Our courts are called Circuit Courts because it was intended judges would “ride the circuit” thereby assuring they wouldn’t become too subject to i9nfluence by their hometown lawyers. It was foolish to think traveling judges couldn’t be influenced just as easily. 

      I found myself waiting for court to begin in a rural county courthouse one morning when I was a new lawyer still learning the lawyer’s credo, festina et expectare, hurry up and wait. After a good hour or more, a bailiff took pity on me and confided the judge was duck hunting and I might have a good while yet to wait. Time enough for him to take me under his wing and educate me the way things worked in his county.

      Bailiffs tend to be older, retired men and women, whose job it is to keep order in the courtroom. They direct people where to go, advise judges when everyone is present and ready to proceed, and attend to the needs of jurors. What they lack in formal legal training, they make up for with years of experience observing trials. They know more about how a given case is going to turn out than just about anybody and so can be of invaluable assistance to young lawyers who are polite and nice to them. The bailiff who told me the judge was duck hunting decided to clue me in on a few of the finer points of trial advocacy.

      As with most counties, one family managers to garners all the wealth and power and rises to the top. In this county, that family’s ancestry stretched back to the antebellum days of plantations and slavery. Their side losing but the Civil War was hardly a bump in the road for them. When it was over, and their slaves emancipated, they still owned huge tracks of land and branched out into law and politics to retain their wealth and power. The law branch represented railroads and insurance companies lining their pockets with exorbitant hourly fees. They passed down elective office to their kin like family heirlooms. As to whatever political offices they didn’t want for themselves, nobody could be so much as dog catcher without their blessing.

      The bailiff began my education by explaining how a visiting judge would find himself duck hunting during a term of court. He would have been approached casually, in an offhand manner, by one of the family lawyers and offered the opportunity to go duck hunting on the family’s private estate. Didn’t have a gun or gear? No problem, they’d loan him whatever he needed. They’d have somebody pick him up from his motel and drive them out to the estate. From there a tractor would carry him, a guide, and hunting dog out to a rustic duck blind before the crack of dawn. He’d have been assured they’d have him back in time for the start of Court. It was an offer no judge, away from home and stuck in a cramped, musty smelling hotel room could resist. To get out into nature and watch the sun rise over a pristine lake was a chance for a judge to be a real Southern outdoorsman.

      So, the judge would find himself, sitting in his borrowed camouflage hunting jacket and rubber boots, with his borrowed 12 gauge double barreled shotgun draped across his lap, starring at the red dawn reflecting off the tranquil water at the edge of paradise.

Meanwhile, not far from the blind, further down the shoreline, in a non-descript building, handlers would be chasing farm raised ducks down a hidden tunnel towards the edge of the lake. The panicked ducks, fleeing for their lives, would exit the tunnel and immediately take flight directly in front of the blind where the judge was waiting. The grizzled hunt guide waiting with the judge would have been knowlingly staring off into the distance before helpfully alerting the judge to incoming ducks. The judge, amazed by the guide’s knowledge of all things natural, would raise his shotgun and blam, blam the double barrels would discharge and a duck would fall out of the sky. The waiting dog would splash into the water and swim out to retrieve the Judge’s trophy.

How lucky the judge would feel having only been in the blind fifteen minutes and already having bagged himself a duck. Just about the time the guide would finish complimenting the judge’s natural shooting skills and admiring the fine duck he’d shot, out of the chute another couple of ducks would pop and the whole performance would be repeated. After a round of spiked coffee toasting the judge’s incredibly good fortune, the guide would suggests it was time to head on back into town so the judge could preside over court.    

      The Bailiff let that sink in for a minute before he continued. Later in the week, the judge would thank the family’s lawyers for his morning duck hunt. As he embellished the story of the two ducks he shot, he probably wouldn’t give a second thought as to why the family’s lawyers were gathered in his chambers on a late weekday afternoon. “Of course,” the judge would say, “I’ll be glad to hear that special matter that somehow didn’t get on the regular court docket.” All quite proper, gentile, and professional. Opposing counsel grateful he hadn’t wasted a trip to the rural county on his unscheduled motion wouldn’t realize it was he who was about to get plucked. He would simply assume that’s just the way things are done in the county’s Circuit Court and he’d have been be right.

