Defending a Lawyer in Federal Court
Mike1 and his wife came into my office emotionally distraught and scared. They were both in their early thirties and had been together as a couple for ten years, married for six. Mike had been indicted in the Northern District of Florida for Conspiracy to Commit Mail Fraud, Conspiracy to Launder Money, and eight (8) substantive counts of Mail and Wire Fraud. The trial was expected to last two (2) months. As he sat in my small office he began to tell the story of his innocence and began crying. He was not weeping to get sympathy from me, but he did. His life as he knew it, his liberty and his law license were all at stake. Having heard his story and seen his innocent and somewhat naive disposition, I told him that if the emotions he was displaying were real and he could express them in court, a jury would have a difficult time convicting him. I don't usually say these kinds of things to clients.
The case involved the federal prosecution of the top management and owner of a company headquartered in Ohio. The company sold "viatical settlement contracts" to investors. A viatical is a contractual arrangement in which a business buys life insurance policies from terminally ill people for a percentage of the face value. The company then solicits investors to purchase a beneficial interest in the life insurance proceeds when the insured party, called a viator, passes away. Mike answered an ad in his law school placement office that had been posted for an "in-house" counsel. He began working for the viatical settlement company in September of 1997 and worked as counsel for either that company or a related company over the next five years. After surviving a motion to recuse me because I had been involved the trial of several salesman of the same company who had been prosecuted in the Northern District of Florida, Mike and I got down to discovering the story of his case and his life.
Mike and his wife came to Pensacola, Florida and we spent two and one half days at my house while they told me the story of his life, his schooling, his relationships with his wife and parents and about his work for the viatical settlement company. Approximately one month later, I traveled to Ohio and spent three days listening again to Mike tell me about himself and his work with the company.
After dreaming of becoming a lawyer and putting himself through law school, Mike graduated from law school in May of 1997. He graduated in the top twelve percent of his class and had decided he wanted to be a corporate lawyer because of what he thought the financial security such a position would bring. I tried to understand Mike and his wife by experiencing their life and their case from their perspective, at their home, at dinner and at my home. I wanted to see how they lived their lives. In spending time at Mike and his wife's apartment, I could see that this young attorney, who made six figure salary working as corporate counsel for the company he was currently employed with, lived very modestly. Mike drove an old Jeep Cherokee and his wife, who had a good job herself, leased a modest car. Mike and his wife were still struggling trying to pay off Mike's law school loans.
The prosecutor assigned to our case was a bullheaded fellow who did not have a problem embellishing his case in order to achieve his goal of convicting Mike and the other four defendants. In one or two pretrial meetings I had with him, he exaggerated the evidence against Mike I think in an attempt to make me lose faith in Mike's case.
In federal district court in Pensacola jury selection is generally done entirely by the Court. However, our case was tried before a new district court judge and she allowed each defendant ten minutes to speak with the jury after the Court conducted its voir dire. I was very concerned that because Mike was a lawyer that they would hold him to a lesser standard of proof than other defendants. Although time was brief, I spoke directly with several panel members and had everyone enthusiastically acknowledging that they would not hold Mike to a different standard than anyone else. So much for jury selection in federal court. 2
The trial began on January 5, 2005. The way that the seating for trial panned out, Mike and I had to sit immediately next to the primary defendant, the owner of the Companies in which fraud was alleged to have occurred. The owner, a self made millionaire by the age of 30, not only had a substantial amount of evidence against him but also fidgeted constantly, yawned, fell asleep and constantly wrote notes (while awake) on post it stickers and stuck them in front of his lawyer. He looked like a guilty man. I told Mike to try not to worry, by the end of this trial, which was projected to last eight (8) weeks (and did), they will know who we really are. Of course, because I had gotten to know Mike and his wife prior to trial, I knew he was a good young man. I asked him to trust the people on the jury. Recently, I have thought more about how I had always looked upon the jury as a separate entity when, in fact, a jury is merely a group of people, many of whom are just like us in most ways, who have a horribly difficult job to do: determine whether someone is guilty or not guilty. What makes our job so difficult is that very few people have had enough experience with the justice system and the concepts of justice (reasonable