Great trial lawyers have not simply mastered the rules of evidence. Great trial lawyers understand human nature. While expertise in evidence is necessary to execute the mechanics of a trial, understanding people is necessary to persuade. Failing to appreciate the human element of trials results in bad advice and bad advocacy.
Take, for example, the burden of proof. In a criminal trial, the prosecution must prove its case beyond a reasonable doubt. Plaintiffs in civil trials have a lesser burden; they must prove their case by a preponderance of the evidence. If the prosecution or plaintiff fails to carry its burden, the defense wins. So what is a defendant's burden? Unless we are discussing an affirmative defense (e.g., statute of limitations), there isn't one. Countless textbooks and commentators instruct defense counsel to exploit this "advantage" with versions of the following: "As Mr. Jones sits here, ladies and gentleman, he is clothed in the invisible mantle of innocence, as you must regard him as innocent unless and until his guilt is proven beyond a reasonable doubt."
Lawyers who understand human nature ignore this advice. Great trial lawyers representing defendants assume the burden of proving their own defense. To see this in action, we will look at the Michael Jackson child molestation case from 2005. By the time Jackson's trial was set to begin, he had essentially been convicted by the media. A well-publicized documentary included a Jackson interview where he explained how he loved sharing beds with children: "I sleep in the bed with all of them.... Then we wake up at, like, dawn, and go in the hot-air balloon ... It's very right. It's very loving. That's what the world needs now. More love. More heart." It was also revealed that Jackson had previously settled a civil lawsuit in a case accusing him of molesting a fourteen-year old boy. While the law provided Jackson with an "invisible mantle of innocence," the reality was clearer: Jackson faced an uphill battle at trial.
Jackson was represented by Thomas Mesereau, a master defense lawyer whose clients include both celebrities and poor death row inmates. In the Jackson trial, Mesereau ignored the conventional doctrine of dwelling on the prosecution's burden, and he instead promised the jury that he would be the bearer of truth:
If he [the prosecutor] is to be believed, Mr. Jackson molested children, and gave a cancer-patient child alcohol to reduce his inhibitions and molest him. And I'm here to tell you that these charges are fictitious, they're bogus, and they never happened....
And I say to you right now, I am going to make some promises in this case, I am going to fulfill them, and I want you to judge me accordingly at the end. These charges are fake, silly, ridiculous --
At this point, Mesereau was interrupted with an objection for being "argumentative." The objection was sustained, but so be it. Mesereau powerfully opened his case by assuming the burden of proof and persuasion. Mesereau's theme throughout trial was that the accuser and his mother were money hungry con-artists who set up Jackson. And in his opening statement, Mesereau assured the jury that he would prove all of this:
The [accuser's] mother was extremely eager to meet Michael Jackson. Because we will prove to you, the mother, with her children as tools, was trying to find a celebrity to latch on to. They were trying to find a celebrity to create their life and give them advantages they didn't have. And they were looking far and wide for that celebrity. And unfortunately, for Michael Jackson, he fell for it....
And Neverland, we will prove to you, is not a haven for criminal activity, a lure for molestation, a magnet for crime. It is none of the things the prosecutor has tried to tell you it is.
We will prove that in this case.
Even on issues where the prosecutor had the sole burden—whether Jackson molested the alleged victim—Mesereau assumed it was his burden. Mesereau could have opened with something like, "Ladies and gentleman, there is simply no evidence that Mr. Jackson molested anyone or committed any crime. The prosecution is required to prove its case beyond a reasonable doubt, but you will find there is simply not enough evidence to convict Mr. Jackson of anything." But instead, Mesereau assumed the burden of proof and assured the jury that he would prove Jackson's innocence:
I am going to go through the events of what happened at Neverland and elsewhere so I can prove to you in this trial that there was never any molestation or any crime of any kind committed by Michael Jackson.
