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Your Attorney Doesn’t Have To Be a Jerk To Win

Attorney Patrick O'Keefe standing in front of Lansing court house.

Opening statements began yesterday in the re-trial of an attorney accused of shooting a man in the leg for entering the lawyer's downtown Albuquerque office, KRQE reported Monday. David "Chip" Venie is accused of shooting a homeless man in the leg for entering his office and allegedly refusing to leave. Venie says he was acting in self defense.

Venie's first trial ended in a mistrial after jurors were unable to reach a unanimous decision. What's most appalling is that in the first trial, Venie–representing himself–chose to present a case in an unethical fashion and chose to break all the rules. (Lawyers have a joke that the definition of "in propria persona"-which means to represent oneself-actually has another meaning: "he who has a fool for a client.") A criminal defense attorney by trade, Venie showed the jury inadmissible evidence and repeatedly made statements that were derogatory to the accuser. To name one example, he published a mugshot of his accuser with the word "BUSTED." To name another example, he repeatedly called his accuser names and bullied his way around the courtroom. Reportedly, after the first trial, the judge blamed the mistrial on Venie's behavior. Venie is not being permitted to represent himself in the second trial. A public defender was appointed.

This example is just one in a list of many cases where attorneys have "damned the torpedoes"–and the court rules, Constitution, and rules of evidence, for that matter–and proceeded to act in a manner that is unbecoming an officer of the court. But aside from it's unethical tenor, it's also an ineffective form of trying to persuade the jury. It also sickens me that certain members of my profession choose to perpetuate the negative stereotypes of defense attorneys by advancing this type of imbecilic vitriol.

I want to stress one more point here. It is not always the attorney's job to "win." Far too often people confuse winning with getting the "big verdict" or "getting off" scot free. But this is the wrong approach. To me, winning means presenting a compelling case with a steady combination of skill, class, and dignity. Winning your case takes an incredible amount of time, resources, and preparation. Winning requires having a winnable case. If you are defending someone in a case where there are 100 witnesses, 50 pieces of solid circumstantial evidence, and a full confession, do you really think you're going to win? As Will Rogers once said, "That's the most unheard of thing I've ever heard of." But winning your case also requires having an attorney who can convince the trier of fact–whether it's the jury, judge, or the board members–that your case is just. The successful trial lawyer cannot convince any jury, no matter how eloquent he seems or how loud he screams, that their client's cause is just if the lawyer lacks credibility and honesty. The best way to establish honesty and credibility with a jury is to earn it through respectful conduct to all persons involved: the prosecutor, the judge, the jury, and most especially, the witnesses. The best way to lose it is by degrading a witness or name-calling in the courtroom.

The Witnesses. I have seen too many cases that were lost by an attorney who did not properly handle the witnesses for and against him. For example, I've heard jurors say after the trial was over, "I did not like the way that attorney treated that poor witness," or "It seemed like the attorney was always trying to twist things around and confuse us." This "win at all costs" approach is rarely effective. This "my team" syndrome, an apt phrase coined by Gerry Spence, is when the attorney decides the witness is on their team, and treats the witness as a friend, one of their own. To the contrary, when a witness for the "other team" surfaces, the "my team" attorney turns into a "raging scold" and fights him on every word. Testifying in most trials is not a choice–due to the obligatory nature of a subpoena, it's a requirement. Therefore, treating a witness as low-class scum is to ignore the compulsory nature of their attendance. Moreover, it is to ignore the simple laws of human decency. Again, this scorched earth approach is rarely effective.

In a courtroom, as in every other forum, the effective attorney is the one who establishes trust with the decision maker. That trust takes time to establish, but it can be lost in on fell swoop, like showing the jury inadmissible and denigrating the complaining victim. In other words, the attorney who acts like a jerk loses their client's case. Every time.

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