doubt, burden of proof, presumption of innocense) necessary to do the job without being taught these concepts by us lawyers. Of course, many people don't trust us so establishing a trusting relationship is paramount so they believe us when we explain these concepts to them. By becoming involved with TLC, I have realized how I used to be afraid to confront and admit to myself my own prejudices in a case. Most the time prior to TLC, I didn't really even know what prejudices I had. Now, I think about how I truly feel about a case and most often talk openly with the jurors about areas of the case that concern me. I hope we start to connect. However, in this case, because there really wasn't much in the way of voir dire, we had to connect with them in opening statement and in cross examination. Also, I now almost always refer to the jury as "our jury" not "the jury." The jury in this case was Mike's jury, not a separate body of people with whom we had no connection. This "group" mind set work for me and I don't overdo it if it starts to feel uncomfortable or fake. I also type an outline of the biographies of each juror who is seated on our jury, including the alternates. I often refer to this list during the trial when I felt like I was losing focus of who the people are on our jury. "Oh yea, juror number four is Bob Jones, he works for Gene's Tile Company, went through a divorce last year and has custody of his two children." This helps me remember the jurors are people with families, problems and concerns just like the rest of us. Knowing their backgrounds and something of who they are might enable me to better connect with them with certain stories in closing, etc.
One of the problems I faced in Mike's case was just the fact he was the indicted company's in house lawyer for five years. At the time of the trial he had a good job with a very successful, legitimate company as their "in-house counsel." Since graduating from law school, Mike has been very driven and motivated, and has had a good amount of success as a corporate attorney. He has always been in a position of authority. Albeit he is young, he has grown accustomed to telling people what to do, voicing his opinions on matters, and being in general an overall authority figure or, simply put, being a bit of a "big shot." The big shotism was something I felt I needed to work on with Mike on. Mike by nature is very gentle, sweet and considerate of other people. We talked about how during the trial he needed to be who he really was - not lawyer Mike but Mike the good natured human being, the sensitive human being and the loyal, devoted husband he is to his wife. The jury repeatedly saw the strong affection he and his wife had for one another during lunch hour and breaks, etc. She sat loyally behind him throughout the two month trial. He understood how he needed to be who he really was but through out the trial I reminded him to try to be aware of how he appeared to the jury. Occasionally I would look over at Mike, who was seated immediately to my right, and all that was needed was a smoking pipe to stick in his hand and he would have looked like he was ready to give us all some wise, learned legal advice. He was nervous and scared of course, like any sane human being would be. I would say to him "Hey, Mike, are we billing hours today?," and other reminders, when he fell back into the lawyer role in which he was so comfortable with and had learned so well. At the end of some days, he asked me "Did I do well today?" and would say "With what?" He would tell me "In not looking like a lawyer." Overall he truly did very well I think because in real life he is a very likeable person. I was lucky to represent a lawyer like Mike. I would have been a more difficult client to represent than Mike was I have no doubt. He had blind faith in me much probably like the blind faith he had with the indicted owner of the companies he had worked with for five (5) years.
When the trial began there were a few other problems we encountered because Mike was a lawyer. Like Mike blurting out "Objection, compound question!" when the prosecutor asked one of his many improper questions. I would explain to Mike, who has never even taken someone's deposition let alone tried a jury trial, that we don't necessarily want to object every chance we get. He would say "I know, I am just stressed." I can only imagine what it must have been like for him to be going through a criminal trial where almost every innocent transaction he participated in over the course of five (5) years was being spun by the government prosecutor as a sinister act. One co-defendant's lawyer, Mike Pasano, an experienced, excellent trial lawyer from Miami, told me a problem with long trials he has seen is that the clients, after hearing so much negative testimony and evidence alleged against them, take on a persona as if they are in fact guilty. Their body posture and facial expressions after weeks of trial start to look downtrodden; they start to look guilty as hell. This happened to both Mike and his wife. His wife sat in the courtroom listening to the evidence almost everyday. (On the few days she was not there she was back in their rented apartment working for her employer). So after court I always told Mike that we had a "good" day and things were going well. Sometimes he believed me, sometimes he didn't. Sometimes I didn't believe myself.
