Although several attorneys claim to write it and several publishing companies claim to sell it, there really is no such thing as a true “lawyers’ trial handbook.” Rather, the rules of the road and the hints, tactics, and strategies that the successful litigator follows are learned from a strange combination of law school education, mentoring from other attorneys, osmosis from experience, conversations with judges, continuing education courses, books, tapes, the trials conducted by others, and the occasional late night rerun of a lawyer-based television show.
It is through this hodgepodge the attorney subconsciously develops his or her own view as to what is important, what “works,” and what is not as crucial as others may think.
One chapter that most assuredly resides in every practicing trial attorney’s “handbook” however, is the chapter entitled “Catch the Other Guy Lying.”
For years, it has been obvious to all involved in the law that nothing helps a case more than catching the other side lying about something having to do with the matter being tried. Once the judge or jury believes the party is lying, it gives rise to the rhetorical question of “why would they lie, unless they are in the wrong?” Accordingly, trying to find the evidence and the proper method of confronting the witness which will expose the lie on the stand is an important tool in every attorney’s arsenal. Catching the ‘Other Guy Lying’ is a preeminent chapter in the trial handbook of an attorney’s life.
Recently, however, that chapter had a new section added. For those attorneys who watched, read about, or otherwise absorbed the recently decided Casey Anthony trial, the handbook now includes the section entitled “The New Lie vs The Old Lie.”
For those of you who have been under a rock, or perhaps in Iraq, the last few weeks, the Casey Anthony trial involved the trial of a mother for the alleged murder of her baby daughter.
The prosecution was unable to muster much hard evidence, and was left with a circumstantial case. All seemed to be going well, however, when the prosecutor established that the defendant mother’s claim that she had heard from the baby’s nanny, named “Zanny,” saying she had the child during the period the police claimed she was already dead or missing, was a lie. There was no such nanny Zanny.
It seemed to get even better, when the prosecutor established that the mother’s claim that she had been at her office at Universal, working during the time certain crucial events transpired, was also a lie. In fact, she had never even worked at Universal.
When the jury returned its verdict, however, there was no murder conviction, no assault, and no child endangerment. Rather, the lying defendant was convicted of only that – lying.
Why this result? The Defense successfully established that their client was a pathological liar, and that the lies the prosecution was trying to use to establish an inference of wrongdoing could not be reasonably seen to do so. They acknowledged the lies, and in fact embraced them. Defense counsel established however that they were not “new lies,” created in an attempt to hide some misdeed, but rather were long existing lies which had been part of their client’s pathological lying life for years, long before there would have been any reason to fear police.
Faced with the “old lie, not a new lie” revelation, the jury found no reason to infer anything from the myriad of lies that were established. Lacking that inference, the case fell apart, and the verdict was foretold. Although many in the non-legal world have decried the verdict, most lawyers and judges who followed the case were not surprised. The evidence to convict was not there, and the practical sway of the lie which often bridges such gaps with juries did not hold true.
So, the handbook has now been amended. Establishing that the “other guy lied,” is not enough. Rather, the skilled trial attorney must establish that “the other guy lied about something new,” in order to achieve the tactical result we all seek.
So much for the people who swear you can’t learn anything from tabloid television.
© 2011 under analysis is a nationally syndicated column of the Levison Group. Charles Kramer is a principal of the St Louis based law firm, Riezman Berger PC. Comments or criticisms about this column can be sent c/o this paper or direct to the Levison group at comments@levisongroup.com.