“Amateurs talk strategy and professionals talk logistics”
- Omar Bradley, U.S. World War II General
It is more important to focus of effective advocacy skills than trying to win your trial, or even worse trying not to lose your trial. Every attorney has made the mistake of raising too many defenses or putting on too much evidence, which ended up hurting them more than it helped. They do this because they are afraid that if the jury returns an adverse verdict their client will blame the attorney for failing to raise a defense or not putting on certain pieces of evidence. The fear of an adverse verdict makes attorneys forget to Speak With A Purpose, and just say as much as possible. By focusing on your advocacy skills, and not the outcome your decision will be based more on RATIONAL THAN FEAR. Using consistent Rules Of Advocacy allows you to evaluate whether following—or deliberately breaking—a rule helped or hurt your case.
Below are two examples when I broke my Rules Of Advocacy.
EXAMPLE ONE: STRATEGICALLY BREAKING THE RULES
(Ask Leading Questions)
I was defending a client in a battery case where the defense was the Defendant had to push the alleged victim away from him because she was charging at him. My client was previously a witness against her son in a case where her son went to jail. The officer admitted that this was motive for her to charge at him. My client didn't know the alleged victim that well, so I figured he couldn't have a lot of motive to push her. I broke my rule of Asking Leading Questions, and I asked the officer what was my client's motive to push the alleged victim (an open ended question). The officer responded "she was charging at him". This was the best response of the trial.
EXAMPLE TWO: BREAKING THE RULES IN HOPE OF A GOOD ANSWER
Maintain Witness Control: If the witness gives you a gift move on, so the witness can't take the gift back
In another case my client was alleged to have ran from an officer trying to serve a warrant on him. When the officer caught him he arrested him for Resisting an Officer, but did not serve the warrant on him. Also the prosecutor did not bring the warrant to the trial.
On direct the first officer said my client was running from him while they were trying to serve a warrant on him. I then cross-examined him stating they he does not have that warrant that he was going to serve on the defendant, which the officer confirmed. Then I cross-examined him that "in fact you did not even arrest him on the warrant," which he again confirmed. Finally I cross-examined him stating "so you arrested my client for resisting an officer based on a warrant you don't have, and never arrested him on," which the officer confirmed. These questions weren't bad, but the officer gave me a gift in not pushing back.
However I tried to get another gift on this same issue with the second officer, and allowed the prosecutor to take back one of the gifts the first officer gave me by asking the second officer at the scene the same set of questions. He was able to clarify that when you have an out of county warrant you're not suppose to arrest the defendant on it when arresting them on new charges. There was absolutely no reason to think this officer would give me the same gift as the first officer.
There was not much to gain by asking this question. As best case the officer would only confirm the good answer I had already received, but it also gave him a chance to correct the mistake of the first officer. I knew this was a mistake to give the second officer a chance to correct the mistake, and did it anyway. This mistake clearly happened because I broke one of my rules of advocacy without justification in an attempt to win the case.
