September 01, 2015

Caught in Traffic: Learning Judgment on the Fly

What a young lawyer learned when his firm assigned him to work traffic court one day a week.

Eliot Turner

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Last year, the law firm I work for asked me to do something that might seem unusual for those familiar with Big Law. I was told to take one day a week off for nearly half a year and forget about billable hours. This wasn’t some radical plan to change my work-life balance: I had been volunteered as a prosecutor for the City of Houston.

I am not the first to have done this at my firm, nor will I be the last. For the past 10 years, scores of young lawyers from Houston’s largest firms have been sent to the City Attorney’s office to help prosecute Class C misdemeanors, which range from speeding tickets to violations of garbage collection ordinances and carry a fine of no more than $500. The City gets extra lawyers without extra cost, the law firms meet a civic duty, and the volunteers get the chance to hone skills seldom used.

The diverse Class C misdemeanor violations in Houston come with one thing in common: the right to a jury trial. Even the Seventh Amendment seems bigger in Texas. Actually, it’s not the Seventh Amendment but the Texas Constitution that provides “[i]n all criminal prosecutions the accused shall have a speedy public trial by an impartial jury.” Tex. Const., art. I, § 10. But unlike any other state of which I’m aware, only Texas guarantees a right to a jury trial for speeding tickets.

My firm’s hope—and I assume this is shared by the others—is that, in the era of the vanishing jury trial, a lawyer’s stint as a volunteer prosecutor will bestow experience and judgment that tort reform has taken away.

But what does a young(ish) lawyer learn from trials that take less than an afternoon, other than that the lawyer isn’t the second coming of Clarence Darrow? The short answer is a lot. The lesson comes from doing the task, not from the time it takes to complete it.

Houston’s municipal courthouse was built during an unhappy period in American architecture. A squat, concrete, and largely windowless box, it is filled with low-ceilinged courtrooms and fluorescent lights. It sits in the shadow of Houston’s old police administration building, which—even though considered by some to be a 1950s modern landmark (and which also used to house the court)—is only grand by comparison. Its parking lot is metered and patrolled by a ruthless and efficient civil servant who is happy to give those visiting the courthouse a reason to come back—parking tickets are handled in the basement.

Across the street from the courthouse are law offices with neon signs that also advertise bail bonds and free parking for their clients’ court appearances, along with taco trucks that do a healthy (in some respects) lunch trade.

The courthouse’s monolithic exterior hides a hive of activity. The building teems with lawyers, police officers, accused traffic offenders, and disconsolate prospective jurors. Open Monday through Friday from 8:00 a.m. to 10:00 p.m., the court is a model of productivity. Each of the 12 courts disposes of hundreds of cases each day. The docket is called each morning in English and in broken, if passable, Spanish. Interpreters fluent in Mandarin and Vietnamese are also available. Court even is conducted in Amharic, one of Ethiopia’s principal languages. These interpreters are generally employed to assist in cases involving drivers from the Red Sea Cab Company, who are frequent visitors to this courthouse.

Defense lawyers of varying abilities and scruples shuttle from court to court calling roll themselves for clients they have mostly never met and with whom they might spend only a few minutes. I’ve been told that Dick DeGuerin and Rusty Hardin—the crème de la crème of Houston’s criminal defense bar—have been sighted on occasion for extremely well-connected defendants. Police officers sign in and then repair to the halls to chat with their comrades in arms or discuss pending cases with defense lawyers away from the prosecutors. The prosecutors are obliged to dismiss those cases for which the officer—typically the lone witness—is absent or unavailable. They spend the rest of the morning plea bargaining with the defense bar and pro se defendants.

If all goes well, the 200 cases you began with in the morning will dwindle down to about 10 or so by lunch through settlement or the failure of defendants to appear. Although I was sent to gain trial experience, even here you see that most cases are resolved through settlement. You learn fast to cut deals quickly. After the disposition of most of the docket, the oldest remaining case will go to trial in the afternoon and still wrap up before supper, or even happy hour for those so inclined. By the end of your six-month tour of duty, you might have had as many as 20 jury trials. Even on the low end, you are likely to have had about 15.

My First Jury Trial

And so on my first day as a “volunteer” prosecutor, after doing my part to subsidize the defensive driving industry through plea bargains, I had my first jury trial.

