Via Dan Hull at What About Clients?, Chicago’s Stewart Weltman tries to explain criminal defense lawyers from his civil litigator perspective in a post entitled, “Criminal Trial Lawyers are From Mars, Civil Trial Lawyers are From Venus (A Lesson in Why They Sometimes Must Treat Cross Examination Differently).”
How do you not read a post with a title like that? So I did. And it was pretty long. And when I got to the middle, I realized that Weltman was right about one thing, we’re from a different planet than they are.
Weltman’s view of a criminal defense lawyer’s cross-examination came from an article about how
one of Chicago’s top criminal defense lawyers, over the course of his still on-going six day cross-examination of one of the government’s star witnesses in the Rezko political corruption trial, was wowing some of his colleagues with his cross-examination prowess.
I thought to myself, this is going to be about how criminal defense lawyers, skilled in the art of cross-examination, can surgically destroy a witness, bit by bit, inch by inch. My unrealistically optimistic expectation was that Weltman would level spectacular praise on the criminal defense lawyer for his brilliance on cross, something that no civil litigator could ever hope to accomplish given his limited trial experience and lack of artfulness. Oh, I was soon to have my hopes dashed. Not dashed, crushed.
But what struck me most in this article was not the descriptions of cross-examination prowess displayed by him. I would assume nothing less from an attorney of his caliber. Rather, what struck me was that the cross-examination had lasted six days and was still going.
No doubt criminal defense lawyers have to function in a different universe [or at least a different planet] and maybe that is the salient point for us civil trial lawyers to derive from this article. Clearly, if this were a civil case, it would have been settled long ago.
Oh, the love I thought I was feeling was ebbing from my body. Don’t play with those criminal defense lawyer kids, Johnny. They’re not like us. I could hear it coming.
This witness also wore a wire – recording very damaging conversations against the defendant. But this criminal defense lawyer has no choice. His client refused to agree to a plea, so he must plow on doing the best he can with what he has.
So under the any port in the storm theory, he has to hammer as long as he can on the witness’ drug use and faulty memory because this may be the only high point in the trial for his client’s case – hoping that this will be the jury’s last impression of the witness and that he can thereafter convince the jury that he ripped apart the core of the government’s case.
Boom. The assumption falls like a ton of bricks on the criminal defense lawyer’s head. The prosecution can’t be wrong. The criminal can’t be right. The defense can’t win. This is just a desperate effort to find something, anything, to fight the charge. There’s a certain tone of failed heroism to Weltman’s view, knowing that he can never prevail, this top-notch criminal defense lawyer just fights the good fight, knowing that in the end he will fail and justice will prevail.
And then comes the coup de grace for our tragic hero:
So while the article reveled in this lawyer’s undoubted cross-examination prowess, the back story was really about what a great criminal lawyer does in desperate straits. Using his courtroom prowess to essentially filibuster the government’s case because, quite frankly, the deck he has been dealt with – the overwhelming evidence against his client – requires that he do something – anything.
So this is how a civil litigator thinks criminal defense happens. And you wonder why defendants doubt the worth of a strong defense? If other lawyers don’t get it, what are the chances that non-lawyers will perceive the myriad of issues, problems and strategies that are available to the criminal defense lawyer. If other lawyers view criminal prosecution as a lost cause, why should non-lawyers think otherwise?
Civil litigators, who believe that they are court insiders and know how the system works, because they try a case once every five years or so, are part of the wink and nod crowd when it comes to criminal law. In their hearts, they think that anybody arrested is likely guilty, and that our efforts are all to find some trick, some gimmick, to fool the jury and get them off. They smile at us knowingly, that we represent the devil and play the game on the dark side to make a buck. Just like they do.
Having explained this to civil litigators more than a few times, I’m tired of telling them that not everybody is guilty, that not every cop is right, that violations of the Constitution are still worth fighting. They laugh, say “whatever”, and wink.
Weltman and I agree about one thing. We’re from Mars and He’s from Venus. Mars was the God of War, a fighter, and that’s what we do. We are not tragic heroes, fighting a futile battle. We try cases to win. If it takes 6 days of cross, then we do six days of cross. If it takes 10 days, then so be it. If you don’t understand why, it’s not our problem.
Just don’t add to the mix of ignorance by trying to “explain” something you know nothing about. Stick to whatever it is you do on Venus and stay away from Mars.
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Scott, you are right–but so is Stewart, generally, maybe even without knowing 100% why… As you know, I do mostly civil corporate defense–and always have. But I’ve tried several federal criminal cases in lengthy trials. Not a lot–but enough to feel like the experiences were exemplary and substantive. And for several different reasons I have to hang around and understand you guys a little. Like the person I am about to have lunch with in LA… So here, in a nutshell, and quick and dirty, is the real difference to me: the problem of having information so you can prepare a defense. Criminal defense work generally is harder and more stressful (or fun)–and cross is a lot harder. Full preparation is impossible. No depositions. No scorched-earth document harvests. You see witnesses and even key documents at trial or shortly before trial the first time. The element of surprise–which discovery is designed to eliminate and practically does eliminate on the civil end–is tremendous in criminal work. In criminal defense, you need to prepare very quickly; being brilliant really helps, and there are rare smart people who can pull that off–but they are people you don’t see doing civil work. And what limited “discovery” criminal defense lawyers get is all but eliminated by routine and cavalier Brady violations by the government who always have the upper hand and feel entitled to as much surprise and withholding information as they can muster.
