Imagine for one moment that you are falsely accused of committing a crime you did not commit. Imagine that someone made up horrific lies about you, claiming you did something that you simply did not do. Imagine that the person accusing you of these things that you did not do, stands to gain something by lying, maybe fame, maybe fortune, maybe just getting even with you for some imaginary slight?
What would you do? Moreover, what would you want your lawyer to do? Fight for your rights? Tooth and nail? Or just shrug and give up? Seriously? I know your answer. Because that is what I do for a living. Fight for my client’s rights.
But some people resent it. In my book, “she’s innocent”, I write about this happening to me once during a trial. It happened at the worst possible time. During jury selection, when you are trying to get the jury to open their minds and listen. A ‘soon to be bounced’ prospective juror said that he felt that I was “trying to fool the jury by suggesting defense theories to them, and, frankly, I think it’s unethical.”
Fortunately, this happened at 11:57 AM on the second morning of trial; I could almost hear everyone’s stomachs grumbling. I needed time. The judge jumped on my suggestion that we break, even though this might give the comment time to burn into the jurors’ collective brain. In which case, I had to really come back with a Zinger. Which can take some time to carefully craft, rather than just blurting out some lame knee-jerk response.
Over lunch, as I munched on my ritual Club on Sourdough from the County Deli across the street, I pondered what he had said. Even suggesting that there might be two sides to the story seemed unethical to him. Oh, really?
It was time to break the Cardinal Rule. “Never attack a Juror.” Screw that.
When court resumed, I had this clown all to myself.
“Juror #14, before the break, you commented about how I was asking questions, that right?”
“And you said you thought it was unethical that I was suggesting things about what happened on the night of this tragic fire by the way I asked jurors questions, is that fair?”
“Now, you heard Mr. Strow’s questions during his Voir Dire, right? In fact, you answered a few?”
“So, you heard him asking about burned dead bodies and people throwing flaming gas-soaked rags on an innocent man while he slept, right? Was he being unethical by asking these things?”
“Well, of course not. It’s what his case is about. He has a right to ask.”
“Well, imagine this, imagine that you were sitting here, falsely accused of a crime you did not commit, an innocent person, can you imagine patting your lawyer on the arm when they began to ask about the other side to this story, and saying to them, “No worries. Leave it alone. Relax! Don’t take it so SERIOUSLY!”
The rest of the jurors erupted in laughter, #14 got tossed “for cause” (i.e., for calling me unethical in front of the entire jury) and we got the big NG.
It was fun.
Do I have to love my clients to do this work? No. (Although I do genuinely like most of my clients.) However, I do have to love the law. And winning, of course. Even though I kinda hate the law, I put up with it. I’m stuck with it; the law is not up to me. Same with facts. I play the hand I am dealt, rather than wish I had different cards.
As for the law, like the Facts, it’s beyond my control. I am not a Legislator. I don’t write it. I just read it. And think about it. And write about it, and argue about it in court, including arguing about what it means. And, of course, we argue about the facts too. Especially what the real facts actually are. Which is not always clear.
And this, Dear Reader, is why we have trials. A “Search for the Truth” is a common way to explain trials. In a perfect world. In reality, they are a Search for Winning. The so called “truth” is totally irrelevant. It is not how things are, or were, it’s how they appear to be. Therein lies the rub. It’s the reason people hate lawyers. They are tricksters. They make people think things.
And, this, more than any real political or philosophical disagreement is what is driving the silly commentary going on right now about Trump’s civil rape trial. The Media, are all atwitter about how outrageous his lawyers are acting during his trial.
His defense lawyers are just doing what any decent defense attorney would do. They are essentially asking the victim if she had something to gain, and why she made fun of the incident and why she praised “The Apprentice.” In other words, they are asking if she is biased or making stuff up because of some ulterior motive. They are pointing out inconsistent behavior or statements. They are asking about doubt.
This is 100% totally fair. There is absolutely nothing wrong with asking these things. What if the witness says, “Well, actually if I win, I get a Million Dollars so that is the only reason I am suing.” And since they are asking for that much if they indeed do win, it’s not exactly a fabrication now, is it? But, if they say, “Well, I was permanently harmed by this and want to make up for not coming forward sooner in order to save other potential victims.”? If they seem credible that could win the case.
From what I saw of coverage of the trial today, the primary witness / plaintiff is holding their own, and if that happens guess what? The truth (and Justice) may just prevail.
If nothing else, it’s a classic example of how trials actually work, and also how very few people really understand that.
I’m just glad that I do.