this is not the same thing as a conviction or proof of guilt. They hear the word “jury” and assume there has been some sort of fair trial, when in fact the defendant never got a chance to present witnesses, cross-examine the witnesses that the government used or to question the legality of the evidence. This may potentially prejudice a trail jury and the defense attorney must decide how to deal with terms like “Indicted” and “Grand Jury” should they come up at trial.
The other way a felony case gets to trial is after a preliminary hearing. Preliminary hearings happen in open court. The defendant and her/his attorney are usually present. The prosecutor calls witnesses and examines them. The defense is permitted to cross-examine the witnesses and to make motions to throw out evidence. (For example, if there is evidence that has been obtained as a result of a wrongful search and seizure, the defense is permitted to object and say that the court shouldn’t consider it.) The defense is permitted to call its own witnesses at a preliminary hearing but usually chooses not to do so. At the end of the hearing, the court decides whether or not there is enough valid evidence to send the case to trial. It is generally a fairer procedure than a grand jury investigation, but the amount of evidence required for a judge to order a case to trial is very low. In fact it is nowhere near the “proof beyond a reasonable doubt” required to convict a person of a crime.
3) Motions to Throw Out a Civil Case
In nearly every big money or big issue civil case, the lawyers will file a motion trying to get the case thrown out before it gets to trial. It’s called a summary judgment motion. [7]
In a summary judgment motion, the side that is bringing the motion is saying to the judge that the other side doesn’t have any good, believable or legally admissible evidence to prove the case claimed. The party who makes the motion can be either the plaintiff (in a civil case there is no “prosecutor”) or the defendant. This party is asking the judge to toss out the other side’s case. The argument usually goes like this:
“Judge, the other side doesn’t have any evidence to prove my client did what he claims my client did.”
Or: “Judge, maybe the other side has some evidence that looks like it shows that my client did what he claims my client did, but judge, no reasonable jury could possibly believe that evidence, so let’s not spend all that time and money on a trial. Throw the case out.”
Or: “Judge, the evidence that the other side is using is not legally admissible because it was improperly obtained (or is hearsay or is privileged.) Find that the evidence they want to use against my client can’t be used. If you do that, then they’ve got not case.”
As you might suspect, this motion goes to a judge long before a jury ever gets picked. The parties have to show the judge their case, usually through sworn statements called affidavits or declarations under penalty of perjury. The judge will take a look at the evidence and make a decision whether or not the evidence can be legally put before a jury. Then the judge will ask whether any jury or judge in his or her or their right mind could possibly believe it and if it could be believed, whether it would be enough evidence to result in a verdict for the side opposing the motion. Even if the case is a long shot and the evidence might appear to be weak, if a judge or jury on the right side of crazy could believe it, the case will go to trial. If the evidence presented by the side wanting to get to trial is not believable or if the evidence doesn’t prove that side’s case, even if it was believed, then the judge will toss out the case.
Whenever a case gets to trial (whether civil or criminal) the observer should keep in mind that long before that day in court the case has very likely been vetted by a judge who has made a decision that if the evidence that will come in is reasonable to believe and if it is believed in trial, the prosecution or plaintiff can win.
In a criminal case it doesn’t work the other way around though. A defendant can go to trial with nothing because a defendant is entitled to be found guilty by a jury. A judge can’t convict a defendant and send him or her to jail unless the defendant is willing to let him/her by waiving the jury.
WHAT YOU SHOULD KNOW ABOUT THE PLAYERS
We tend to think of trials as a constellation of stars — the judge, the lawyers and sometimes the parties (who may be celebrities or simply notorious) — plus some bit players such as the witnesses and jurors, surrounded by basically irrelevant supernumeraries, the bailiff, court clerk and reporter. But anyone who really wants to be in the know about a trial should pay at least a little attention to all of these folks and consider how they might affect the outcome of a trial. A careless court reporter can impact a whole trial. The bailiff, who rides herd on a jury while it is kept in seclusion (sequestered) during deliberation, can also influence a result, for good or ill. Let’s scroll through the cast of characters:
Have you ever wondered how a particular judge gets to preside over a particular case? I wish I could give you a simple answer, but there really is none.
There are a number of ways that judges are selected for a case. In federal court, the judge’s names are selected at random, usually by lot. They will hear the assigned cases from beginning to end. Sometimes, when one case is related to another (For example, when the same company sells a bum product in two different places at two different times.) the same judge will be assigned to both. In state courts, nearly every county has a different procedure. In small counties, the same handful of judges (or sometimes a single judge) will get all the cases. In larger counties, some judges handle only civil cases while others only handle criminal cases. In very big counties, some judges only handle trials while others mostly handle motions or specific procedures such as managing the entire pre-trial calendar. In most large state jurisdictions, judges become experts in certain areas of law and are given assignments based upon that expertise. For example, some judges preside only over criminal cases. Others specialize in civil trials. Some only do family law, such as divorces, adoptions, guardianships and things like that. There are judges who spend their entire careers doing nothing but probate cases or juvenile law. Federal judges are a little different and mostly do both civil and criminal cases, from beginning to end.
