I’ve been a trial lawyer for 40 years, and I’ve learned two lessons that have remained constant.
Let me explain both with a few examples from my trials.
During the summer between college and law school, I headed to Europe to run with the bulls in Pamplona, Spain, and drink warm Guinness in London. I stopped in New York City to see Ed, my boyhood friend, who was a second-year law student at Columbia University. He took me to his evidence class, taught by Irving Younger, who later became one of the most sought-after lecturers on the law of evidence.
I remember two things Younger said that day.
Two weeks after passing the Ohio bar exam, I stood before a jury prosecuting an aggravated burglary case. I wasn't assigned any cases during my first week on the job. I went from office to office, asking if I could try a case with one of the senior prosecutors. Finally, one of them said, “OK, Jerry, take this one, but you’re on your own.” He told me to make sure I called the prosecuting witness. She was not responding.
Lyla lived alone in a run-down hotel in Columbus. She’d been down on her luck for years. When I met with her in her room, she seemed disinterested. The facts dribbled out only after an hour of cross-examination. She told me that one evening, a Black man barged into her room and took all her jewelry off her dresser. She told the hotel attendant. He called the police.
The police arrested Marvin the same evening. He was drunk, and Lyla’s costume jewelry was lying on his bed. Marvin had a history of breaking and entering and burglary charges. His public defender couldn’t plead him to a reduced felony because Marvin would still go to jail.
On the morning of the trial, Lyla was nowhere to be found. The detective who’d worked up the case sent two police officers to find her. After jury selection, I saw Lyla exit the elevator arm and arm between two cops, a little unstable and a wide grin plastered on her face. She was drunk.
I sat her down in my little cubicle of an office and made her drink coffee while I went over the questions I’d ask: Did you invite Marvin into your room? Do you recognize this jewelry? Did you give him your jewelry? Do you see the person in the courtroom who took your jewelry?
She seemed less than enthused.
On the witness stand, when I asked her to identify her jewelry, she said, “Yeah, but they’re not worth much.” I had her describe how a man barged into her room, grabbed the jewelry off her dresser, and ran out.
Then, the final question: do you see that man in the courtroom?
Lyla gazed around the courtroom. To her far right, her eyes fixed on the bailiff, a 70-year-old retired insurance salesman sitting next to the side wall of the courtroom. He abruptly slid his chair back, shaking his head no.
“I don’t see him,” she said.
Stunned, my mind went numb. A few seconds passed, and then a thought flashed in my head. Lyla had picked Marvin out of an array of mug shots. I hastily grabbed the mug shots and laid them out in front of her like a poker player spreading out his winning hand in five-card stud.
Thankfully, after a slight pause, she picked Marvin. “Oh,” she said, “he shaved his head.”
I rested, thinking I had saved the day.
But Lyla had more surprises. On cross-examination, the defense lawyer asked, “You don’t know this man sitting in the courtroom, do you?”
“No,” she answered.
“All you know is a Black man took your jewelry,” he continued.
“Yeah,” she said. “They all look alike to me.” (I’m not making this up).
The jury laughed. I turned to look at the jury. The juror who laughed the loudest was a Black man.
Defense verdict.
My only consolation was praise from one of the senior prosecutors. He said, “You’re going to do well because you can think on your feet.” He did mention that it would have been a good idea to have shown Lyla the mug shots before she took the stand.
I learned from this trial things that I still consider true today. Thinking on your feet isn’t just mental speed. Knowing the facts, anticipating the legal issues, and examining your weaknesses and shoring them up as much as ethically possible reduces surprises and increases your reaction time.
A thorough understanding of your opponent’s theories in the case allows you to anticipate the attack on your evidence. Think of a trial as a giant chessboard in the courtroom. Anticipate where your opponent must go with their evidence to win and expect where your evidence will be attacked.
For example, take the medical case where a surgeon discharges her patient, who’s found dead at home a day later. The defendant’s doctor and lawyer must be prepared to handle every medical sign and symptom suggesting the patient shouldn’t have been discharged.
Another lesson is that the unworthy party in the courtroom loses. Sympathy for your client sometimes sways juries, but the unworthy client strikes a negative first impression and is treated unfavorably. This is known as the horn effect.
Despite Lyla telling the truth, the jury failed to convict the defendant, who clearly committed a crime. The jury wasn’t going to send Marvin to jail on obvious racist testimony. In our daily lives, people take sides, and the same is true in the courtroom. The cold, inarticulate witness falls flat.
In medical cases, noncompliant patients have a high mortality rate in the courtroom, as do doctors who come across as pompous or sloppy. Why do trucking companies settle their cases? Who hasn’t had a large semi pull out in a passing lane, causing you to jam on your breaks?
I once defended a doctor who completely missed a brain bleed on a head CT scan. However, the plaintiff was a registered sex offender. His lawyer was dismissed before trial.
The infamous McDonald’s coffee case is one of the best-known examples of an unworthy defendant. In the 80s and 90s, if you routinely drank McDonald’s coffee, you knew it was served hot. I could leave Columbus to drive to Cincinnati for a hearing, and the coffee was still warm halfway there. It was the reason I preferred McDonald’s takeout coffee.
In the McDonald’s case, an elderly passenger in a car at a McDonald’s drive-through placed a Styrofoam coffee cup between her legs and spilled her coffee while trying to stir cream and sugar. She suffered severe burns, and the jury awarded $3 million.
Backlash swept the country.
The verdict was exhibit A on juries run amuck. After the verdict, it was reported that there had been hundreds of claims by people burned by McDonald’s coffee. The high temperature of the coffee was good for business, and McDonald’s wrote off the settlements as a cost of doing business.
I was a plaintiff’s lawyer back then, so I’d done a little more research on the case. Hearsay reports from lawyers representing the plaintiff said McDonald’s representatives were arrogant on the witness stand.
That case involved two unworthy defendants. The plaintiff exercised poor judgment to a level that appeared ridiculous. Yet McDonald’s shamelessly put profit ahead of customer safety, and the jury punished them for their arrogance. The more unworthy party in the courtroom lost.
“People can overlook any shortcoming,” said Sushuma Swaraj, an Indian lawyer, politician, and diplomat. “But they will not tolerate arrogance.”