Later, before the Judge left the county at the end of his term, he would receive two ducks all neatly wrapped in butcher paper and tied with string. Hand delivered to his hotel room to take home to his Missus. The deliveryman would casually comment maybe next time the judge came to town, it would be deer season. Left unsaid was that the family’s baited fields would be waiting. 

            Since jurors are literally asked to speak the truth, its best to remember being a criminal defense attorney entitles you to all the respect and credibility of a Nigerian telemarketer. Ordinary people can’t get past how criminal defense attorneys can represent people they know are guilty. I am a criminal defense lawyer and know this because when what I do comes up at social gathering, people always ask, “How can you represent someone you know is guilty?” I gave up trying to explain not all my clients are guilty years ago and now simply reply, “Representing guilty people is easy. They get convicted and sent off to prison. It doesn’t bother me in the slightest.” Then I pause for a moment before continuing, “It’s representing innocent people that’s hard, keeps me up at night, and has given me all these gray hairs.”

          The truth is lawyers aren’t soothsayers. They rarely know who’s guilty or innocent when a new case walks through their door. More often than people realize, lawyers don’t even get to decide who they represent. They get a call from a Judge who politely “asks” them to represent someone no lawyer in his or her right mind would ever choose to represent. Like the defendant I was appointed to represent accused of murdering a pawn shop owner during an armed robbery the day before Christmas.

I should have known what was happening when I got a call from a judge I didn’t have a case pending before the week after that Christmas. He asked, as if it was a personal favor, if I would represent one of the defendants in this particularly cold-blooded murder. We both knew I was ethically obligated to accept the appointment and, there was nothing I could say but, “Yes, sir, your Honor. It’d be my pleasure to represent this young man. I’ll drop everything and get right on it.”

And that’s what I did. I went out to the jail that very afternoon to meet my new client. At twenty something he was already a gang banger headed well down the career criminal path. Like most criminals, he thought he had everything figured out. He looked at me sideways with a smirk on his face as he told me the other two defendants made him do it, they threatened to kill him if he didn’t rob the pawn shop with them. I explained you can’t take an innocent life to save your own so duress is not a defense to murder. He looked at me with a smirk on his face like I obviously didn’t know what I was talking about and told me slowly, so I’d understand, he didn’t know the other guys were going to kill the owner. I explained during the commission of a felony, the hand of one is the hand of all and he was just as guilty as the guy who pulled the trigger in the eyes of the law. He wasn’t smiling when our interview concluded. My legal advice had done little to instill confidence in me as his lawyer and, more than likely, had planted the seeds I was just part of the larger conspiracy against him.

          My client and his co-defendants were smart enough to wear gloves, retrieve the spent bullet casing, and take the pawn shop’s security camera video tape with them after they murdered the owner. They left little forensic evidence for the police to go on. In fact, the police were stymied until they got a Crimestoppers tip from one of the co-defendants’ girlfriends who was pissed off he’d forgotten to pick her up some Christmas jewelry during the robbery. She called Crimestoppers looking for a reward and said she knew where the stolen loot was stashed. You’d think these criminal masterminds, having been smart enough to take the security tape, would have been smart enough to destroy it but, no, they kept it right in the sack full of  the guns they’d stolen.

Most security tapes are of poor quality, grainy, and with poor resolution but, not this one. It was crystal clear showing the three robbers nonchalantly enter the pawnshop and meander through like they were shopping until they made it up to the locked glass counter where the guns were displayed. Facing outward, the security caught the back of the owner’s head. There wasn’t any audio but anybody watching the tape could tell he was talking to them, probably wishing them a Merry Christmas and asking if they needed any help. You could see one of the co-defendants pull his gun and wave the owner off to the side. There was no camera in the back room where the owner was led showing him opening the safe or the execution style gunshot to the back of his head that took his life. What the camera did record was the other two robbers, one of them my client, still standing in front of the gun case gleefully picking out the guns they wanted like kids in a candy store. You never saw either of them so much as flinch when the fatal gunshot was fired, a fact repeatedly pointed out by the prosecutor.