In some places, judges are assigned a case from the moment it is filed. In other places they have what is called a “Master Calendar” where all criminal or civil cases start out. The judge who presides over a Master Calendar then assigns the case to particular judges to hear motions or to do the trial. In many state courts, the number and identity of the judges who will be likely hear a particular kind of case are well-known and so lawyers can calculate the odds, play the angles and try through various tactics to steer certain cases to judges whom they prefer. This is one form of what is called forum shopping.
Judges get their jobs either through an election or by way of a political appointment. Federal judges receive lifetime appointments by the President but require approval by the Senate. California is typical of how most state judges get their jobs. In California, most judges are appointed by the governor after a career with a government entity, such as serving as an assistant DA, or a run in politics. A few are elected. After his or her initial term of office, every judge must stand for reelection. Sometimes the governor will appoint an attorney from private practice, but chances are that appointee devoted a lot of off-duty hours and made contributions to a political party. Judgeships are a reward, not simply for being a competent attorney but for demonstrated service in pursuit of goals favored by politicians. It is a system that produces few loose cannons and results, for the most part, in a conservative judiciary rather than the mythological liberal-activist jurists [8] that we hear about so often.
One of the great urban myths is that the judges who are loose cannons are liberals. But one of the best examples of outrageous judging within the last half-century was an archconservative, U. S. District Judge Julius J. Hoffman, who presided over the 1969 trial of the Chicago Eight. [9] At the very beginning of the case, he held the defense’s research attorneys in contempt for not showing up in court on the first day of trial even though they were not the “in-court” lawyers. He was trying to hold them hostage to force the case forward despite the fact that one of the defendant’s “in court” attorneys, Charles Garry, was recovering from an operation and couldn’t attend.
From there it went downhill. Judge Hoffman deliberately misstated the names of defense counsel in an effort to humiliate them. He berated the defense attorneys in front of the jurors with accusations of incompetence. He routinely denied defense objections with snide comments. He restricted these lawyers’ offers of evidence while permitting the prosecution to introduce evidence using similar principals of law. He received messages from jurors during deliberations and failed to notify defense counsel of their receipt.
Ultimately, the U.S. Court of Appeals for the Seventh Circuit reversed the convictions of the defendants finding numerous occasions where they failed to receive a fair trial based upon the judge’s prejudicial conduct. [10] In the end, because of the enormous publicity this case received, Judge Hoffman did more harm to public confidence in the fairness of our judicial system than any other judge during the last fifty years. His behavior stands as an example for judges everywhere of things to avoid.
Hoffman’s conduct during the trial was not typical of acceptable behavior by a judge. Most judges usually can be relied upon to keep their cool and to not render politically embarrassing decisions. They try to appear respectful when they are in the presence of a jury or the public. And state court judges, who must stand for election periodically, know that if they do get out of line they will face stiff politically driven competition come election time.
While Federal judges have lifetime appointments, all judges, both State and Federal, are subject to impeachment, which could result in their losing their judgeship. [11]
Not all lawsuits entitle a person to a trial by jury. That means that with some disputes only a judge will hear the case. Generally, trial by jury is limited to criminal cases and those civil disputes that either existed back in Merrie Olde England before our revolution or which involve conduct regulated by a statute (written law) where the law states that there is the right to a jury trial. Some cases, involving legislative remedies, such as California’s unfair business practices laws and federal anti-discrimination statutes, are heard by judges without a jury. (And as many of you may have experienced, in most places you don’t get a jury in ordinary traffic cases.)
Sometimes the lawyers think a case may be too technical for a jury and they opt to have the case decided by a judge, particularly after a judge that they think will be fair (or favorable to their side) has been assigned to hear it. This happens a lot with patent and trademark cases where the testimony of the technical experts can do the work of a sleeping pill.
When a judge hears a case without a jury, the trial usually takes less time. No time need be spent picking a jury. The judge can hear evidence and make rulings without holding hearings away from the jury. The judge doesn’t have to instruct the jury in what the law is. A lot of arguments can be submitted in writing. Things just go faster. That makes it cheaper in the short run. But in a civil case tried by a judge, it is not unusual for it to take four to six months before there is a final decision, while in a case decided by a jury, the parties get an immediate decision. [12] This time lag can be important tactically. It gives parties time to settle the case after all the evidence is in but before a judgment is entered. It gives the losing party time to hide assets. It gives the lawyers time to think up arguments, even after the judge has heard all the evidence, which they can use to influence the judge’s decisions on motions filed after the trial.
a) Some Tactics Lawyers Use To Get A Favorable Judge
Over the years, lawyers have developed a number of strategies to steer cases either into or out of the courtrooms of particular judges. Here are just some of the ways:
• Challenging the assigned judge for some sort of reason (known as “cause.”)