Of the 79 government witnesses who testified, we had two witnesses that provided very damaging evidence against Mike and the owner of the company. One witness was a former president of the company. The other witness was the president of the underwriting company that provided underwriting services to the viatical company. The latter was a cooperating co-defendant who had cut a deal with the government for testifying. These witnesses testimony had to be entirely discredited otherwise we would lose. They testified that Mike, as the lawyer for the company, told them to fabricate information being provided to investors (how long people were estimated to live) , that he approved the submission of false advertising pieces to be provided to investors about their investments and told others to destroy fraudulent documents from physicians about the life expectancies of the viators (insureds who had sold their policies). The ex-president testified that she was committing fraud at the direction of the owner and, because Mike was the in-house lawyer and her "confidant," she told him about the fraud, that she was secreting documents from the company and that she was going to the FBI to tell them about the fraud and to provide them the documents as evidence of fraud. She claimed that the day after she told Mike this information, the owner, Mike and one of the owner's other "lieutenants" took her to lunch and fired her, implying that Mike had told the owner everything she had told him about going to the FBI and that was the reason why she was fired.
The first witness, the past president of the underwriting company, was probably the most articulate, intelligent and persuasive liar I have ever heard or seen in 20 years of trial work. The clients had warned us all about her and their warnings were accurate: she was extremely dangerous. I tried like the dickens to understand why she would be lying. What was it that motivated her to lie about Mike? I figured that she had been doing wrong at the company and thought that blaming the company lawyer would be a good defense and would please the government at the same time. She had pled guilty but admitted to doing almost nothing illegal herself. I had decided I would do a "soft cross" of this witness, which is always a challenge for me. I wholeheartedly believe I have alienated the jury in trial when I have become too aggressive with a cross that destroys a witness; it also destroys the trust the jurors had in me. (Oh, so he really is a jerk!). To help curtail this tendency of getting aggressive, I write at the top of the pages of my notes for cross- exam the word "SOFT." I have found this centers me and reminds me that unless something happens where the jury gives me permission to get angry with a witness, don't! I will never forget an experience where a three week federal trial had gone well for my client until I "let loose"on a likeable government witness that I knew was misrepresenting the evidence against my client. The problem was the jury didn't know he was misrepresenting the evidence; what they did know is they didn't like me after I was done with him. Of course my client and the co-defendants in that case all thought the cross exam was awesome. They all got convicted.
Also, for me, it also almost impossible to tell my client's story, especially in the present tense, with all closed ended questions. With almost each witness in Mike's case, I first set the scene of where their encounters with Mike occurred. In light of the rules of our federal court of not allowing witnesses off the witness stand, I had the witnesses explain from the witness box where people's offices were, how big the offices were, some of the furniture in the office, noise levels, etc., using our courtroom and jury box as a starting place. I stuck to my plan and continued on after the break in the same "soft cross" fashion until there was a point when I think the jury gave me permission to become aggressive with her. She was caught in an obvious lie that she couldn't smooth talk her way out of. Everyone knew she was lying.
With each cross I did in Mike's case I did my best to set the scene, used the witness to tell Mike's story, and elicited any good information about Mike, his character, work habits, etc., that I could prior to tackling the negative testimony they had. I prepared to cross a lot of witnesses I did not actually cross. In other words, if the witness did not affirmatively hurt us too bad I did not cross them. We always had to keep in mind what damage the prosecutor could do on redirect because the Court did not allow any re-cross. I think the prosecutor was dismayed several times when I didn't cross witnesses that he had planned to hurt us by eliciting damaging information on redirect. It was a difficult thing, not to cross examine witnesses. Mike understood thank goodness.