First, you’re cheating on me with some LA lawyer. I’m deeply hurt.
Second, you’re absolutely right about the disclosure differential. You civil guys cry like babies and fight to the death over pre-trial discovery, as if the failure to dot an “i” will destroy the fabric of society. We don’t get any. We go into battle blind. We learn the theory of prosecution as the government’s witness testifies, and then have to get on our feet and make the witness break down and cry for mercy.
These are entirely different skillsets, under totally different circumstances. But we’re used to this, since this is what our trials are always about. We never have depositions to fall back on, or give us an advance view of the testimony. Let’s see how many civil guys can get up cold and carve a lying witness to shreds, leaving them a whimpering pile of jello on the stand.
Scott and Dan: Scott I am sorry that you misunderstood what I wrote. We do operate in different worlds. I was not trying to portray defense lawyers as anything other than a very different breed that we civil trial lawyers. Put it this way – there is no way I would want to try a criminal case against a top criminal defense lawyer, but place this top criminal defense lawyer in a civil litigation matter against me and,even though I may only try a case every few years, I will clean his or her clock – before during and after trial [I’ve done it]. We each have our areas of expertise and, notwithstanding what you believe I meant, I respect the talents and abilities of criminal defense lawyers who do their job with the same professionalism as I do mine. So now that I have vented my testosterone in response to yours, let me make myself clear.
The point of my post was this – show me a civil trial lawyer who has just completed a six day cross-exam I will show you someone who most likely is going to lose. It just isn’t recommended. I have tried major civil litigation matters with and against the some of the best civil trial lawyers in the country – no one does it.
A criminal lawyer on the other hand must deal with what they have and, as Dan notes, on short order. If that means doing an carefully crafted dissection of the government’s witness over six days then that is what has to be done.
Moreover, my comments about this particular case were not intended to imply that criminal defendants are not entitled to a defense. If you know anything about me you would know that ot not be the case. Rather the Rezko case is a particularly tough one for the defense. So when I saw that this criminal defense lawyer had been conducting a six day cross it struck me how different our worlds were – no more no less.
I’m trying really hard to see your post in the way you suggest, but I’ve got a few things that are holding me back. That a 6 day cross wouldn’t work in a civil trial is fine, but I didn’t take issue with your views on civil litigators. On the other hand, you’ve assumed in your post that the 6 day cross in the criminal trial was an act of desperation, not a viable strategy. Did you talk to the criminal defense lawyer and ask, why are you doing a 6 day cross? I don’t think so. And yet, you’ve got the defendant convicted, a failed defense and an act of desperation, all while the guy is still doing his cross. What if he knows something you don’t? Why assume that this 6 day cross can have no purpose other than a desperate act by a desperate lawyer? Maybe, if all these other criminal defense lawyers are coming to watch this guy work, he’s doing something right?
Did I miss something?
Let me take a crack at it this way. I made very clear that I was limiting my comments to what was reported in the article, so I obviously didn’t talk to the lawyer and if I had tried I would have been shocked if he would have told me anyway. The article, as written, indicated that the point that he was repeatedly getting was that the witness was a drug abuser and had a bad memory. I have to believe that this point was brought home to the jury in spades by the second if not the third day. So in my mind the question arose as to why he would risk boring the jury – remember the Court’s frustration at the length of the total examination was probably a good indicator of the jury’s impression too. In my mind and I don’t think it is a stretch to conclude that he knew that this was the best that it was going to get for the case and that he better get his whacks in now. This was not out of left field – particularly since other experienced criminal defense lawyers – as reported in the article – noted that they believed he was trying to make this the core of the govt’s case.
As an aside, the cross ended and the next witness came on the stand and, as I predicted, all is not good for the defense. Moreover, his cross was fairly short and clipped with this witness – because the guy had an impeccable reputation [former finance chairman for the DNC] other than that he had plead guilty to being involved in the illegal bribery scheme with the defendant. In other words, the defense lawyer did a good job here – he kept this witness on the stand as short as possible because there was little to do with him other than dig the hole deeper. As I said, I don’t think it is going to get better. Believe me – for political reasons – I would hope otherwise, but I am also a realist.
Post script – Rezko was convicted on the vast majority of counts. The cross exam did have its impact – they didn’t convict on counts where the only evidence was from this witness’ mouth. But that was sort of my point. On the civil side this case would have never gone to trial. Here a great criminal defense lawyer was doing the best he could with what he had – a very very tough case where any small victory would be deemed a job well done. And that he did – even though his client was found guilty.
We on the civil side my be sued for malpractice if we didn’t settle a case where the best we could do is a 6 day cross exam of a witness whose testimony was 90% corroborated by other evidence. A criminal lawyer may have no other choice. Here, rather than being liable for malpractice, this lawyer performed at the highest and best he could by conducting this lengthy cross exam and produced the best result possible.