13 components of quick not guilty verdicts

13 components of quick not guilty verdicts

Recently, I was able to get a not guilty verdict in 90 minutes in a complicated fraud trial. If there was any real debate, the jury should have been out for more than 10 hours. After the verdict, several lawyers asked how I did it. Thus, I thought that I should put something in writing to help others achieve similar results.

1. Luck

As much as I'd love to say that I am the sole reason for such a great result, luck always plays a part in any trial. Getting the right judge, the right jury panel and the right prosecutor is pure luck most of the time. There is little you can do about it except to recognize that it is there (or not there).

2. Discovery

Too many lawyers accept the discovery packet from the prosecutor as being complete. In my experience, this is rarely the case. There is usually more reports or other evidence out there. Getting all of the discovery should be your first step in every case. You should also interview all witnesses that you can. Most jurisdictions do not allow depositions for criminal cases, so you will have to get an investigator or get some type of testimonial hearing. You do not want any surprises at trial.

3. Organization

This is what separates the real trial lawyers from the pretenders, especially in a complicated white collar crime trial. The cornerstone of this is a good trial book. A trial book should be separated by witnesses. All documentary evidence that mentions a witness one way or the other should be included in that witness' section. For most cases, you'll want to put all of this into chronological order. Otherwise, it should be in the order in which you will question each witness.

4. Preparation

You need to have everything done before you step into the court room. This includes having your opening statement written out, all questions written out and an outline of your summation. Next to your questions, you should note the document along with page and line for refreshing recollection and impeachment. This will help you stay organized and will take the edge off. I hear too many attorney say that trials make them nervous, anxious or stressed out. This is most likely due to them trying to do too much at one time. Listening to testimony, thinking about what questions to ask, how to ask them and trying to remember what the evidence regarding that issue is too much to do at once. Having everything done ahead of time not only allows you to relax and listen more carefully, but it also helps your focus.

5. Focus

This is also seriously lacking from many trial lawyers skill sets. By not being prepared, it is difficult to focus. Everything you do should have a purpose. Too many lawyers use a scatter shot approach to questions, opening and summations. If they don't know what they are doing and why, how can the jury? Also, by jumping all around, you can confuse a jury. Jurors have limited attention spans. Asking them to pay attention to hours of testimony and then recall that days or weeks later is not an easy task. Focusing their attention on the key points will greatly assist them to see your side of the story. Focusing will also help you pick and choose your battles. Some lawyers fight over evidence that isn't even at issue. Don't be afraid to concede an issue or ask only a few (or even no) questions to a witness. Focusing your presentation to the jury will also help you stick to your themes.

6. Themes

Most lawyers know that they need a theme, but their execution is weak, usually as a result of poor focus. There is also a misconception that you should only have one theme. I never like to have a one size fits all approach to anything. One theme might work for some cases, but for most, you will need several and they may not all be equal. The themes should shape your entire case. Every question you ask should be tied to one of your themes unless it is relevant to impeachment.

7. Cross examination

Buy the Pozner & Dodd book and DVDs. It is everything you will ever need about cross examination. By using their techniques, you will shred the witnesses that you cross. It is quick and impressive when carried out correctly. They also instruct you to write out all of your questions. Again, without having to think about what question to ask, you can ask your questions in a rapid succession which gives the witness no time to think about their answer. Finally, you have to understand that cross examination is not a time for summation. Make your point and move on.

8.Summation

Your summation should be clear, focused and most importantly, supported by the evidence. When your arguments are supported by the evidence, it will extremely difficult for the prosecutor to argue against it. Chance are, they will ignore your argument or they will make an argument that is not supported by the evidence. As a result, they lose credibility with the jury. If you presented your case correctly, you should be able to ask the jury to make a logical inference by looking at numerous items of evidence and testimony that is undisputed. Your summation should also tie up all of your themes with a quick reference or two to something you said in your opening. Asking a few rhetorical questions while nodding helps as some jurors will instinctively nod with you. You also have to understand that some jurors learn by hearing while others learn by seeing. Thus, telling them what evidence supports your arguments and then immediately showing them that evidence is very powerful. Finally, you need to address the jury instructions. Instead of just reading them to the jury, they should be woven into your discussion of the evidence. When the jury listens to the instructions and later considers them, they will be in a much better position to remember what arguments go with what element for each charge.

