Mark Bennett wrote a post today about the Secret to Winning, which, according to his article is a riff off of a Gerry Spence blog that led to a Scott Greenfield blog that led to a so-on-and-so-on. At the end of his blog, Mark threw down the gauntlet or a "meme" (which I have no idea what that means) for me to list what my secret to winning is. He said he wants it from a prosecutor's perspective.
Who said I was a prosecutor? Okay, that's getting harder and harder to ask with a straight face.
For the record, I would never have been so presumptuous to list my "secret to winning" unless somebody asked. And I know, in advance of writing this, that I'm probably giving some folks more ammunition than the USS Eisenhower to fire against me.
I don't have a secret. I have things that I do that I'm comfortable with that have led to some results that I'm very proud of.
But a "secret"? I don't know about that.
These are some generalized things that I try to do in every trial and hope that I get a good result.
#1 - Be Yourself - there are plenty of great lines to steal from other lawyers, but when you are in front of a jury, you've got to be your own person when it comes to style and demeanor. Kelly Siegler once got irritated with me when I tried a case with her and I made the mistake of saying I hadn't learned anything from her during it. I didn't mean to be insulting. I just meant that the way that she tried cases was something I could never do. I believe that if you aren't yourself, the jury is going to see right through you.
#2 - Get Off the High Horse - when I'm in front of a jury the last thing I ever want a jury to think is that I somehow believe that I'm smarter than they are because I'm a lawyer. When I screw something up, I call attention to it and make fun of myself. I play (what some have called) the "dumb Aggie" card.
#3 - Know the Facts of the Case like you were there when it happened-I'm a big visual person. When I crack open a case, I'll look at the Crime Scene photos and videos before I read the offense report. I want a frame of reference for everything I'm about to read. I want to understand where everybody was standing and what they could have seen. I want to know everything. Go to your crime scene early, and more than once if you don't understand something. It's amazing how often crime scene photos don't give you a good idea of what the scene is really laid out like.
#4 - Issue Spot. Issue Spot. Issue Spot. - I freaking HATED law school, but Issue Spotting is the key to everything when it comes to trying a tough case. Mark has previous blogged on the "Dirty Little Secrets" he likes to drop on a prosecutor during a trial. If you've Issue Spotted correctly, hopefully you can offset a lot of them. Maybe not all of them. But a lot of them.
#5 - Meet with Every Last Witness You are Going to Put on the Stand - Don't even think of putting on even the most minor of witnesses on the stand without having had a sit-down with them. As Vic Wisner taught me in Baby Prosecutor's school many moons ago, avoid the "No sh*t" answer. That would be the one where you ask the witness a question, and when they answer, you look at them and go "No sh*t?!"
#6 - Get Yourself Some Theme Music - When you're going to trial, get yourself pumped up. I've got a whole selection on my IPod called "Pre-Trial". It ranges from Eminem to Ace Freley to the theme song of the Magnificent Seven. Cheesy? Incredibly so. But it gets me pumped up. Go figure.
#7 - Don't Be Afraid to Show a Sense of Humor During Lighter Moments - I'm not saying get silly during trial, but a little levity at appropriate moments can be an effective tool. It will also let a jury damn well know when you are being serious about something, too.
#8 - Always Be the "Good Guy" - I'm always respectful of the Court and my opponent, and I want the jury to think of me as the "Good Guy" through the whole thing. If opposing counsel is being crappy to me, I don't think that works for them. I think it gives me more credibility with the jury. Politeness to a Defendant can also go a long way, too. You don't want to look like a bully to the jury. Now, if a Defendant breaks bad with you or you've gone into questions that clearly show that the Defendant is Satan's spawn, then go after them like the Wrath of God. If you've shown politeness and dignity through the other parts of the trial, the jury will know your anger has a reason behind it.
#9 - Be Passionate - Believe in your case and the jury will believe in your case because you do. Care about your victims. Feel the weight of what the case means to them on your own shoulder. Don't be scared to add the pressure of shouldering that burden. Try the case like the victim was your own family member.
#10 - Be Right - Make sure that you believe what you are allegeding in your case -- not just Beyond a Reasonable Doubt, but Beyond ALL Doubt. There are things you will know about the case that a jury will never hear, but make sure that you know you are doing the right thing by trying the case, with no doubt in your mind. Even if it is an uphill battle, knowing you are doing the right thing will give you the passion that you need to carry the day.
Other than that, and never cross-examine the Defendant's momma, that's all I got. For what it's worth.
You guys please feel free to chime in with your secrets, too.