Trial Is Not About Scoring Points
I’ve had this conversation with a few clients regarding their cases this year, and the issue does seem to come up now and then. So for the definitive blog post on the subject: Trials are not about scoring points.
What do I mean about “scoring points?” A point is a successful attack on the other side or the other side’s witness. Get a cop to admit he was wrong about the time of day? That’s a point. Make someone cry on the stand? That’s a point (maybe?). Get some evidence suppressed, regardless of its quality? Point. Your objection was sustained? Two points for
Gryffindor the defense!
Here’s what doesn’t happen: At the end of the trial all the scores are tallied up. Whoever has the highest score, the jury declares them the winner in the form of “Guilty” or “Not Guilty.”
Here’s what actually happens if you’re trying to acquire points: You pick weird fights and score meaningless victories. The jury listens respectfully and then during deliberations agrees this was a really easy case for them. Then your client goes to jail for a while.
Countless times I have had clients come in and talk about the failings of the police officers and the witnesses. And sometimes, those mistakes do matter for a case. But very often, those missteps and typos and flagging memories don’t matter at all. Because my job at trial is not to score points.
My job at trial is to win. I don’t care about anything else. They can make my witnesses cry and they can get all their objections sustained. If the jury comes back “Not Guilty,” I win and they lose and my client gets to go home to his family.
My eye is always on that single prize: My client exonerated at trial. If the battles I pick and the blood I draw gets me there, it was a fight worth fighting. If it does nothing to move my case forward, it gets left on the cutting room floor.
I’m sympathetic to my clients because 1) they were usually at the scene of the incident and so they know everything that happened, and 2) they have had time to reflect on the injustices done to them. And sometimes it’s a bitter pill to swallow to be told that we’re not going to talk about the cop was rough or rude to you when you were being arrested. It’s probably true, but it won’t help at trial.
What does win at trial? It’s all about the story. The narrative. The prosecutors have a narrative they’re telling, about the defendant being a criminal type that broke the law and needs to get punished for breaking the law. And it’s an easy story to sell because the defendant is on trial for breaking the law! Assuming the jury believes that story, no unpleasantness at the police station will affect the final verdict.
The defense’s job, my job, is to provide a better story. Every question I ask and objection I make and motion I raise is about emphasizing that alternative story. If a potential action doesn’t help that story, if it’s distracting or it opens up questions we don’t want to address, it doesn’t get used. Everything is for a singular purpose: tell the story that will lead to a Not Guilty verdict. I’ll give you an example
Prosecutor’s story: “Mr. Jones was driving down Highway 99 with a broken taillight. He was pulled over, the trained officer smelled alcohol, and Mr. Jones wasn’t able to keep his balance on the side of the road. He was brought to the police station and provided a breath sample of .11. In Seattle any blood alcohol content of .08 or higher means someone is guilty of DUI. Mr. Jones made the choice to drink and drive and is guilty of DUI.”
That’s a simple, fine story. What do I care about there? Whether the taillight was out? The jury doesn’t care. Whether the officer had the car towed? The jury doesn’t care. If my guy has never been charged with DUI before? There’s a first time for everything. If I bring up irrelevant facts or pick unimportant battles, it looks like I have no case. The jury’s decision is easy there. Instead, I need to tell a story.
Defense story: “Mr. Jones had a glass of wine at home and began driving to his friend’s house. His driving was perfect, the officer only pulled him over because of a broken taillight. Mr. Jones had knee surgery a few months ago and is still unsteady on his feet, which Mr. Jones told the officer but the officer neglected to mention in his report. The officer took Mr. Jones to the station and utilized a machine that had been repaired multiple times in the last two months, was put out of service after Mr. Jones provided a sample, and is already 10 years out of warranty. The officer could have obtained a blood sample but didn’t want to do the work to get accurate results. The machine is not reliable and the prosecution has no evidence of any bad driving. The prosecution needs a lot more than this to convict someone of DUI. Tell them to do the work to get better evidence next time, and vote not guilty.”
Which story is better? Who knows, but the focus is on attacking what matters: quality of driving, balance issues on the side of the road, and the purported amount of alcohol in the system. Address those core issues and the correct verdict will follow.
If you or someone you know wants a lawyer focused on winning and telling your story, feel free to give me a call.