The offense was simple: A trucker had (allegedly) taken an illegal left turn. Commercial drivers are the most determined litigants in municipal court. They generally have the most at stake: Tickets can cost them their jobs or what amounts to the same thing—their commercial driver’s license. As a result, they take nearly every case to trial. There is a strategy in their resolve. If they can get enough continuances, the officer who wrote them a ticket just might not show one day, and the ticket will be dismissed. But those are only odds—occasionally, they too have to go to trial.

Before things began, I had about five minutes with the witness, the police officer who issued the ticket. In municipal court, trial preparation is not measured in weeks, days, or even hours. I was certainly not in Big Law land anymore.

I read the complaint, which was written in stilted and archaic legalisms. I learned that the trucker had taken the turn from the second-most left-hand lane on the feeder road. That’s illegal without a sign permitting the left turn, which didn’t exist then. I also learned from the officer that in the year and a half since the ticket was written (so much for a speedy trial), there had been construction at the intersection, and now there was a sign permitting turns from the second-most left-hand lane. In other words, I was prosecuting someone for something that is now perfectly legal.

I knew that some prosecutors admonished police officers not to speak with the defense attorneys, but this struck me as unfair. So when the officer asked me before we began trial whether he could talk to the trucker’s lawyer, I told him yes, knowing the officer would tell him about the new signage. I suspected this would become the focus of the defense—and I was right. It hardly seemed an auspicious first case.

Before the venire was ushered into the courtroom, the judge asked me and Hank (not his real name), the defense attorney, whether we had any pretrial motions. I said I did, which I took from the judge’s reaction was somewhat out of the ordinary. So I approached the bench and moved to exclude any testimony about the present signage at the intersection as irrelevant. I figured this was a fairly straightforward motion and would be granted without any trouble. After all, as I tried to explain, what did it matter that a new sign had been placed at the intersection permitting left-hand turns when there hadn’t been one on the day of the offense? Hank countered with a forceful rejoinder: “Judge, I think it’s very relevant.” To my surprise, the judge agreed. And now I had to think how I would finesse this issue.

Voir Dire

After our pretrial motions and right around 2:00 p.m., the bailiff brought in the jurors: 15 people who had been sitting in the jury assembly room since 8:00 that morning. Most of them were now eyeing the clock. Once seated, the judge briefly thanked them for coming down to the courthouse. He then told me I had 10 minutes to conduct voir dire.

I introduced myself and said I had just a few questions for them. I figured they’d appreciate this after the wait endured to get to this point.

First, had anyone been on a jury? Had they deliberated in the case? And reached a verdict? Great. Second, did anyone have strong feelings about the police that would prevent him or her from being impartial? Was anyone related to a cop? Had anyone had a bad experience with one? Would that affect anyone’s ability to believe the testimony of the officer here? Terrific. Third, would anyone need to hear from the defendant to reach a conclusion? Even though he has the right not to testify if he so chooses? Wonderful. Oh, one last thing, does anyone have a commercial driver’s license? Thanks.

Hank got up. He was a seasoned member of the traffic ticket bar. He introduced his client and explained that the defendant was a truck driver for a living. And then, he began:

Ladies and gentlemen, in a civil dispute, a case about money, the standard of proof is a “preponderance of the evidence.” It means that the plaintiff just has to convince the jury that what he claims happened more likely than not did happen. Does anyone know what the standard is in a case where the State tries to take a child away from her parents? That’d be a pretty serious case, wouldn’t it? It’s “clear and convincing evidence.” That’s higher than a “preponderance.” You’d want it to be higher, wouldn’t you, if someone tried to take your children away from you? And do any of you know what the standard of proof in a criminal case is? Mrs. Ortiz, how about you; you served on a criminal jury, right? Yes, that’s right Mrs. Ortiz, it’s “beyond a reasonable doubt.” That’s the highest standard in the law, higher than if the state wants to take your children away from you. And even though this case involves a traffic ticket, it’s the standard you apply in this case. That’s right, ladies and gentlemen; it’s the same standard they’d apply if they were trying to give my client the death penalty. And does anyone know what the most important word in the phrase “beyond a reasonable doubt” is? Mr.—Mr. Washington, is it? Doubt? That’s a good one, Mr. Washington. But I think it’s “a.” Because it takes just one doubt for you to find that the state hasn’t proved its case—that they haven’t met their burden. Thank you very much for your time.

