22 September 2012

The Testifying Defendant

One can say it is either interesting or depressing when the defendant says something while on the stand that is utterly certain to ensure the judge will find him guilty. Every attorney who has ever tried a case knows that it is fortunate, if not miraculous, to have a client who will not say something while testifying that is contrary to what he should have said. The prosecution, the cops, the state's witnesses have a story to tell--a story of the defendant's heinous action, or outrageous conduct, or criminal act for which he is standing before the court or jury to be judged. Your job, as a criminal defense attorney, is to tell a different story--one of innocent misunderstanding. This, you try the best you know how, to inculcate into your client, the defendant. It is not the story itself, but how you tell it that matters. Rather than saying "He was in my face so I punched him", say "I thought he was going to hit me, so I hit him first." The first statement could very well convict you of an assault, but the second statement could very well describe self-defense; ergo, an acquittal. A second example of deflated expectation occurs when your client, the defendant, has related the facts of the situation to you on several different occasions and you as the trial attorney have a clear understanding of what the testimony will be and have developed your strategy for your client's defense from what your client has related to you. But then, on the stand, testifies contrary to what he has told you or has omitted to tell you a significant detail that most certainly will result in a conviction. "Oh, I forgot to tell you that he said he didn't want to fight." That sort of thing. On these occasions, you just remind yourself that at least you will get paid since you have a retainer and your client will blame you for being found guilty and tell his friends that you are a lousy lawyer and never go to him for help. Not to brag, but I think that trial attorneys have to be a different sort of folk. If you can't expect the unexpected at trial and be able to assimilate it and use it the best you can, don't try cases. If ungrateful clients leave you depressed and anxious, don't tell your clients what they don't want to hear. If you take losing personally, don't involve yourself with disputes. For every trial there is a winner and a loser. Losing is inevitable. If you as an attorney need, for your own satisfaction, a win in every case, stay out of the courtroom. If you are a person who believes those you help should be grateful, don't practice law--find another line of work.

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