          I represented this defendant to the best of my ability right through the three-day onslaught of damning evidence his trial turned out to be. The prosecutor began by presenting the holiday shopper who suspected something was wrong when he found no one was in the shop. Who looked around and found the body of the owner face down in a pool of his own blood in the back room. He played the shopper’s frantic 911 call. The prosecutor called the forensic team and introduced the crime scene photographs of the owner’s lifeless body. One CSI explained how the blood spatter evidence showed the owner was shot bent over in front of the safe he opened. A ballistics expert testified and showed a photograph matching the markings on the fatal bullet with a bullet fired from a gun found in the co-defendant’s apartment. The prosecutor called the medical examiner to describe in graphic detail how the bullet exploded through the back of the owner’s skull, sending the mushrooming bullet and bone fragments tearing through the owner’s brain before exiting his forehead through a much bigger hole and killing him i9nstantly. He then called the lead detective to explain how the police had no leads until they received the Crimestopper’s tip. Our defense lawyer’s objection what the girlfriend told the police was hearsay were overruled with the Judge helpfully instructing the detective, “Don’t tell us what she said, just tell us what you did based on what she said.” “Well, your Honor, we got a warrant, went to the co-defendant’s apartment, and found the bag, the guns, and the video tape right where she said they’d be.” The prosecutor introduced more photographs of the canvas bag packed with guns and, yes, the security camera video tape, all hidden up in a ceiling panel in the co-defendant’s apartment. He didn’t have to, but for good measure the prosecutor traced every one of the guns found in the bag back to the records of the pawn shop. Then, and only then, did he play the video tape for the jury. By the time the tape was finished, everyone in the courtroom could see the guilty verdict etched on the juror’s faces. The prosecution rested.

          Now it was the defendant’s turn to present evidence. A lawyer can advise a client whether or not he should testify, but the decision remains the clients to make. Needless to say, I advised this client against testifying. Advice he promptly ignored, convinced the jury would be swayed by his story of how he was forced to commit the robbery. All his testifying did was give the prosecutor the opportunity to replay the tape again, and again, highlighting all the damning parts, especially him not flinching when the fatal shot was fired. It took three days to pick the jury and try his case. It took the jury less than an hour to convict him and both co-defendants  of murder, kidnapping, and armed robbery.

          Before a Judge passes sentence, it is customary to ask the accused if he has anything to say. called an allocution. When the Judge asked my client if he had anything to say, the client stood up with that same smirk on his face he had when I first met him in the jail,and said, “First of all, your Honor, the prosecutor didn’t have nothing on me. He had no evidence I kilt that man.” The little artery on the Judge’s forehead began to pulsate as I thought to myself, so much for acceptance of responsibility. “Yeah, and the prosecutor he discriminate against me cause he didn’t charge me with kidnapping til after I said I didn’t do it and that proves he was vindicative against me.” The Judge’s complexion reddened and I thought so much for showing remorse. And, then he said, “And my lawyer, Judge, he was incompetent. He was taking notes during the trial and that proves he wasn’t prepared.” By this time the Judge’s eyes were bulging out their sockets. The Judge sentenced all three defendants to life without parole for the murder, 30 years for the kidnapping, and 25 years for armed robbery, all sentences to run consecutively, one after the other. It was the maximum sentence he could impose and, in case you wanted to know, it didn’t bother me in the slightest.

            Being the lawyer for this defendant was easy. There was nothing I or any lawyer could have done for him. I dutifully filed his appeal so an appellate public defender could be appointed to argue his unprepared, note taking lawyer was ineffective. As far as I was concerned, I did my professional duty and never lost a minute’s sleep over the sentence he received or my role in his trial. Still, I wonder what that jury thought. They were never told I was appointed to represent him. I’m sure as they sat there in the jury box, they wondered how I could represent someone I obviously knew was guilty. They never knew I never had a choice.

          The experience wasn’t all bad. They call it practicing law for a reason. I got to practice my lawyer’s poker face not respounding  to damning evidence during a trial, a valuable trial skill every lawyer must learn. Also on the plus side, the Judge, who did know I was appointed to perform this thankless task, would owe me an unspoken favor that could someday result in him ruling in my favor on a legal issue that otherwise could go either way. And I got to know the prosecutor who I would try other cases with over the coming years. Cases in which the evidence wouldn’t always be so one-sided, and thankfully, often with a different result. We came to respect each other’s trial skills and became friends, but thereafter, no matter what the case was we tried together, or how it was going, we would always both get a good laugh when he would quip I was unprepared because I was taking notes.     

