By Criminal Defense Lawyer Jeremy Rosenthal
I’m going over to me what are the top ten principles of defending people. To recap the list so far:
#5 All Eyes are Equal:
People don’t trust themselves or their own judgment for some reason. Lawyers included.
Maverick trusted himself. He hit the brakes and the MIG flew right by. He had cunning, creativity, and self-assurance to know the maneuver would work. The fact it hadn’t been done before didn’t bother him.
What I like about Maverick is he didn’t ask anyone’s permission. He just trusted himself and to a lesser degree wasn’t afraid to fail. I’m a pretty far cry from Maverick, but I hope I think like he might every now and again.
When I say all eyes are equal what I mean is if a trial theory makes sense to me then chances are it makes sense to the jurors too. If I think the police and prosecutors are reaching then I ask myself why? Maybe they’ve been suckered by a doe-eyed accuser in a sexual assault case… Maybe they’re blinded by my client’s appearance or problems they’ve had in the past… or maybe they’re so trapped in their own narrative, they can’t see they’re in an echo chamber as in some domestic violence cases.
Too often, lawyers will settle into a conventional defense. They are afraid to think outside of the box. But by thinking inside the box, they turn themselves into fish in a barrel waiting to be speared. Remember all eyes — including the lawyers own — are equal. The big picture makes sense.
Don’t be afraid to tell the jury about the big picture. Don’t be afraid of hitting the brakes so the MIG can fly right by.
#4 Know the Enemy:
The key to knowing your opponent in my book is experience, experience, experience.
I remember how I thought as a prosecutor. It helps me today. I was advocating for the opposite position which is something lawyers do. I remember my thought process in trying to prove-up a case. I remember my areas of emphasis to the jury, the assumptions I’d make in each case, and the points of emphasis to the jurors. I also remember how effective defense lawyers would attack my case.
Defending cases are wonderful learning experiences too.
Cross examining hundreds of police officers teaches you how to control a sophisticated witness who is often trying intentionally to personally subvert you in front of a jury. Mountains of experience teaches you how to strike the precise blows you need to inflict with your questioning without picking losing battles, having your message bogged down, or looking like a jerk.
Experience also teaches you the prosecutor’s playbook. Prosecutors across the state share practices and training (as do defense lawyers) so it’s not uncommon to see the same techniques and arguments in different counties. An experienced defense lawyer needs to know what is coming and how to neutralize, spoil, or blow-up certain tactics they ought to expect are coming. It’s no different than a football team watching tape on their upcoming opponent and figuring out how to defend against certain plays or formations.
Knowing the enemy is important — but it can’t be confused with a winning strategy.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas.