Please tell us about your background, including how long you have been involved in criminal defense, and about your current practice.

 I hung out a shingle in Lansing right after graduating from Cooley Law School.  Less than 2 years later, Dean Don LeDuc showed up at my door and asked me to try being a law professor!  Though the idea had never entered my mind, I decided to give it a try.

 In the almost 30 years since, I have built and managed the Trial and Litigation Skills programs at Cooley.  [Though along the way I have also taught Property, Secured Transactions, Evidence, Professional Responsibility, and been a clinic director!].  At the same time, I have worked as a trial lawyer and as a consultant, participating in the preparation and/or trial of hundreds of cases.

 During law school I believed I would never want to do criminal defense.  I appreciated the people who did, but thought it was not my thing.  That ended when I took my first criminal case.  Once I really understood the gross imbalances in our system, I couldn’t imagine doing anything else.  Why can’t we just play fair?

 After I attended the first ever Trial Lawyers College in Wyoming in 1994, and then became part of their training faculty, I began jury and trial consulting, focusing on the use of the action methods that are the center of the TLC philosophy.

 That is where I focus my energies now, helping lawyers become better at understanding and communicating the essential stories that touch jurors’ values and lead them to justice.  We do this in preparation sessions, group discovery sessions and focus groups, and in jury selection itself.

 I am also a frequent trainer and speaker at continuing education programs for lawyers all over the US.

What are some key things lawyers can do to become more effective in defending clients?

 Quit being a lawyer, and quit trying to ‘get anywhere’.  Don’t answer the government.  Find the story of your case and keep telling it.  When they answer you, you are winning.

 When we start to understand people as people - with acceptance that all of their actions come from their life experiences - we expand our ability to help others see the injustice in a situation as we do.  Separate the person from their behavior, and focus our and jurors’ attention on correcting the wrongs that flow from the bad behavior.  It is the fair thing to do.

 Acceptance, fairness and credibility will take you much farther toward justice.

 Understand that the jurors are your only salvation, so at trial they are the most important; and we can only help the accused by helping the jurors get what they need.  Find out what is important to them, not what you have decided should be important to them!

Please describe an interesting or unusual case, or two, illustrating successful techniques.

 An integral part of the preparation process is re-enactment of critical scenes – not just of the events giving rise to charges, but also other ‘back story’ moments that flesh out the ‘who’ and ‘why’ of what’s going on.

 A case that taught me to work through re-enactments with the accused and witnesses early and often was a case where we waited until the day before trial to do it.  Though we had interviewed James many times, it was not until acting it all out in preparation for testimony that we heard – for the first time – about the tall thin African-American man, in a blue v-neck sweater and gray slacks, with a red and white gym bag between his feet, a quart bottle of malt liquor in a paper bag, and a box of chicken on his lap.

 This man was not in any police report.  No name, no statement from him, nothing.  James had never mentioned him to us.  But re-enactments help us access memories that don’t come to us any other way.  And suddenly James was telling us he had just remembered this guy.

 In this case, James’ guilt or innocence depended entirely on what he said to a teenage girl who for a few moments was standing behind the bus bench James and the man were sitting on.  If, as the detective claimed, James had told her to ‘go ahead and make the sale’, James was guilty.  If, as James claimed, James had told her to ‘get the hell away from us’, he was innocent.

 The detective claimed he heard what James said, from about 50’ away, inside a running car, when James turned away from him to speak to the girl.  The man on the bench was less than a foot away, on the side where James turned to speak, and had no bias or interest in the case.  Of course we would never find him, even had there been time to look.  But it was this missing witness, who the police didn’t even bother to ask his name, that was the key to the case and the best evidence.  No juror would forgive the police sending him away without a thought to his being the best witness.

 Not guilty.  3 1/2 minutes.  Jurors created a committee to meet with James after the trial and get him in a literacy and job training program so this would never happen to him again.  My favorite after-trial action by a jury ever! 

 They were moved to do this after we revealed in trial that James was at that bus stop on that day because he used to work at the chicken joint on that corner.  The police didn’t believe his reason for being there, and it was part of why they thought he was in on the crime.  James had told them he walked close to a mile from a friend’s house to take the bus home, because he knew how to get home from there.  He didn’t take a bus from any of the stops closer because he was illiterate, and too ashamed to ask for help or directions about what bus to take.  His ability to be vulnerable and admit that in trial was part of what made him believable, and triggered the jurors’ compassion.

 And that leads to the other biggest thing: honesty.  Brutal honesty.  If we do not remain credible every second, we lose. 

 In a case on which I consulted recently, the accused’s acquittal on conspiracy to commit murder was directly connected to his willingness and ability to admit in his testimony that he did believe he was joining a conspiracy to transport and sell drugs [he was not charged with that].  He did not know of and did not intend to join a conspiracy to kill anyone, and specific intent to kill is required.  His honesty about how and why he agreed to do what he did bought him credibility points on the things he denied.  He was acquitted.  His co-defendant, who had hired him, was convicted on all counts.

What trends, good or bad, do you see in our criminal jurisprudence?

 I guess this is the moment for the ‘old fart’s lament’ that back in the day we had a Constitution that counted for something . . . and now we have to fight so hard just to get past ‘it’s a technicality’.

Do you have any suggestions for new lawyers?

 Same as my suggestions for ALL lawyers.

 Work with other people.  Don’t rely on just your own ideas and judgments.  We all get too caught up in our own view of things, and then become blind to what the jurors see and need.

 Explore and prepare in action; you have to do your work in the courtroom in action.  When you prepare only by reading, thinking and writing you are only partially prepared.  It’s as wrong to go to court without physical preparation as it would be to play a tennis match without ever having picked up a racket.  As especially, if the only time you ever practice voir dire is in a trial, you will never acquire good skills.

 Learn to LISTEN, deeply and thoroughly, with acceptance and validation for everyone’s feelings and opinions, as they come naturally from their life experiences.  Move toward and encourage discussion of what is ‘bad’ for you . . . or you will never find the answer to how that ‘bad’ truth helps move your story forward.

 Anticipate your meeting with potential jurors with happiness, gratitude and trust.  They are the team you need.  If you meet them with distrust and negative assumptions, that is what you will get back.  Voir dire and the trial should be an inclusive process.  Look to form a group, rather than looking to get rid of the bad people.  Look for opportunities to use what you learn in voir dire to continue your relationship with individual jurors during the trial.

 Be yourself – everyone else is taken.  Let your passion show.  If you don’t believe, they won’t believe.

 In the words of Bill Sellars, a famous Texas trial lawyer:

“Move the world
a measurable amount
in the direction of truth and justice
by the influence of your life.”

by Neil Leithauser

Associate Editor

Subscriber Comments

• You must be a subscriber to view comments