Monday, August 11, 2008

The Secret to Winning: AKA What the Hell is a Meme?

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.


Mark Bennett said...

Now you get to tag three other blogs. That's a meme.

A Harris County Lawyer said...

Okay. Then I tag Michael, Ron in Houston, and James Dixon over at Legal Y Drunk.

And by the way, if you haven't read Legal Y Drunk lately, you've GOT to read his latest post. Hysterically painful.

Ron in Houston said...


Any thought or behavior that can be passed from one person to another by means of imitation.

A common argument is that religion is a meme that is passed from generation to generation.

HPD 101 said...

Harris County Lawyer,
Number 10 is what sets you apart and above the Mark Bennets of society. Keep up the good work and I hope you stay at the HCDA's office to help pick up the pieces after the debacle in November...

Anonymous said...

May I share your list with some young prosecutors in my office? They are spot on.

Mark Bennett said...

I was wondering if your readers will still love you when you're on the other side of the bar and don't have the luxury of following #10.

I guess HPD101 answers that question. You're gonna break some hearts.

HPD 101 said...

Hopefully the Harris County Lawyer stays put.
In the event crazy Pat wins in November and our buddy is forced to resign; he can still maintain his integrity. I don't think ALL former prosecutors have to sell their soul and cross over to the dark side.
Number 10 should not be a luxury but rather a mandate in the legal profession. Justice, afterall, is what we're supposed to uphold, correct?

R.J. MacReady said...
This comment has been removed by the author.
Seer said...

No 10 is not that difficult. There are all kinds of arguments that can be made about cases, but not all of them are "right." If you know something isn't true, it isn't right, even if it might be a good argument. If you can't back something up, it isn't right, even if it might be a good argument. If opposing counsel opens the door to something factually right, too bad for him. This problem deals with the what if's and the law school training in arguing both sides. But right is what you know the facts are.

outraged said...

HPD 101,
Good job clarifying Mark Bennett on the issue of integrity.
It seems Mr. Bennett supports the "John Edwards School of Ethics".
How is integrity a "luxury"? Is Mr. Bennett actually claiming that "in the REAL world legal profession" character is of no consequence? Is he thereby advocating that a defense attorney is charged with "winning at all costs"? Is guilt and innocence not relevant in his world? How ironic.

Anonymous said...

Great list, AHCL. The TDCAA should adopt it and include a copy of it in all of their educational materials. Perfect.


Mark Bennett said...

I'm not going to point out that you are reading more into "Make sure that you believe what you are allegeding in your case -- not just Beyond a Reasonable Doubt, but Beyond ALL Doubt" than perhaps AHCL wrote. Nor will I explain that defense counsel doesn't get to decide what cases get tried, and doesn't have to prove squat. I also am not going to point out that the commenters here generally have no experience with, and therefore don't know squat about, criminal defense practice, or that the criminal defense lawyer has a Constitutional obligation to defend the accused and not, like the prosecutor, "to do justice." (I won't even ask you where in the U.S. Constitution your job description is found.) Nor will I suggest that all police officers are complicit, because they don't speak out, in other police officers' lies.

All of that would be like trying to teach pigs to sing.

I will, however, suggest that if you are, or a loved one is, arrested and charged with a crime, you won't want a lawyer who wants his idea of "justice" to be served, but rather one who will do everything the law allows to beat the case.

I'll also say that if AHCL were a defense lawyer, that's what he'd do. Get over it.

A Harris County Lawyer said...

Alright, boys and girls, let's ease up on Mark. Just because a referee makes a call we disagree with on occasion doesn't mean we need to villify him.

Quite frankly, I'm glad that Mark posed the topic of this post. I probably enjoyed writing it more than I have any other post for quite some time.

I'm very flattered by those of you who liked it. And I think it's good to keep in mind that Mark asked me to write from a prosecutor's perspective, which I did.

If (or when) I leave the Office [if I do, in fact, work there now :-)], I hope that I don't lose the perspective I have now.

My life is changing a lot this year. In more ways than I would have cared for it to have.

But I think at the end of the day, you have to be true to yourself and try to be the best person you can be, in spite of it all.

Even if your idea of what is the "best thing" is differs from others, always have a moral code and follow it to the best of your ability.

Anonymous said...

From Tarian:

This was a great list, AHCL. No. 10 is the most important, and is absolutely critical for prosecutors. If the truth is not your ally, you are sunk. Period.

Truth is not, however, the exclusive province of prosecutors. In fact, we are occasionally (gasp!) wrong. Truth and "being right" can also be the allies of the defense attorney, and when they are, watch out. I would never give Mark any "secrets" of winning, but this is one he should know very well since he has used it. If you make the truth your ally and you are honest with the jury, even about things that hurt, you will come out on top. Believe me. I've seen him do it.

