I know the criminal guys got all of the attention on OJ, which is part of the reason I am focusing here on the civil lawyer, Dan Petrocelli; the one who sued OJ for Wrongful Death and won. But the main reason to focus on him is that his approach to this case demonstrates everything you need to know about the best way to try a case. Whether you are a seasoned trial attorney or a just an interested citizen, you can learn a lot about the right way to do this work by focusing on what Petrocelli did to achieve victory where others failed.
As with most things, the best way to analyze Petrocelli’s work is to begin with some general fundamentals and then move on to the specifics (just to be clear, I am going to refer to both the deposition and trial when I say “trial work”. That’s because the whole process, from first looking at the evidence to closing arguments, is “trial work.”)
Preparation, preparation, preparation. Preparation is to trial work what location is to real estate: everything. Without it you may as well pack up and go home.
Although preparation is important, it’s not glamorous. When I am working on a big trial, sitting at my desk at 4 a.m., momentarily unsure whether I have been there all night or came in super early, my hair sticking up, wearing a coffee stained t-shirt, I like to tell people, “Hey, it ain’t Richard Gere in Armani!”
It ain’t pretty, in other words. You have to slog through tons and tons of information, dissecting, organizing, analyzing and memorizing it, separating the wheat from the chaff, until you are ready to pull that messy hair out by the roots. (Hmmm maybe that explains my hair loss issues…)
Petrocelli clearly did this, even if his hair still looks great. He obviously drilled down big time, until he knew his case backwards and forwards. It’s all about the details, and in a case like this that’s huge; because the amount of information available was huge. As Petrocelli kept calling it, “A Mountain of Evidence.”
There was a mountain of evidence because it had all already been paraded in front of a prior jury in one of the longest criminal trials in history. Too much evidence in fact. The point of gathering and reviewing this evidence is to drill down on the details to find connections, inconsistencies, missing pieces and themes that help explain what happened. Why blood evidence showed up where it did. Why Nicole told people that OJ was going to kill her. Why OJ was so upset in the first place. In other words, why and how OJ killed Nicole.
This analysis is more complicated than you can ever imagine. The art (or science) of trying cases derives from mastering it all, even when there isn’t a mountain of evidence.
In law school I had a criminal law professor, Anthony Amsterdam, considered by many to be one of the best criminal lawyers in the world at the time. There were stories about how he corrected a U.S. Supreme Court Justice during oral argument when the judge told Professor Amsterdam his citation was wrong. Without missing a beat, the story goes, the professor shot back, “Your Honor’s volume must be misbound.” They checked and it was. He was legendary.
But what did this genius have us do for an entire semester in his criminal law class? Read one case. Four, count ‘em, four pages long. New York v Tompkins I think it was. We dissected it and broke it down into little pieces and put it back together again, again and again and again, until we finally started to get it. Working every possible defense theory into the facts of the case, considering every single legal argument from every possible angle, drafting endless possible jury instructions. Preparation, in other words. The idea was that if you understand how to do this with four pages of text you’d have the tools to attack a case of any size, even if it winds up taking over your life.
Petrocelli did that here. The OJ case took over his life (apparently he was so obsessed with the detail work that his power and phone lines were cut off when he forgot to pay his utility bills.) And it showed. When he got OJ in his office for the most important part of the pre-trial preparation, his Deposition, Petrocelli was ready for him.
He had memorized every statement that OJ had ever made about what happened, had scrutinized every photo, every witness statement, every piece of forensic evidence. Then he had taken it all and created a literally exhaustive list of questions to ask OJ once he got his shot, knowing in advance what the right answers were, or at least what the evidence showed.
The other key to preparation, in addition to mastering the facts, is to figure out the best style to use to get the witness to say what you need him to say. The best way to do that in a deposition is often to just let the witness talk. As Petrocelli describes it, to let him lie. In cross examination during trial you want to direct the witness’ answers. You use leading (i.e. yes/no) questions to focus the answers and make the points you need to make. That is true to some extent with depositions too, as you don’t want the witness to wander too far off topic. However, the most useful answers during depositions often come when the witness is allowed to speak freely, without any framework. That is when they trip up.
The deposition is a major tool available in civil cases, not normally available in criminal cases. This is especially true when the person being deposed is the defendant, who has a Fifth Amendment right not to talk about the case and therefore cannot be forced to be deposed (or speak to anyone at all, for that matter) before a criminal trial.
One glaring problem with the way that O.J.’s criminal defense case was handled is that he talked to the cops back when he was first contacted right after Nicole’s brutal murder. I blame Kardashian, since it appears that he was stage center in those early days and since he clearly did not understand the value of remaining silent when he read O.J.’s statement for the entire world to hear. He was probably more worried about O.J.’s ratings. Must be a genetic trait.
Petrocelli knew that O.J. talking to the cops was a giant blunder, since it provided him with tons of fodder to trip up O.J. with prior inconsistent statements, half-truths and out right lies.
Take the cut on his hand for example: a classic case of why you need to shut up when the police want to interrogate you. Instead, O.J. sang like a bird – a bird that can’t keep their songs straight. At first OJ told the police that he cut his hand in LA before he flew to Chicago. He was unable to say how or where or on what. Probably because he was lying.
