Trial Bonding

Defending people should be personal. A human being has put his future in your hands, and someone is trying to take that future away. “Don’t take it personally” is lousy advice; it may not be necessary to care about the human being you’re defending, but it helps—when a lawyer cares about his client, the jury feels it.

A funny thing often happens in a criminal jury trial, though: lawyers who are striving righteously to beat each other’s metaphorical brains out in front of the jury often come out, after a few days or weeks in trial, not only respecting but also liking each other.

I’m not sure I can say why that is—the activation of some warrior’s code, perhaps, that drives lawyers to appreciate the character and talent of her adversaries even put to the unholy service of an attempt to ruin our clients. Any of us could, with one unlucky break, have wound up prosecuting instead of defending.

It’s not dependent on the outcome; these kindly feelings don’t come from winning or losing, but from fighting. There may be an ethic of sportsmanship involved—while trial is not a game, it attracts competitors, and that generally means people who have learned to be gracious in defeat, in victory humble, and to respect the competition’s skills.

I recently had an experience with a prosecutor whom, for about a decade, I had seen (based on knowing him around the courthouse and dealing with him on cases but not in trials) as rigid and humorless. In trial against him I saw immediately that my assessment had been wrong—he was personable and imaginative, and (like Antira Jones) self-confident enough to be cordial (in this, he benefited from contrast to his trial partner)—and after three days I frankly liked him.

It is not always so. Sometimes a few days in trial just serves to reinforce a negative opinion of a lawyer; I’ve even come out of jury trials with the disturbing realization that opposing counsel (or even codefendant’s counsel), whom I had thought a nice enough guy, was an unpleasant bundle of personality disorders wrapped in a second-rate brain.

3 Comments

  1. I was in a motions hearing with a prosecutor I liked before the hearing. I liked him even more afterward though I didn’t like the ruling. Our appreciation of each other increased and, somehow, because we had done our research and was prepared to argue zealously, it felt as though justice had been done. Then I filed the appeal. 🙂

  2. Absolutely true. I have developed life long friends with trial opponents, especially those that fought the hardest to beat me. Mutual respect began in the courtroom, and eventually we developed firm friendships based on common interests and similar experiences.

  3. Mr. O’Brien, hello, hope you are doing fine and enjoying retirement. Regarding ‘Trial Bonding’ we are curious as to the level of respect a prosecutor has towards an attorney/lawyer that TAPS out during lunch recess without so much as clearing his throat, much less throwing any punches? You know, the ones that spends his/her lunch hour relentlessly going back and forth to the holding cell until the client finally agrees to sign Nolo Contendere docs. in the Judges chambers. Thank you and have a good day.

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