This may be one of those concepts that trial lawyers, particularly inexperienced trial lawyers, should have tattooed to their foreheads:  Don’t Force It!  More lawyers have gone down in flames, seizing defeat from the jaws of victory, by trying to make something happen when it’s just not there.

Society prizes action.  When life gives you lemons, make lemonade, right?  If you can, absolutely.  No trial lawyer worth anything doesn’t want to find that tiny crack that he can use to tear down the huge wall.  Just give us something to work with, something to exploit.  It doesn’t have to be flagrant.  Just a little, itty-bitty crack will do.

But sometimes the crack doesn’t come.  Sometimes, no matter how badly we (or our client) wants us to rip some witnesses head off because he’s a lying, scheming dog, there is just no way to do it.  It kills our client, who will grab our arm and squeeze it so hard that the blood stops circulating.  He’s just dying to jump up and scream that the witness is a liar.  We hold him so that he doesn’t.  We talk calmly to him to keep him from doing it.  But the client wants us to do it for him.  He knows we get to cross the witness soon, and he wants us to stand up in front of the jury and let them know the truth.

And sometimes it just doesn’t happen.  Sometimes, the witness doesn’t give us the opportunity.  Sometimes, the witness just sticks to his guns, keeps his cool and repeats what he said on direct.  It is hardly unusual that the witness has practiced his story well enough that the lie sounds more reasonable than the truth. 

This is what a well rehearsed police witness was meant to do, and plenty of our friends in law enforcement testify very well.  They are so very good at lying because they believe that they are doing the right thing.  They feel neither guilt nor shame about being liars.  They believe they are doing God’s work on the stand, and a little lie to put a criminal away is all in a day’s work.

Watching a lawyer force it is most painful when it’s your co-counsel on a multi-defendant case.  It’s not that I’ve never done it, but it’s one thing to blame yourself for a mistake, but another to watch someone else do it, see it coming, know what’s about to happen and then, CRASH, be helpless to stop the bleeding when it does.

When co-counsel forces it, there are two flavors.  The first is plain vanilla, when she wants so badly to make a point, even when there’s no crack, that she asks a question out of desperation and the witness smacks her hard with a well-timed, well-tuned, answer.  This can bring a quick end to an otherwise competent cross-examination, and whatever good was done is undone in a single response.  The lawyer slinks back to the defense table, hoping no one noticed or that the death toll isn’t as high as she knows it is, and sits down before anything else can happen.

The second flavor is Tutti-Frutti.  That’s the one where you’ve just completed a spectacular cross and the witness hasn’t touched the co-defendant.  There is no reason in the world why co-counsel would get up and ask a question.  Not a single question needed.  Nothing.  But she just can’t help herself.  Whether because she needs to show her client that she’s doing something, or she just wants in on your successful cross, she gets up at the judge’s invitation anyway.

This is when you know nothing good could come of it.  This is when you cringe before the first question is asked.  You try to grab her attention to whisper in her ear, “sit down now or I will beat the daylights out of you in the hallway at the next break.”  But she’s not paying attention.  She’s in the zone.  And then, CRASH, it happens.  She asks the question that you just nailed, the one where you had the witness bleeding on the ground, gasping for breath, wiping tears from his eyes as he broke down in front of the jury.  It’s been asked.  It’s been answered.  It’s perfect.  And then she asks it again.

Only this time, the witness has collected his thoughts.  He’s engaged in that human ability to think of exactly what to say one minute after the wrong thing came out of his mouth.  One minute too late.  Unless someone asks the question again.  As co-counsel just did. 

The killer instinct makes us want to push the envelope just one fraction of an inch farther than it should go.  It’s that last push that constitutes forcing it.  Perhaps the way to stop ourselves from complete self-immolation is to think Tao or Zen, as Bennett tells us to do.  Or maybe we just need to remember at that critical juncture when we are ahead of the game, even if only by one point, to shut up and sit down.  Whichever way you want to think of it, just don’t force it.