9. Presentation style

Lawyers talk down to people too much. I hear it from clients all the time. They tell me that other lawyers have a bad attitude, they lie to them and they do not address their concerns. To be a successful lawyer, you need to be a real person. Speak to the jury as you would speak to anyone else in your personal life. You don't need to get fancy or cute with them, just be yourself and be real. Focus, preparation and organization will also help your speaking style. Too many lawyers are robotic. Watch politicians or CEO's of major companies. Many of them are great public speakers because they speak clearly, loudly are engaging. Don't forget to be courteous to the prosecutor and the judge at all times (unless of course, either are being incredibly unruly). You do not want the jury to be upset with you for any reason.

10. Timing

Finally, your timing throughout the trial is key. This is another issue most lawyers overlook. Have an argument over a witness or a piece of evidence? You may want to wait till that issue comes up at trial. By doing this, you can seriously derail the prosecutor's case if successful. The complexity of the argument and the importance of the evidence may dictate if you make the objection before trial. Timing should also dictate when you make arguments to the jury. If you can get a piece of evidence admitted into evidence such as a document, you may not want to read it until summation. Bringing out the argument with the witness opens the door to an explanation which can reduce the impact of the argument. Waiting for summation prevents any explanation. Finally, you should use timing to make testimony seem more natural. For example, if your client testifies and he has a criminal record, do not bring it up in such a way that makes it seem obvious that you are brining it up on purpose. Instead, find a way to make it a natural part of your client's testimony. Not only will it not seem obvious, but you can argue to the jury that your client's disclosure of his past supports your themes, i.e. he is honest and up front, he has history of drug offenses which supports the intoxication defense, he was set up by someone that knew about his record, etc.

11. Own the prosecutor's evidence

The quickest way to cut the legs out from under the prosecutor's case is to turn their best evidence into your best evidence. This will usually surprise the prosecutor which can leave them unable to adapt. Thus, their witnesses, evidence and arguments begin to support your case. You shouldn't be afraid to point this to the jury either. For example, if your client did little to cover up his tracks, this shows that everything was legit as there was no deception. If he made a statement without an attorney, it shows that he has nothing to hide (assuming you can work with it).

12. Passion

Not only do you need to have passion, but you need to show it to the jury. The jury will pick up on it and appreciate it. After all, if you are not passionate about your client's defense, why should the jury care?

13. Courage

There is an epidemic among lawyers today. They are afraid to go to trial. I saw this in law school and I see it today. Because they are lacking in their trial skills, they doubt their abilities. Following everything set forth in this article will go a long way to boost your self confidence. You also can't be afraid to show that the prosecutor's case is garbage. Too many lawyers are also scared to say something that could upset the prosecutor. You can be polite while still throwing the prosecutor under the bus. You should not be afraid to say anything within reason about a witness or the prosecutor's case or actions. One way or the other, your client's life is on the line.

In the trial that I referenced at the beginning of this article, I called the prosecutor's case garbage, argued that their investigation was sloppy and focused on guilt and not the truth, and then pointed at one of the main witnesses and said that he is the one who should be on trial as he is a liar and a thief that will step on anyone to get more money, all within about two minutes. My comments were so devastating, that his wife came up to me the next day and told me that my summation was really good but that my comments about her husband were very hurtful and they kept him up all night. I thanked her. When she asked me if I had a conscious, I said no since I have a client to represent.

Conclusion

Notice I didn't mention experience? That's because experience is overrated. 30 years of trying cases the wrong way means little. Only a few years of effective trial preparation and presentation is all that is needed to run circles around most prosecutors. However, a trial lawyer should always remember that this a career where there learning never stops. No matter how much you know, there is always someone that can teach you more. You can never be the best because you can always get better. If you strive to always do your best and always learn more, you will win more cases and have more fun. Isn't what this is all about anyway?

Jef Henninger, Esq. is an attorney with Jack Venturi & Associates. He has four offices in New Jersey: Toms River, New Brunswick, Eatontown and Monroe. For more information, visit http://www.jackventurilaw.com