        There’s plenty of advice around from lawyers more successful than I am about how to win cases, but very little advice about how to not let losing a trial make you a loser. Recently I found myself licking my wounds back in my office having lost a trial I thought was winnable.  My friend, Donald Howe, called to ask how my trial went and I told him the sad news. He told me a story, as the Howes are wont to do, that after he’d gotten his feet wet a time or two in the courtroom, he asked his father, renowned trial lawyer, Gedney M, Howe, Sr., “Pops, when will I be able to call myself a trial lawyer?” Big G thought on it for a minute before replying, “Son, when you’ve taken a case you feel pretty good about to trial, and your opening statement flows off your tongue, and all your witnesses hold up for you, and you tear the defense witnesses up on cross examination. When the judge and the defense lawyer are telling you what a great job you’re doing before the jury comes back and rules against you …” he paused, “When that’s happened about 7 or 8 times, then you can start calling yourself a trial lawyer.” 

My father wasn’t a lawyer, far as I know nobody in my family had ever been a lawyer before me. Still, I can’t remember ever wanting to be anything but a lawyer, a trial lawyer. I read books about lawyers, watched t.v. shows and movies about lawyers, and, when I got older, I went down to the courthouse in my hometown and watched real lawyers trying cases. I know I had grandiose visions of someday being like Atticus Finch, handling headline murder cases, or Melvin Belli, the King of Torts, winning million dollar verdicts. Wouldn’t it be nice if that was what being a trial lawyer really was? It’s not. Being a trial lawyer is not fiction, Hollywood, or easy street. In the real world it’s often like training to be a martial arts fighter able to break boards with a your bare hands. You first need to develop a thick skin.     

Somehow I scraped through law school and became an associate in Senator Isadore E. Lourie’s law firm in Columbia, South Carolina.  In those days a summons, complaint not served, was filed whenever a new client signed up with the firm. The filing started the docket clock ticking, but later, when the facts didn’t pan out and no easy settlement was on the horizon, the file would be passed down to the youngest associate for trial. Talk about a baptism by fire!

I think I was 0 and 15 for my first trials. It was downright depressing and caused me to question whether I’d chosen the right profession. When I spoke of my concern with my good friend, Professor Phillip T. Lacy, he let me in on a secret I’ll share with you.  “Being a trial lawyer is like playing baseball. There’s 165 games in a season and, if you’re batting .350, you’re a star.”

Fortunately, my slump ended.  Oh, I’ve struck out many times since then, but I’ve also gotten a lot of hits, a few home runs, and I’ve even stolen a base or two along the way. If not always for big money or notariety, often enough for the satisfaction of justice served. Here I am 40 years later in my career, still standing in the batter’s box, choking up on the bat, and staring down the pitcher believing I can knock the next pitch out the park. I am glad I stuck with it. Proud after all these years to finally be able to think of myself as a trial lawyer.        

The best advice I can offer to anyone masochistic enough to aspire to be a trial lawyer is never let not winning make you a loser. Do not allow fear of losing keep you from bringing a deserving case to trial or cause you to accept an unfair settlement.

Letting go of the inflated notion your trial skills will make the difference in every case helps when you lose a trial. Francis L. Wellman, in Success in Court, 279 (The Macmillan Company 1941), reminds us, “[t]here are always two sides to every lawsuit and a lawyer on each side. Only one of these lawyers will win and it will not always be the more skillful.” In the majority of cases the simple truth is your skills as a trail lawyer are probably far less important than you think. Harry Kalven, Jr. & Hans Zeisel, in The American Jury, 351 (Little, Brown & Co. 1966), conducted the most extensive research project ever attempted on juries and concluded that only in a small percentage of close cases did the quality of the lawyer’s performance change the result. Statistically he concluded counsel’s abilities had only a 1% impact on the end result. And, here’s the real kicker, they found in reality 90% of cases win or lose themselves. For those of you who subscribe to Vince Lombardi’s famous saying, “winning isn’t everything, it’s the only thing,” you should remember what Edward Bennett Williams, a famous lawyer in his own right, said after he hired Lombardi to coach the Washington Redskins. “If you turn over any given football team to the best coach in America, he may win two more games than the most incompetent coach would with the same material.  Likewise, if you take a hundred criminal cases and assume that fifty of them should be won on the merits and fifty should be lost, and then turn them over to the most able and experienced advocate in America, he will probably win sixty and lose forty.  Turn the same cases over to the most incompetent trial man and he will win forty and lose sixty.  The concept of a great trial lawyer who always wins has no foundation in reality.” 

