Op-Ed: Judges and Juries and the Trial Lawyers Everyone Loves to Hate

From ‘A Book, an Idea and a Goat,’ Andru Volinsky’s weekly newsletter on Substack is primarily devoted to writing about the national movement for fair school funding and other means of effecting social change. Here’s the link: https://substack.com/@andruvolinsky?utm_source=profile-page

By ANDRU VOLINSKY

The US Supreme Court’s ruling about the ex-president’s immunity claim (which may also affect the convictions of other insurrectionists) has been delayed and delayed again. It may be issued during this last week of the Court’s 2023-24 term. The delay has saved Trump from trial and a second conviction before the November election no matter the ruling. The delay has also denied the voting public a detailed exposition of the evidence of the ex-president’s wrongdoing and the threat to democracy that he poses. I won’t guess the ruling. If it is released tomorrow or Friday, I’ll address the ruling in next week’s post.

I say IF because in theory the case can be put over and re-argued next term. A case can be put over and re-argued for legitimate reasons related to new issues not previously understood before the decision writing stage. It is rare, but a case can be put over to the next term to gain a strong majority or a unanimous ruling. The 1954 Brown v. Board was such a case. Unable to come to a decision by June 1953 under Chief Justice Fred Vinson, the Court decided to rehear the case in December 1953. During the intervening months, Vinson died and was replaced by Gov. Earl Warren, of California, who was able to arm twist all of the justices to support a unanimous decision. At the very least, the Court should issue a formal order scheduling the immunity case for further hearings.

Trials

With all the hoopla about political trials and their consequences, I thought it might make sense to talk about what good trial lawyers do and what they’re taught in their trial advocacy classes.

First, let’s give the process of a trial a framework. Don’t think of a trial in the American judicial system as a search for truth. It seldom is. The lawyers should know the facts of their case in intimate detail before the trial begins. It’s not really a search for anything other than, perhaps, an outcome or an ending.

Think of a trial as a fight for control. The party that controls the information that gets to the jury is likely to accomplish what they set out to accomplish. This may be obtaining a conviction or winning an award of damages. In selecting a jury, the lawyers want jurors who are at least receptive to their message, if not partial to it. There are obvious parallels here to political campaigns with efforts to get carefully conceived messages backed by lots of money to voters and, for Republicans today and Democrats in the past, attempting to control who can vote. Political debates are another parallel and there is one I hope you’ll watch tomorrow night, June 27th.

In some trials, the judge acts as a third party who is also fighting for control. A judge may appropriately want to see that each party gets a fair shot. A judge may also have a preferred outcome and try to shift the events that occur prior to trial and during trial to make that outcome more likely.

Judge Aileen Cannon who is presiding over the ex-president’s stolen classified documents case in Florida appears to fall into this latter category. Last week, despite claiming she doesn’t have time to schedule and conduct the ex-president’s federal criminal trial, she held an unprecedented two-day hearing about whether Jack Smith’s appointment as a special prosecutor is proper; an issue that appears to be completely settled in Smith’s favor. Of course, Judge Cannon was appointed by the ex-president and made a point of keeping his case after more senior judges suggested she step aside after being thoroughly rebuked by the ultra-conservative US Court of Appeals for the 11^th Circuit. Judge Cannon even had to spend taxpayer money to have a secure room, called a SCIF, built in her courthouse to accommodate a case about classified documents.

It is highly unusual for senior judges to recommend that a trial judge decline to preside over a case and even more unusual for word of the advice to leak to the public. The federal court in Miami, by the way, has a SCIF as does the 11^th Circuit in Atlanta. Although my case was not a confidential one, I argued an appeal in the 11^th Circuit’s secure courtroom in Atlanta. It was a death penalty case, and I am pretty certain the chief judge selected the secure courtroom for theatrical effect.

A judge may also conduct a trial to minimize the chance that the jury’s verdict will be reversed by an appellate court. This appears to be the approach of NY Judge Juan Merchan who presided over the ex-president’s hush money trial. Merchan is an experienced, straightforward judge who is able to understand legal issues and calculate whether the legal issues make a difference. Why give a defendant accused of a crime a legal issue to pursue on appeal if the issue is of little consequence to the trial (i.e., the defendant will be convicted anyway)?

A few trials are also fought in a public dimension where the media’s coverage is important to the client or may affect public policy or the affairs of big business. Good trial lawyers agree they must know who is in the fight, what is likely to occur at trial and what the record will look like on appeal. This fourth, public dimension is not a point on which all lawyers agree. Some lawyers eschew media involvement no matter what and, in my opinion, sell their clients short. Like it or not, Trump and his lawyers effectively used the media in his fraud trial and the politicos on the other side made a poor choice not to respond.

A lawyer named Tom Hersey was our dedicated media liaison in the six-week Claremont II trial. Tom was a motorcycle riding, former Marine with a braided ponytail. He also was a former reporter. Tom didn’t sit at counsel table. Each day, he embedded with the reporters in the court’s front pew and patiently explained each of our tactics in whispered tones, ever mindful of our “message of the day.”

Trial lawyer advocacy classes look and sound a bit like classes in learning theory. “Primacy/recency”—put your most important evidence in front of the jury or judge at the beginning of the case and again at the end, right before a verdict is reached, to maximize the chance that the jury will remember it. The “learning styles” of the jurors are mostly unknown to the lawyers, but to be effective, trial lawyers use multiple modalities to accommodate the potentially different styles of the jurors. For example, a witness may explain a point in testimony and then show a graph or a blow-up of a check used to pay off a porn star. The visual aids help the visual learners and the tesimony helps the juror who learns by hearing evidence. It also serves the point of repetition, another key consideration.

Trial lawyers must know they are and what are their strengths and weaknesses, and also understand societal perceptions of them (whether right or wrong). I am small in stature and not generally a screamer. My trial practice reflects both. Although my cross-examination style isn’t physically intimidating, I make sure to know more about the topic in question than the witnesses, even experts. How can I know more than an expert with a PhD? By first limiting the range of topics to be discussed, I can learn enough about the topic around which I have built my little cross-examination corral to be effective.

I also use my stature to get very close to the jury box without interfering with the jurors’ personal space. I try, over the course of a trial, to become the 13^th juror.

It’s fair to say that I have a great deal of respect for trial lawyers who are good at their craft and respectful of our system of justice. We are fewer and fewer as trials become less likely in our overburdened and overly expensive judicial system. However, when there is a need for someone to stand up for an unpopular issue or the most odious person in a community when he is accused of a crime, I hope there remain a few lawyers whose training, experience and guile help them meet the need.

A final thought lest anyone misunderstand me, I am very glad that the ex-president was convicted, and I hope this is the first of many convictions. No person is above the law, including the ex-president. While I am ambivalent about a sentence of incarceration for the Stormy Daniels’ pay-off scheme, I do think a severe sentence is merited when Trump is convicted in the insurrection and classified documents cases and I hope that corrupt judges like Aileen Cannon, Clarence Thomas and Samuel Alito do not save him from the judgment of a jury of his peers.

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