Perhaps the judge came from a law firm that is the same one representing one of the parties. Or perhaps the judge is the member of the same club as the CEO of the defendant corporation. Maybe he or she belongs to an organization that is known to discriminate. Maybe the judge has made a notorious remark in some other context that relates to the case at hand. Possibly the judge and one of the attorneys have had a personal dispute in the past. The judge might be a stockholder in a corporation that is a party to the suit, or has a financial interest in an insurance company that will be liable if a party loses. All of these circumstances might be grounds for a lawyer to challenge that judge for cause.
A challenge is a motion where the lawyer asks that a particular judge not hear the case because he’s too cozy with the other side or he hates the lawyer or client personally. The lawyer is asking to get a different judge. (Of course, it’s always a good idea to know what other judge might get the assignment. A lawyer could easily be jumping from frying pan into the fire.)
• Challenging “peremptorily.”
Some places like California have a rule that allows a lawyer to veto an assignment to a particular judge, one time per case. This form of challenge is not available in all jurisdictions including federal courts, but where it is available, a party might have one opportunity to say: “We don’t want that judge.” The reason may be a general belief in the prejudice of that particular judge. Perhaps he or she is known to be a particularly tough or easy sentencer for the crime involved. There are instances where local DAs have used peremptory challenges in every case assigned to a certain judge because they were miffed by a ruling that judge made some time in the past.
I knew a judge who always gave the same sentence to drunk drivers regardless of the gravity of the offence or the extenuating circumstances. Nothing mattered. If my client had no excuse for his conduct, I’d prefer this judge. If my client had a good explanation, I’d challenge him.
Early in my career, I frequently ran into a judge who was a famous alcoholic and was known to be exceptionally erratic after lunch. I once saw this judge lock up a prosecution witness because the witness was in the hall smoking a cigarette when the judge finally returned to the bench an hour tardy and tipsy after a lunchtime bender. Incredibly, this fully crocked judge actually ordered the incarceration of the witness into the same holding cell as the defendant. The bailiff was visibly shaken that the defendant might take the opportunity to slaughter his accuser right there in the courthouse. Thereafter, I always challenged this judge, reasoning that any sober judge was better. I also believed that the other judges knew the reason and didn’t hold it against me.
A few years back I was trying a case for a professional athlete. The lawyer for the team owner, attempting to show his client what a tough competitor he was, deliberately set a motion for hearing on Yom Kippur, the holiest day in the Jewish calendar. I pointed this out to my adversary, explaining that I observed that holiday, and requested a brief continuance. My adversary stubbornly refused, forcing me to fly from San Francisco to Los Angeles to request the continuance directly from the judge. I still remember that jurist’s grimace as he told my clueless opponent that no one in his court would be permitted “to stand between a man and his god.” From that day forward, my opponent took his at bats in front of this judge with two strikes against him. If he ever again had another case in that jurisdiction, he’d be wise to challenge that judge.
Lawyers are reluctant to use a peremptory challenge, in most cases, because they know that the other judges don’t like it (it makes more work for them) and are fearful that whatever judge they will be assigned to after making such a challenge will hold the challenge against them, unless there was a real good reason.
• Manipulating the length or complexity of your case.
In places where the trial judge is selected the morning of trial, lawyers will check around to learn which judges are available. They will ask clerks whether a particular judge will be free. They will find out who is on vacation or going on vacation, who is currently working on a case and how long it will last. For example, they might exaggerate when they tell the assigning judge their estimate of the length of their case and say their case will take two weeks, even though it will only take one, to exclude a judge who may be available this week but won’t be available the next.
• Delay.
Lawyers are pretty good at coming up with excuses why the case should not go to trial on the appointed day. In those situations where a judge has been assigned to hear the case from the earliest motions right through to the end, it is not unusual for feelings to harden between the judge and one of the parties or their lawyer. Judges do retire, get reassigned or sick. When a lawyer gets stuck in such a situation, lawyers will look for every opportunity to delay matters in hopes that the case will outlast the judge. I recently completed a case where we went through three judges due to retirements.
Another delaying tactic occurs in a place where there is a list of cases waiting to be assigned for trial (a Master Calendar jurisdiction.) Sitting in that courtroom, on the morning of a pending trial, you will hear all kinds of reasons for delay. Clients will be sick. Witnesses will have gone on vacation. Experts have just discovered that they are unable to testify because of a conflict of interest. The client wants to change lawyers because he or she is angry with the lawyer’s trial strategy. [13] The lawyer is presently in trial someplace else. An important piece of evidence has just been discovered. It goes on and on as lawyers try to avoid a day of reckoning.