But Mark is also correct that defense attorneys only occasionally have the truth on their side. Some commenters have jumped on him for using the word "luxury," but he only said that because it is an unexpected benefit, and not a necessity, to the criminal defense lawyer. They don't get to write the script or decide how hard they want to fight for a client based on how "right" he was. They have a job to do, within our system of justice, which unfortunately demands that they proceed in an adversarial fashion. For better or worse, they have no duty to seek justice, but only to zealously represent their clients, which grants them the blessed freedom to go about their business without having to constantly question the morality or consequences of their actions in a broader sense. They are performing the task they are legally obligated to do in our system, and so long as they do it ethically, legally, and honestly, they should not be judged or condemned for it. And Mark is also right that if and when AHCL (and perhaps other prosecutors who comment on this blog) become defense attorneys, you can expect him to do the exact same thing: Advocate for his client, regardless of the facts -- because it will be his duty and his job to do exactly that.

OUTRAGED said...

I agree that prosecutors have the "luxury" of seeking justice rather then "beating the system" as the defense bar often advocates. A prosecutor has the obligation to dismiss a case when he/she has not met the burden of proof. If prosecutors shared Bennett's beliefs with respect to the truth we'd be in a fascist state. No one said Mr. Bennett had to prove anything...that's the State's job. Obviously, most defense attorneys don't want the case to go to trial. When circumstances dictate some cases are dismissed and when BOTH sides are reasonable, many cases are plead out. Frankly, some cases go to trial because of: 1. unreasonable defense attorneys, 2. defense attorneys that like the pub and 3. drum roll please....extra fees when the defense attorney goes to trial. Go figure. So, Mr. Bennett, in fact, defense attorneys do decide on some cases going to trial. Whether or not charges are brought in the first place is a procedural issue.
Mr. Bennett's cavalier attitude towards the bloggers on this post that dare to challenge him is childish. Those that brag about their abilities generally lack them. Deeds speak louder then petty talk and I don't recall reading any major case law attributed to Mr. Bennett's courtroom prowess.
No doubt the US Constitution demands that a criminal defense attorney shall represent his client zealously so as to insure that each and every constitutional right of the defendant is protected. That is a far cry from getting a dope peddler exonerated at all costs even when the defense attorney KNOWS his client is guilty of the crime charged. Thom. Jefferson and the boys did not intend for crime to go unpunished and for smart and/or sneaky defense attorneys to subterfuge justice. Rather, the drafters of our Constitution cherished freedom and abhorred arbitrary unreasonable punishment. Thus our rights are therein preserved to insure fairness and justice to that end. Neither side is charged with "win at all costs", but rather with the obligation on both sides to insure that a fair trial is conducted and that if a determination of guilt is reached that a punishment is assessed proportionate to the crime committed so as to pass constitutional muster.
Mr. Bennetts stereotyping slurs of law enforcement are even more offensive then challenging the legal acumen of his fellow bloggers. The men and women who give so much for so little to protect so many should not be so unfairly judged without a fair tribunal process. Where is their due process Mr. Bennett? Whether or not there have been, are or may be in the future bad cops; that does not in and of itself give you the justification to condemn them collectively now and forever. Mr. Bennett, consistency is not your strong point and your regression to cop bashing was nonsensical given the context of discussion. Your insecurity and anger is duly noted.
I have never needed the services of a defense attorney to date. Should the need ever arise and "a Harris County Attorney" is available to defend me I would expect nothing less then a zealous AND honorable defense.

HPD 101 said...

I respectfully disagree with your assessment of Mark Bennett. Taken out of context your admirable defense has merit. However, when Mark's comments are judged in their entirety my impression is that his perception of ethics and honesty do not mirror yours or mine. Truth should not be ridiculed but rather made the cornerstone of our judicial system. Thankfully I agree that most defendants are guilty and truth would be a poor defense to free them from societal consequences. But guilty people are supposed to be punished not rewarded. When truth is on the defendant's side the truth should set him free; the "luxury" in that, if you will, is that the defense attorney had merit in his cause and justice was served in his victory. I agree with you that the defense attorney should act ETHICALLY AND HONESTLY in carrying out his legal obligation to defend his clients. If Mark truly agrees with that philosophy then he is only guilty of poor communication skills.....that can be fixed, character can't.

Mark Bennett said...

We're supposed to take lessons in integrity from commenters who don't have the integrity to even use their names (and who, for all we know, might be fifteen-year-olds commenting from their mothers' basements) while impugning the character of other people whom they don't know?


One of these anonymous cowards vilifies me while using the sobriquet "hpd101" and it's dirty pool for me to point out that all cops either lie or countenance other cops' lies?


Prosecutor Tarian understands my point that the defense, unlike the prosecution, doesn't have the luxury of going to trial only when it believes, beyond all doubt, that it is right; he/she agrees. Yet I suffer from "poor communications skills" (quite a flaw in a trial lawyer, let me tell you!) because you misunderstand me?


Granted, if I don't communicate on my audience's level, that's my fault. But not everyone is part of my audience, and I'm not going to dumb down what I write to explain myself to the lowest common denominator of commenters.

If you drop me a (non-abusive, non-anonymous) email and point out where you think I said whatever scurrilous thing you think I said about the truth, though, I'll do my best privately to explain it to you.

