The title of this post is, according to Terry MacCarthy (buy the cross-examination CDs!), the criminal-defense lawyer’s credo. I had always thought of it as descriptive — the way we are — rather than prescriptive — the way we should be. We should be prepared, shouldn’t we?
Yes and no. There are things we can prepare for, and things we can’t. Before trying a case, the criminal-defense lawyer (prosecutors, you can skip this part; it doesn’t apply to you; go on doing things the way you always have; these are not the droids you’re looking for) must be intimately familiar with the facts and with the law. She should know what the potential evidentiary issues are, both for her and for the government, and should know what the best arguments are on both sides.
She should know her witnesses’ stories well enough to help them tell those stories without a list of written questions — with no notes, or minimal notes. The criminal-defense lawyer should know the story she wants to tell on cross-examination well enough that a list of topics or key points will keep her on track.
The friendly witness cannot be trusted to stick to the script on direct examination. Neither can the hostile witness on cross-examination. The more specific your roadmap for an examination, the more likely it is that the witness will leave the road and throw you. Also, the more detailed your notes for an examination, the less likely it is that you are listening to what’s going on in the courtroom. (Please see Why Mindfulness Matters in Trial.)
What’s true in cross-examination is also true in voir dire. The more you try to make the jury selection process follow your script (please see Good Voir Dire / Bad Voir Dire, unless you’re a prosecutor, in which case you want to go home and rethink your life), the less likely you are to get meaningful information or build rapport with your jurors, and the more likely you are to be frustrated.
In other words, the more prepared you are the more likely you are to fail. Be ready, but not prepared. In other words, be mindful.
Jury master Anne Reed, in her Ready for Anything post, says, “You need to be ready for what you’re not ready for.” With that little koan, she’s talking about surprises during jury selection:
The juror who tells you she has seventeen cats, the juror who tells you his child was killed, the juror who isn’t a man after all — you can’t botch these moments.
You also can’t possibly prepare for them. Anne’s point is that you need to be ready for those things that you can’t possibly prepare for. If you prepare for the cat lady, the grieving parent, and the transgender juror, you’ll be facing a professional sword-swallower, a MADD board member, or a pardoned ex-felon instead. The variety of human experience is truly unfathomable.
Your compassion, your awareness, your intelligence, and your character will be judged on how you handle the next thirty seconds.
You’re not just doing it for the juror who’s revealed the unsettling story; the way you relate to one juror is the way you relate to all of them. They may not all like each other or agree with each other, but by the time voir dire starts they have formed a group, and you’re not (yet) a part of it.
I’ve seen lawyers shut down entire jury panels forever by being dismissive of jurors who say things that they — the lawyers — don’t want to hear.
You need to be at the very least, as the transgender juror hopes, discreet. Warm, engaged, and unfazed would be better.
Discreet, warm, engaged and unfazed are a tall order. They can’t be scripted, you can’t pretend, and you can’t prepare. Be ever ready, but seldom prepared.