Hank’s speech probably wasn’t original, though it was certainly well rehearsed. I heard it and variations of it from other defense attorneys. Hank hadn’t asked a single question that was meant to determine whether he would want any of the panel members on the jury. And he probably didn’t care. Because opening statements are not made at municipal court, this was his only chance to condition the jury—to make sure they knew it was my job to prove the case and that it was a heavy burden.

The Trial

We made our strikes and the jury was impaneled. The complaint was read and the defendant pleaded not guilty. I called my first and only witness: the officer.

I dutifully followed the instructions I had received from my supervisor. I made sure to ask the officer questions about all the elements of the offense. Some of them were beyond dispute and elicited quizzical looks from the jury. “Is the 5200 block of the US 59 service road a public road?” “Is it located within the territorial limits of the city of Houston?” “And the city of Houston is in the state of Texas?”

I then took the officer through what happened at that intersection that day. He explained the lane arrangement and how the defendant had turned left from an improper lane. But after the officer finished testifying about the turn, I was left with a decision. Should I bring out that there is now a sign permitting left-hand turns from the second-most left-hand lane at the intersection? I decided not to.

Hank, of course, had different thoughts and led with it.

“Isn’t it true that there is now a sign that permits you to take a left-hand turn from the second-most left-hand lane?”

“Objection, Your Honor. Relevance.”

“Overruled. You may answer.”

“Yes.”

“And it’s true, isn’t it, that on the day you wrote my client the ticket, there was no sign prohibiting him from taking a left-hand turn from the second-most left-hand lane?”

“Objection, Your Honor. Relevance, confusing the issues, misleading the jury!”

“Overruled. You may answer.”

“That’s true.”

My textbook knowledge of the rules of evidence had been of no use. I had made all the right objections and lost on each one. My case was sunk. My redirect was brief.

“Was there a sign permitting the defendant to take a left turn from the second-most left-hand lane at the intersection the day you wrote him the ticket?” “No.” “Thank you, Officer.”

I rested. The defendant decided not to take the stand. The judge instructed the jury, and Hank got up to make his closing argument.

“Ladies and gentlemen, there was no sign prohibiting my client from making a left turn from the second-most left-hand lane, and today, in fact, there is a sign saying you can. The state hasn’t proved its case beyond a reasonable doubt—you should acquit.”

Hank sat down, and I approached the jury.

“This is not a hard case. The law is clear that you cannot make a left-hand turn from any lane other than the leftmost one unless there is a sign saying you can. On the day the defendant received his ticket, there was no such sign. It doesn’t matter if there is one today; there wasn’t one then. The defendant’s lawyer has argued that there wasn’t a sign saying you couldn’t take a left-hand turn from the second-most left-hand lane. But that doesn’t matter either. There wasn’t a sign in the rightmost lane saying you couldn’t take a left-hand turn, but would anyone think you could? This is not a hard case. I think that you should return a guilty verdict and impose a fine. Thank you for your time.”

I sat down, worried that Hank’s arguments had either confused the jurors or persuaded them that, given the change in signage, finding the defendant guilty wouldn’t be equitable. But the jury didn’t fall for it. Twenty minutes or so after they were sent to deliberate, they announced they had a verdict. Guilty; $25 fine. Justice dispensed by jury, all in less than two hours.

Not every trial was quite as exciting. There were even a few in which my objections were sustained. But the experiences I had in traffic court taught me valuable lessons. I learned how to simplify a case and argue it on the most basic level. I learned how to deal with arguments, clever and not so clever, over how the burden of proof applies in real-world situations. I learned how to address the equities in a case by focusing on what really mattered, relegating the rest to background noise.

It was also worth learning that hornbook evidence, or what you may have convinced yourself is hornbook evidence, doesn’t always prevail in the courtroom and that you need to be prepared to adapt to circumstances you don’t anticipate. An important lesson for young lawyers to learn is that even when you get what you perceive to be bad or even completely erroneous rulings, you still have to present your case. You will be much more effective in doing so if you are practiced in thinking on your feet, responding to changing circumstances, and anticipating all the ways things could go wrong and how you will respond.

And even if I didn’t learn anything else, I now know how to beat a speeding ticket. Maybe.

Eliot Turner

The author is with Norton Rose Fulbright, Houston.