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Do Less, or the Subtlety of Being Clever

Posted by Joshua J. Lax | Nov 28, 2023 | 0 Comments

Cynics, be they pundits, law professors, politicians, or members of the public, love to dismiss trials as some sort of game played by clever lawyers. The reality for those of us who actually do trials regularly is that trials are about the people involved in the case, not the lawyers. In practice, that means that games, gambits, stunts, splash, and attempts to be overtly clever often harm the client and the case more than help it. On the other hand, success in being clever comes from the points you make from a deep analysis of the evidence and the details you highlight to the jury.

Recently, I was in a New Jersey Family Court on a break from my trial of a domestic violence case (discussed elsewhere in this blog), and got to watch a portion of a cross examination during another bench trial. The trial was whether the defendant committed an act or pattern of domestic violence, and unfortunately, included sexual assault. The defense attorney wanted to elicit that the plaintiff had consented to sex on other occasions than those at issue in the complaint. Rather than ask that question, the lawyer tried to be clever, using some sort of euphemism for acts of intimacy in his questions. This in turn allowed the witness to quibble with the questions, which caused the lawyer to lose patience and ask more bad questions which the witness could continue to quibble. By the end of it, whatever point the lawyer was trying to make was lost. Rather than focusing on the point, which could have been accomplished in two to three questions, he was focused on himself and putting on a show. When this strategy inevitably falls apart, not only does the judge or jury stop listening, but the lawyer projects that they have no ammunition to challenge the witness other than picking on them.

As lawyers we are all told about the exploits of certain famous trial attorneys, be they Clarence Darrow or Johnny Cochran. Our inclination is to emulate them perhaps, which leads to misunderstanding actual trial wisdom. But the reality is, that most trials are won based not on some elaborate performance but on presenting the evidence in the most simple and effective way. And that simplicity comes not from the lawyer, but from the witnesses and the other evidence. Lawyers are often told, however, something to the effect that "direct examination is about the witness, and cross examination is about the attorney." That saying is often misunderstood by lawyers as implying that cross examination is a performance by the lawyer. Again, that is wrong. Take the cross examination discussed above. If you are trying to make a particular point on cross examination, what is more effective: one or two questions where the witness can only answer yes, or having to sit through ten to fifteen questions with lots of back and forth between the witness and lawyer, objections, and having to follow the lawyer's use of various phrases, chosen not for clarity but to puff up the ego of the attorney? In other words, the focus is on the lawyer during cross examination only to the extent that the lawyer describes the facts in their questions, and the witness is just supposed to say yes or no.

Another offshoot of this phenomenon is that the lawyer takes on too much for closing. They dangle little nuggets of evidence for the jury throughout the trial, and think that they can get up in closing and have the jury listen with wrapt attention as the lawyer "puts it all together." Wrong. Every point needs to be made clearly and decisively as the trial proceeds, as the jury makes its mind up about witnesses as it experiences their testimony, not when a lawyer tells them what they should think. In other words, all points have to be made through witnesses, not in the performance of the lawyer.

All too many attorneys save their points for the end. This is also a result of misinterpreting received wisdom, that a lawyer "puts it all together for the jury" in closing. Here again, the misinterpretation skews towards more performance by the lawyer, not less. See a theme? I have seen this phenomenon happen in almost every type of case, be it criminal, white collar, civil rights, medical malpractice, or government affairs, in both federal and state court, by lawyers of every background. In one of my high profile trials, the opposing side made an excellent point during their closing, but it had no effect because it came so late in the trial. 

The point is that good trial skills focus not on the lawyer's prowess and cunning in the courtroom, but on the witnesses and other pieces of evidence. In other words, when we get to trial, we should all do less, keeping the spotlight on the witnesses and not ourselves. 

About the Author

Joshua J. Lax

Joshua J. Lax is the head of the firm's Government Affairs and Defense Practice. Joshua combines his extensive experience in criminal and civil cases, including almost forty trials, to assist his clients present the best case possible. Joshua's work with hundreds of witnesses has given him the ty...


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