In this trial I typically dispensed with the niceties of introduction, etc. when I began to cross a witness. Who I am was not important and, especially in a long trial like this with 95 total witnesses, the jury gets a little tired of all the introductions. With each witness I tried to apply the rule of primacy and recency and, in Gerry's terms, put "down the paint brush when the painting was finished." It is sometimes so difficult not to add just one more stroke.
I spent three days preparing Mike to testify. He is a very likeable, extremely intelligent, young man with a very youthful and somewhat naive demeanor and appearance. From outward appearances he seems like he would be the ideal client (if there was ever an ideal client) to have testify. We spent a three day weekend preparing for his testimony on the following Wednesday. By Monday both Mike and his wife looked physically and emotionally a wreck. Mike was nervous and almost shaking Tuesday morning. His wife looked like she hadn't slept. We met that night to discuss whether he wanted to go forward with testifying. Without his testimony, the government had not linked him to almost 10 separate documents the government had claimed were evidence of fraud and had specifically listed as overt acts in the indictment. As it turned out, both defendants who did testify, the owner and another young man about Mike's age, were convicted. Of course, if Mike was convicted, I was going to second guess our decision not to have him testify.
Until several years ago when I learned the importance of storytelling, I felt one of my weakest parts of my trial was closing argument. Since then I have been telling stories to juries like a story telling fool. I think in Mike's almost two hour closing argument, I wove seven or so separate stories into my argument. One or two were from my own life experience, some were from spiritual books I have read and some were from what I have heard other lawyers use. Of course, there is no better ending to a criminal trial than Gerry's Bird Story. Juries love to hear it and I love to tell it. "Here you are, be careful, you have a human being's future in your hands and I trust you with him."
To explain choosing not to put Mike on the stand, I told the jury if they hold it against anyone, hold against me, Mike's lawyer, who advised him not to do battle with the "warhorse" of a prosecutor we had in this case. I also told them a story from when I was 17 years old when I was accused of stealing a stereo speaker from a stereo store. I had brought the speaker into the store for repair after purchasing a set of two speakers. The owner of the store came into the store when I was carrying my repaired speaker out and accused me of stealing it; he claimed he didn't sell me that particular speaker when in fact he had. I told the jury that for whatever unknown reason, when he accused me of pilfering the speaker I took on a persona as if I had in fact stolen the damn speaker. I know I looked guilty as hell. I guess I was not mentally prepared to defend myself when I was wrongfully accused even though I had done nothing wrong. Since TLC, I have found my own life experiences are ripe for finding stories to explain concepts of my case to people on juries, stories which they may relate to.
Another thing I wrote on the top of the pages of my notes for cross examination in Mike's case is "Be Real." I also often thought of this as I was trudging up to the podium to begin cross exams. (I also touched my medicine pouch from the Ranch that I wore everyday of the trial). If you are honest about who you are and honest about your case, you have a much better chance at winning at trial. I know now it is not important to be a great orator to be a good trial lawyer; I used to think it was and knew I would never be a great orator. I remember reading an article written about Gerry that stated that he prays to be "real" before every trial. What a novel concept for a trial lawyer!? Be real, be honest. I think the concept that you, as a lawyer, shouldn't be something you are not, also makes trying cases a bit less stressful.
As Mike's ten "not guilty" verdicts were read I was holding Mike's hand. The pent up emotions he had tried to keep inside for the last year of his life flowed from him. Although admonished by the Court not to express any emotion when the verdicts were read, Mike's could not hold back the tears. He began to sob. I think the jury, seeing this young man's emotions, felt they had done justice.
A lot of the things I have mentioned in this article may not work for everyone. They seem to work for me. Thank goodness they also worked for Mike. He knows probably better than anyone how our "system" really works. He plans to leave his corporate job and become a criminal defense lawyer.
Mike began his transformation into a lawyer who represents people by attending the very next TLC workshop offered after his acquittal. What a treat to introduce him to the methods and the College. Without TLC, I have little doubt that Mike would have been able to attend.
1Mike is not my client's real name
2 Case law supports a special instruction that jurors must not apply a different standard of proof to lawyer defendants than other defendants.