If you’re sitting on the law school fence, here’s what I want you to do! Sit in on a multi-day trial. It doesn’t matter what trial because all lawyers are basically the same person – with the exception of my amazing attorneys Amanda, Brick and Jeff, of course.
I promise, after just two short days of that unique brand of mental torture, you’ll forever disavow the notion of practicing any kind of law whatsoever. At least that’s the effect observing the Daniel Rak murder trial has had on me.
For those unfortunate souls who insist upon a legal career, in the vein of Father Guido Sarducci’s Five-Minute University, I’m gonna offer you the keys to the trial kingdom. You see, despite my utter lack of a law degree, my minimal intelligence (readers tell me this), and my surly manner, I could beat 90 percent of Kane County attorneys in a jury trial.
That ain’t bragging, either! It’s a sad commentary on the current situation. So, buckle your seatbelts because this is gonna be a long one. Here goes!
1. When you’ve made your point move on!
When both sides basically concede the defendant’s father was a blackout, falling down drunk, there’s no need to re-argue that point – for a full hour – two days into the trial.
First, it puts The Bard’s famous line, “Methinks thou doth protest too much,” into play, and second, you lose the jury to the point where they’re more interested in a court security conversation and who’s entering and exiting the courtroom than the trial.
Furthermore, when three separate big screen TVs are displaying a picture of the decedent lying on the floor, even the average juror can figure out he falls down. I wanted to blurt something out to that effect, but I don’t think Judge Tegeler would’ve appreciated that kind of intercession. Or perhaps he would’ve been grateful that I finally moved things along – you never know!
2. You don’t have to win every point
Because when you try to win every point, not only does your core message become completely obscured, those fine jury folks start wondering if they’re dealing with two bitchy sixth graders who don’t play well with others and they start tuning you out.
I understand foundation must be built, but I could barely keep track of 1.5 hours of testimony, and that jury will be sitting there for the better part of seven days – or more. Just let it go! It isn’t a boxing match where all the points count.
3. Don’t object, rebut or impeach unless it’s meaningful
I understand the judicious use of objections can disrupt the other guy’s cadence and set the groundwork for an appeal, but 90 percent of rebutting, impeaching and objecting is utterly unnecessary. Unless it really makes a difference, all it serves to do is highlight the point in question and make it seem much more important than it really is.
So here’s the rule! If what’s about to come out of your mouth does not move, reinforce or reiterate your core message, don’t say it!
4. Be prepared!
Even the Boy Scouts understand this basic precept.
You’re on a roll with a witness and the jury’s buying his testimony, but when it’s time to start submitting those exhibits, you discover they’ve been randomly placed in two large boxes. This, of course, leads to a ten-minute courtroom silence while you try to sort them out.
Meanwhile, your second chair, who hasn’t done much but sit there, could’ve prepared it all, but she chose not to bother.
So, what are the jurors thinking? That’s right! “Holy fuck, if he can’t get this right, why should I believe anything he says?”
5. Use all the courtroom space!
You may possess the most formidable courtroom presence on the planet, but that power is decidedly diluted if you’re standing behind a table or lectern every time you speak. And that’s especially true if the table is half your height.
So, within the bounds of judicial reason, MOVE AROUND THE COURTROOM during direct and redirect.
That jury is trapped in that box for hours at a time while they’re forced to listen to testimony that’s generally over their heads. If you just stand there, you become part of the courtroom scenery. But if you’re “kinetic,” the jury will follow you as you move, which means they’re far more likely to pay attention.
I’m not saying you should act like a squirrel trying to cross Randall Road at rush hour, but Bruce Springsteen doesn’t just stand there when he sings “Born to Run,” either.
You need your notes in front you, you say? Bring your bleepin’ legal pad with you.
6. Craft a core message and stick to it!
I used to think the late Johnny Cochran was kind of a courtroom clown, but as a professional campaign manager, I’ve come to understand his genius. “If the glove doesn’t fit, you must acquit,” is fucking brilliant.
Think about how the best political slogans caught fire; “Yes we can,” “Hope and change,” “It’s morning again in America,” “It’s the economy, stupid” and “All the way with LBJ.” They’re short, sweet, simple and memorable.
And they all managed to penetrate the average American attention span which is pretty much the equivalent of an off-meds ADHD sixth-grader coming off a three-day sugar and video gaming binge.
Considering the litany of life threatening ailments attributed to Jeffrey Rak, we’re I the defense, my simple message would be, “No one could possibly pinpoint the cause of death 52 hours after the fact.”
And I would say it in various iterations over and over and over again. Look at Donald Trump! If you repeat something often enough people start to believe it.
7. The jury is all that matters
While the attorneys frequently engage in a meaningless tit-for-tat battle over meaningless points, I haven’t seen either side look at the jury once since opening statements. Despite the fact they hold Daniel Rak’s life in their hands, the prosecution and defense act as if they don’t exist.
I don’t get it!
I’m not sayin’ leap into their laps, but why not make eye contact during testimony? Walk by them, smile at them, address them directly. Connect with them whenever possible. When appropriate, let them know a little bit about your own struggle so they can connect with you.
There’s no way they’re going to remember every bit of testimony, but they will remember an attorney who acknowledges their humanity and effort in a court system that generally does neither.
Just like it is with a political campaign, a jury trial is nothing more than an endeavor to get those folks to vote in your favor. So, you have to effectively communicate your message to get them to do that, and communication comes in many different forms.
All I can tell you is, the candidate with whom voters would most like to have a beer generally wins the race. So why would any rational attorney ignore the jury until closing arguments?
Now, let’s go back to the Rak case specifics.
The prosecution’s problem is, not only have they completely failed to connect with the jury, they’ve generally alienated them. All it takes is one holdout for a mistrial and a unanimous verdict is going to be a very high hurdle in this case.
But the defense has a serious problem too. They’re essentially trying to polish a turd. That isn’t a judgement, it’s simply the truth. The Rak family dysfunctional dynamic makes my fascinating upbringing look like the Brady Bunch with sprinkles.
If the defense loses the jury, something that’s already happening, those folks are going to start thinking, “We’d all be much better off with this kind of white trash in jail.”
So there you have it! And it was a lot less expensive than real law school, too! But since it was almost as long winded as some attorneys are, I’ll quickly conclude by saying I’m officially available as a trial consultant specializing in jury communication.
I’m not kidding!