Some commentators would argue that Mesereau was taking on too much. If the defense is not obligated to prove anything, why assume any burden? If the defense is only required to seek an acquittal, why set out to prove Jackson's innocence? The answer is simple: Mesereau understands people and understands his obligation to persuade.
To appreciate the value of prosecuting a defense, let us now examine a more conventional opening statement. To do that, we revisit United States v. Martha Stewart. The Stewart case was chronicled in a prior post. We look this time at the opening statement delivered by Stewart's lawyer, Robert Morvillo. The late Robert Morvillo was a high-profile defense lawyer who, by the time Stewart's case went to trial, was sixty-five years old and rarely tried cases. Stewart was charged with lying to federal investigators about why she sold ImClone shares, and Morvillo's opening began with the following:
MORVILLO: Thank you, your Honor.
May it please the Court, I want to start off with a very simple thought, and that simple thought is that Martha Stewart is innocent of all of the charges here. And it is my view and I predict that after you have analyzed all of the evidence in this case, testimony and the documents, you will agree with what I just said.
This is weak. Morvillo's opening statement followed a forceful opening statement from the government that included the following: "Ladies and gentlemen, lying to federal agents, obstructing justice, committing perjury, fabricating evidence and cheating investors in the stock market, these are serious federal crimes, and during this trial we are going to prove all of it to you beyond a reasonable doubt." And what was Stewart's lawyer's response? A simple thought? Is Stewart's innocence simply a thought? An abstract idea? Jurors look to decide the truth. Jurors are not in the business of considering "thoughts."
Immediately following his "simple thought," Morvillo apologizes to the jury:
Now, ladies of gentlemen of the jury, I apologize for being the third speaker, and I apologize for having to go over some of the same ground that my predecessors have gone over. But I tend to have a louder voice, so it should prevent you from dozing off.
What is the jury to think here? That this lawyer is going to cover the same ground as the previous lawyers but the volume of his voice—not the substance of his words—will keep them awake? These comments add nothing to Morvillo's opening statement. If anything, this windup hurts more than it helps.
When Morvillo turns to the substance of the case, it only gets worse. He begins by highlighting that the government's evidence consists of circumstantial evidence instead of direct evidence (as if jurors care about, let alone understand, this distinction so early in the case). He then says that Stewart's statements were not "deliberately" false:
This is an unusual case, not because Martha Stewart is a famous person, but because there will be no direct evidence introduced by the government that Martha Stewart conspired to obstruct anything, that what Martha Stewart told the government during her voluntary interviews was deliberately false, or that Martha Stewart was trying to fool investors in her company by accurately denying guilt and explaining her innocence in June of 2002.
Now, this is a circumstantial case. For example, the government will argue that you can tell from telephone slips who was on the telephone and what was said on the telephone. That's what the government is going to argue here and that's circumstantial evidence, not direct evidence. You must examine the quality of this kind of evidence very, very closely because circumstantial evidence almost invariably permits different inferences to be drawn, sometimes innocent, sometimes guilty inferences....
This is not trial advocacy. This is the type of argument made to judges in a pre-trial hearing. Trial advocacy is more along the lines of, "The government claims, based on some telephone slips, they know who participated in certain conversations and what was said. None of this is true. The government does not know what was said at all. The federal government, with all of its resources, did not wiretap anyone in this case. They did not record a single conversation in this case. So for these government lawyers to claim they know what was said is deceptive. And, to the contrary, we will prove to you through documents and witness testimony that what the government claims was said is totally false." (The comment about the prosecutor being "deceptive" could draw an objection, but so be it.)
In opening statements, it is essential to identify and address any weaknesses in your case. The purpose is twofold. First, it is necessary to maintain credibility with the jury. If the weaknesses are not identified, the jury may conclude there was an effort to withhold or conceal the truth. The moment credibility is lost, lost too is the ability to persuade. Second, by identifying the weaknesses, the lawyer can explain or contextualize them—in political speak, the lawyer can control the narrative.
