The “Great Trial Lawyers” Get Creative When Making a Record

I really loved Maxwell Kennerly’s blog post yesterday, Titled “Young Lawyers: Be Careful Emulating Great Trial Lawyers.” I loved the ethos though I am not wild about the application. Mr. Kennerly’s post is a reaction to another blog post offering advice for trial lawyers. Essentially, Mr. Kennerly wonders whether it is a good idea for young lawyers to learn from great lawyer characters from old movies. More particularly, he wonders whether lawyers should use some of the tools Paul Biegler, played by Jimmy Stewart, used in the 1959 movie Anatomy of a Murder. Those tools include speaking objections, ignoring the judge when he tries to govern your conduct, and knowingly asking questions in violation of the rules of evidence in an over the top, Jack McCoy on Law and Order sort of way.

He thinks he would advise against it but laments that fact and wonders aloud.

My fear is that as the hairs on my head gray, I have become increasingly conservative. Rather than thinking outside the box, I recokon where the walls are before trial and try to stay within them, to demonstrate my legal acument. But since when is trial about anything other than the narrative at hand? Is time spent in silent struggle with [the] evidence code time that could better have been spent constructing a narrative that persuades, and then finding the means to tell it, including the drawing of objections?

There are two ideas in this well-written paragraph presented as mutually exclusive that really are not. But I think it’s important that the point not get lost. That point is the single thread that runs through his blog post. So, let’s take the thread first then come back to the two points.

The thread is the idea of Beginner’s Mind. I think it’s okay to go there in talking about this post because there’s a zen category on Mr. Kennerly’s blog. In his prologue to Zen Mind, Beginner’s Mind, Shunryu Suzuki writes that

In the beginner’s mind there are many possibilities, but in the expert’s there are few. … For a while you will keep your beginner’s mind, but if you continue to practice one, two, three years or more, although you may improve some, you are liable to lose the limitless meaning of original mind.

I’m not sure that Suzuki would appreciate me lifing these concepts out of context and dropping them into a discussion of trial law and preserving an appellate record. But they work, and I think that Mr. Kennerly is getting at it. So, now to the mutual exclusivity piece.

• Yes, it is important to find your narrative or your story. That story should be the glue that holds it all together for you. And it is the glue that holds an appeal together as well. If you are the appellant and you only talk nuts and bolts, you will lose most of the time. The nuts and bolts are how you win. But the narrative gives the court (for the trial lawyer, the jury) a reason to want for you to win. But the narrative is not the banner you carry with you as you march over decorum or the rules of evidence. The narrative is what drives those in power to help you win. You take the narrative with you into the time you spend struggling with the evidence code. After all, suppose your opponent finds her narrative. Should your opponent’s grasp of narrative allow her to introduce your client’s character, comment on his failure to testify, or wave around evidence that probably can’t be admitted to inflame the jury?
• Thinking outside the box means approaching the law with a sense of creativity, even playfulness, and finding new angles, challenges not dealt with before now in precedent, and a view of the statute and cases with a new set of glasses. With your beginner’s mind, you can ask the judge for rulings based upon your fresh approach. If you win, all the better. If you lose, then the appellate lawyer will have something to try in the appellate court. But outside the box should not mean acting less than an officer of the court (not saying that Mr. Kennerly claims that you should, but others might read his writing on this point and reach this conclusion on their own).

Now, getting back to Jimmy Stewart’s character. He’s not exactly a guy in love with the law. There is a real cynicism in him as portrayed in the movie. He’s not exactly finding the narrative and using it to breath life into the trial. Remember the famous scene where he tells his client all the possible defenses before he gets his story so that client will shape the facts accordingly. The character is actually everything that Mr. Kennerly fears lawyers might become with age.

A beginner’s approach is in order. It will make it fun for you, and it will make for a better appeal — if you ever need it.