Then, during his deposition and civil trial, he magically remembered he broke it on a glass in his hotel in Chicago. This is where we begin to get more specific.
Petrocelli had the original statement OJ made to the police where he said he cut himself in LA, before he was in Chicago. He knew OJ was lying about cutting himself in Chicago. So what did he do? He let OJ lie. Like a rug.
The way he did this is classic. When people lie, they often have a general idea of their story. But they don’t think about the specifics. So Petrocelli did that for him: “You cut your hand on a glass? How did you do that? How did you cut your hand? Did you cut it on one of the pieces of glass? On what piece?”
OJ of course did not know the answers to any of these questions, because he was lying. He thought that saying he cut his hand on a glass was enough. Petrocelli knew that he would not be able to describe that in any detail, because it never happened.
He did the same thing with the shoes, my personal favorite. That’s because the shoes are a perfect example of something I call “Trial Magic.” Something mystical happens when you put everything into the truth crucible called trial. Things seem to appear out of thin air that often change everything. It can go both ways. When it goes against you it’s like bad voodoo. But when it goes your way it is magical.
I once had a month long murder arson trial that was being called a “burning bed” case. It wasn’t. It was an accidental fire, but the police were so eager to stitch up my client that they ignored anything that was not consistent with their mission to get a conviction.
Tons of internationally renowned experts had spent hundreds of hours scrutinizing the evidence exhaustively in unbelievable detail, complete with recreations and animations. Our counsel table was literally covered with photographs. I was in he middle of cross-examining the State’s big expert. Suddenly, as if guided by divine intervention, a particular photo caught my eye.
There it was. THE missing link.
I suddenly noticed that in the photo all of the experts had missed, the top of the door in the basement right under the “burning bed” was burnt. The doorframe was untouched. That had to mean the door was open during the fire. That meant a constant source of air was fanning the smoldering flames, creating a giant burn hole above it where the bed was located. That explained the burn hole, which their experts were convinced proved it was arson, because the hole was so big that they thought the fire must have been started using gasoline. But no. It was so big because it had a constant airflow fanning it from below, increasing the burn rate to the level you might find had it been arson. Only it wasn’t arson, it was a cigarette that had fallen out of an ashtray.
Ultimately it was one of the most critical pieces of evidence, even if I had to yell at the expert to force him to look at the photo and admit that I was right about my analysis. The jury agreed with me. We won.
The shoes remind me of that burn hole. There were very unusual bloody shoe imprints made by a pair of rare Bruno Magli shoes found at the murder scene, which matched an unusual pair that OJ allegedly owned. When it comes to a major piece of evidence, if you lie about it or get it wrong, you’d better not get caught. Like those fire investigators did, and like OJ did about his shoes.
Petrocelli had pinned down OJ in his deposition about the shoes. Pinning down the witness and getting them to commit to a particular position, especially when they are lying, is another super important legal skill, which Petrocelli did beautifully.
During the deposition Petrocelli let OJ sing away about how he would not be caught dead wearing such “Ugly Ass Shoes.” When he did, Petrocelli used another technique I like, repeating the phrase back to him with a sort of embarrassed but forced-to-be-accurate tone, parroting the phrase “ugly ass” as if it pained him to swear but that he had no choice since he wanted to be accurate.
“You said you would not wear those ‘ugly ass shoes’?” With a pained tone. Pin him down and hammer on the phrase simultaneously. Words are power in trial and knowing which ones to use and which ones to emphasize is key. ‘Ugly ass shoes’ is not a phrase you are likely to forget, especially when you hear it repeated back to the witness in an appropriate way by the lawyer. You ring a bell once and you hear it. You ring the bell more than once and it sticks in your memory like glue.
This is when the magic happened. In the middle of the trial, there was a recess over Christmas. Petrocelli got a Christmas present. A photographer who had covered OJ being honored at a football game had taken photos of him. Tons of them. Wearing guess what?!? THOSE SAME UGLY ASS SHOES!
When Petrocelli had initially confronted OJ about them OJ had claimed that the one photo they had of him in those shoes was fake, that it had been doctored. Now Petrocelli had all twenty or so of those photos. This is where he used another classic trial technique. He asked about each one of them. Photo by laborious photo. Slowly dragging out of OJ the lies. Again. And again. And again. Word was that after the first half dozen or so photos, each one shown to OJ to force him to say that yet another photo was doctored, the jury began to look down at their own shoes, almost embarrassed to be taken for fools who would believe that every photo was a fake, that OJ was not wearing shoes he is clearly wearing. In photo after photo after photo.
There is no rush to get this type of questioning over. It is like Thanksgiving dinner. You eat too much but that’s the point. You don’t forget what you had to eat. And that jury would never forget the sight of OJ compulsively lying about his shoes, over and over and over, which was a slight problem for him since those shoes exactly matched the footprints at the murder scene where OJ had walked those “ugly ass shoes” through Nicole and Ron’s blood. I guess with all the blood on them they probably were “ugly ass” by the time he was through.
Right about now it is just beginning to get good. However, they tell me that these posts should stay under 2000 words or the invisible Google monsters will get mad. I’m already well over that. So, please stay tuned for the rest of this discussion, which will be out Thursday.
If you would like Craig Platt’s help with a legal issue, you can find his contact information here or fill out a confidential, easy form about your case.