In the Stewart trial, Morvillo acknowledged the weaknesses, but he did nothing more. There was no effort to frame them in a favorable light. He simply identified some bad facts, but left it to the jury to decide their importance:
Martha Stewart went to that meeting thinking that she had to convince the government that she was not tipped by Sam Waksal; that was her focus. She may have actually made some mistakes on the dates and times and events during the course of that meeting, but whatever mistakes she made were not deliberate false statements. And you will hear them. It is not something we are going to try to conceal. Everything that happened at that meeting is going to be admitted into evidence in this trial. And you can make your own decision as to whether or not those were just mistakes or whether or not she was trying to deliberately mislead the government.
Again, this is not advocacy. Advocacy uses supposed weak facts and frames them as nonevents or, even better, an advantage. Morvillo could have said something along the lines of, "Martha Stewart voluntarily met with the government, and you will hear what was said during that meeting. And, like all of us, Martha Stewart's memory is imperfect, and she got some dates and details wrong. But ladies and gentlemen, Martha Stewart was one hundred percent truthful on the issues being investigated. The investigators wanted to know whether Sam Waksal tipped Stewart off. That never happened. The prosecutor will admit to you that never happened. But Stewart was famous and Stewart was in the government's cross-hairs. So the government took Stewart's imperfect memory and charged her—not with any crime related to her sale of the ImClone shares—but with crimes related to her imperfect memory when she voluntarily met with government's investigators."
An example of a lawyer turning bad facts into advantages can be found by looking at two similar cases tried by the same lawyer, Mark Lanier. Lanier is a top plaintiffs' lawyer, and he tried two Vioxx cases against Merck—one where the decedent was young and healthy, and one where the decedent was old and unhealthy. The allegations were that Merck failed to accurately disclose the heart attack risks associated with Vioxx.
In the case with the young and healthy decedent, Lanier used these "good" facts to his advantage:
Is this a fella who's one pork chop away from heart attack? No, he's not. He's in great shape. [The decedent's] in great shape. [The decedent] goes in there, and they check his cholesterol. His total cholesterol is 169. That's a thumbs-up. His high-density cholesterol, his HDL, is 43. That's a thumbs-up. His pulse is 58. That's a thumbs-up. His blood pressure is 108 over 64. This guy is the picture of health.
They're [Merck] going to blame the victims. "Oh, this must be because [the decedent], even thought he exercised daily, even though he ate right, even though he wasn't overweight, even though he had his cholesterol in check, even though he was the picture of health in every area except his arthritic hands and low blood sugar, even though he's the picture of health, this must be his fault."
In Lanier's second Vioxx trial, the decedent was old and unhealthy; he was obese, he was diabetic, he had high cholesterol, and had a family history of hear attacks. Lanier used these "bad facts" as an advantage:
Look, we all live on a table or on flat land, but there's a table's edge or cliff, and that's the heart attack. It's the leading cause of death in America. Some of us live real close to the edge, and other people live far away. If you are a 17-year-old kid, you're far away from the edge, but as you get to be 75, you're closer. Male, closer, diabetic, closer, smoker, closer, and all of these things move you closer to the edge of the cliff.
Now let me tell you about Vioxx. Vioxx is a shove toward the cliff. If you're a 17-year-old guy—girl, it doesn't matter—you probably could take all the Vioxx you wanted. It's not going to bother you: You can take that stuff, you can take that shove, but you take someone who's right up against the edge of the cliff, and Vioxx is the last thing in the world that person needs to be taking. I'll prove that to you, and I'll prove that [the decedent] was right up at the edge of the cliff, and he had no business being on that drug.*
Lawyers like Lanier and Mesereau have mastered the rules of evidence. But as important, they understand people. And it is knowing both that makes them master persuaders.
David Sugden is a shareholder at Call & Jensen. He can be reached at [email protected].
* For an excellent discussion of Mark Lanier's opening statements in the Vioxx cases, and trials in general, please see Turning Points at Trial by Shane Read.
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