“Amateurs talk strategy and professionals talk logistics”
- Omar Bradley, U.S. World War II General
While it may seem obvious 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 put on certain pieces of evidence. The fear of an adverse verdict makes attorneys forget about Speaking 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 of losing. Further if you are using the Rules Of Advocacy from this blog or a different source you will be able to compare whether or not following/breaking the rule helped.
Below are two examples when I broke my Rules Of Advocacy. In the first example I asked an open ended question on cross-examination that I wasn't sure what the answer would be. However before asking it I spent a long time and decided that the answer was unlikely to hurt me. The witness gave me the best answer I had ever received on cross at trial. In the second example a witness had just given me a gift on cross. Instead of taking the gift and moving on I decided to try and get another witness to give me the same gift during cross. However he corrected the mistake of the first witness and took away the gift the first witness gave me.
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. I then asked the officer what would be my client's motive to push the alleged victim (an open ended question). The officer responded "she was charging at him". I couldn't have received a better response.
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, and did not serve the warrant on him. Further the prosecutor did not bring the warrant to the trial.
On direct the first officer said my client was running from him and another officer 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 based on a warrant you don't have, and never arrested him on," which the officer confirmed.
Before I asked these questions I decided this line of questioning couldn't hurt me, as I could always move on if it wasn't going my way. But it ended up going my way, and the officer definitely gave me a gift. However I messed it up 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 them on it when arresting them on new charges such as the resisting in this case. There was absolutely no reason to think this officer would give me the same gift. There was not much to gain, as best case scenario the officer could only confirm the good answer I had already received. To make things worse I knew it was a mistake to give the second officer a chance to explain away the the first officer's answer, 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.