If that doesn’t convince you you’re not a loser if you don’t win every case, consider Albert A. Workman, in Lawyer Lincoln, 246 (Carroll & Graff Publishers, 1936), researched the court records and found, of the 82 jury cases legendary trial lawyer Abraham Lincoln tried for which records exist, he only won 43. In the real world of being a trial lawyer always remember no matter how good a case you think you have, no matter how good a lawyer you think you are, if you take a case to a jury you never know what they will do. That’s the reality of the profession you have chosen.

They call it practicing law for a reason. Questioning yourself, hard as it may be sometimes, can be a necessary and good thing. Should I have seen this loss coming? What could I have done differently to have prevented it? Should I have recommended a settlement more forcibly? Should I have taken the case in the first place?  These are all questions you should ask yourself after every case. The cases you win and those you don’t. Instead of doubting your trial skills, you should view every adverse verdict as an opportunity to honestly review your strategies and techniques and modify them, so you can do better the next case. 

It also helps if you value the attributes of good trial lawyers that matter most. It turns out winning all your cases is way down the list. Clarance Darrow, who not only lost the famous monkey trial but many other high profile cases of his day, is remembered not for his courtroom victories but for his devotion, passion, and courage in the courtroom for the causes he believed in. A Missouri Bar Prentice-Hall Survey: A Motivational Study of Public Attitudes and Law Office Management, 67(The Missouri Bar 1963), found that, while lawyers tend to believe winning is extremely important to clients, clients listed “results” as a cause of dissatisfaction only 2% of the time. The survey found clients value honesty, compassion, perserverance, hard work, and courage far more than your win/loss ratio. 

It also helps to learn humility. It will serve you well. Believing you have to win all your cases, at all costs, leads to an inflated ego, arrogance, lack of civility, and ethical breaches all of which are the kiss of death in a courtroom. It also helps to learn forgiveness. You can start by forgiving yourself. You have enough stress with the judge, opposing counsel, and your clients chewing on you all the time, you don’t need to add to the stress by beating up on yourself. Not winning doesn’t mean you’re a bad lawyer, it just means you’re a trial lawyer. And it also helps to learn compassion for the far more real losses your clients suffer. Compassion starts with putting your own ego aside and listening. Talk to your clients, jurors, and other lawyers after the trial and listen to what they have to say. It will surprise you and open your eyes, just don’t forget to bring that thick skin we talked about earlier.  

But most of all it helps to have fun practicing law. Know as bad as losing a case feels, there is no better feeling than winning a tough, hard-fought case. You could have chosen to be an accountant and found only a modicum of pleasure balancing the books at the end of each month. But you chose to be a trial lawyer, it’s an up and down roller coaster ride worth the trip. At first I tried cases with older, more experienced lawyers who taught me. Later I tried cases with partners and friends and we taught each other. Today I try cases with young associates or young lawyers who are themselves eager to learn. Each lawyer I have ever tried a case with has had stories to tell that I enjoyed listening to throughout my years of practice. I have always found the camaraderie of judges and fellow trial lawyers, plaintiff and defense lawyers alike, to be the best part of practicing law.  

All trial lawyers in their heart of hearts are story tellers. Take care crafting your story. Like all good stories it should be honest and from the heart. Make it a story you are proud to share on those nights when you celebrate at the local watering hole before the jury verdict comes in. Make it a story of courage. Of not letting fear of not winning make you a loser. Too few lawyers talk about the cases they didn’t win like not winning is something to be ashamed of.  It’s part and parcel of being a trial lawyer. I say roll up your sleeves and show your battle scars proudly.