I'm done here. Enjoy your anonymous libels.

HPD 101 said...

Dearest "Really" formerly known as Mark Bennett,

First let me thank you for choosing me to rant over instead of my fellow blogger, Outraged.
I think "really" was a poor mantra selection on your part since reality is obviously not your strong suit.
1. Anonymity and integrity are not mutually exclusive terms. I would argue that an anonymous philanthropist has far greater integrity then one who throws his name out there for societal recognition. My age and venue are not relevant to the evaluation of your nonsense. As for impugning the character of people you don't know...I defer to you as the expert in that field (see point #2 below as an example of that character flaw).
2. Your assessment that ALL cops either lie or condone fellow officers who lie is overreaching and impugns the character of many many people throughout the United States that you do not know. Therefore, your 1st two (2) points are diametrically opposed and demonstrate your hypocrisy in character determination. I concede that it is "cowardly" to vilify anonymously.....but after all "I'm only 15 yrs old living in a basement" so cut me a little slack on that one.
3. It seems that the issue of a defense attorney not having the "luxury" of knowing his client is innocent beyond a doubt before he goes to trial AND conducting himself truthfully with honor and integrity during the process is what challenges you. We all agree on the 1st half of the issue but you seem to have difficulty expressing your agreement with the obligation of the 2nd half. That, sir, is the crux of the matter. If I "misunderstood" your verbiage on this point it would be fair to say your communication skills are, well, not up to snuff. Most GREAT trial lawyers would agree that they must convince the jury in a way that the average Joe understands; rather then to talk over or down to them. Juries often times have members that are not as "brilliant" as many lawyers portray themselves to be.
4. You address my previous point. Good job. Notwithstanding, this blog is not reserved for Mensa's. Your unbridled arrogance has once again reared it's ugly head. As for "dumbing down", you can stop now.
5. Truth is an absolute defense to libel.
6. I'd love to watch you in trial. Please notify the blogmaster when you're up again.


HPD 101

Anonymous said...

Mark, some of these anonymous commentators have plenty of experience in court. It might not be experience as a defense lawyer willing to overlook honest arguments in favor of "winning at all costs" but the oft laughed about code of ethics the BAR espouses seems to be discarded regularly by some in the profession. Unlike you, I would cringe from making sweeping generalizations but as someone able to communicate with a wider range of society than yourself (per your own admission), I respect the nuances of the language better.

In terms of anonymous bloggers, especially those actively employed by a law enforcement or government agency, I'd like to point out that most of them are prohibited by policy from publicly commenting in one form or fashion. Years back when I was an officer, my department was just as likely to discipline one of us for posting messages online that were pro-department as critical of most aspects. Calls to Randall Kallinen, Mike Skadden, and others in the ACLU were met with nonchalance that they could ever help us since we were the enemy. It's bold to attack someone unable to fight back openly (as you do) but for the most part, the attacks are nonsensical since they don't address the heart of the matters discussed.

So, as far as the long standing tradition of the internet is concerned, argue the point made, not the strawman about someone posting something anonymously. You post material like "it's dirty pool for me to point out that all cops either lie or countenance other cops' lies?" and wonder why they hold you in such low regard?!?

Look, here's a "nobility" scale for you:
1) representing the community (as AHCL does) is a pretty noble cause with relatively little personal benefit, more so because the openness of this blog will certainly result in retaliation by the winner of the DA's race (enough people know the owner now)

2) Representing the wrongfully accused for substantial financial compensation is somewhat less noble

3) Representing someone you know committed a crime and lying, misleading, and doing anything in your power (legally or not) to get them off the hook is far lower

I don't have the impression that you are in category #3 and for all your ego displayed online, you seem much nicer in person, despite your quirks at times. If AHCL sticks to the posted principles when in private practice, most officers will still appreciate the effort to stay above pack, some might say WAYYYYYYYYY above the pack but I'm not that cynical in my retirement.

A Harris County Lawyer said...

Okay, it is seeming more and more like I am having to play referee on this blog, and I'm not even getting to be the one writing offensive stuff.

I think that we need to understand that we should separate the man from the message.

Yes, Mark writes some very controversial things that tend to tick off alot of people. Hell, they tick me off quite a bit too.

But he's a good attorney. He's a smart attorney. And most importantly, he's an honest attorney.

For those of you who know who I am, you know that I've been going through a rather, um, "hectic" year personally, and Mark has proven time and time again to be a good friend to me through this soap opera that I call my life.

The vast vast vast majority of the Defense Attorneys that I know and deal with are 100% honest and diligent defenders of their clients. But we often see things from different perspectives.

My hope is that we can continue the great discussions that we have on this blog without turning them into personal attacks on people.

Especially good people.

HPD 101 said...

If you say that Bennett is honest that holds a lot of weight. I don't know him personally as you do. I was judging him based on what he wrote on the blog. Apparently, what he writes and who he is as a man are not the same. My apologies.....