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February 21, 2006

You lose, suckaaaah!

I argued a suppression motion (statements and evidence) today and at the end of it that's what the judge said to me: You lose, suckaaaah!

So let's see what we learned today:

  1. You can never prepare too much for any court proceeding that requires questioning witnesses and/or making arguments. I repeat: There is no such thing as over-preparation!
  2. Cross examinations are hard. When the witness doesn't say what you were hoping/expecting, you have to pick up and keep moving or you'll look really stupid. More preparation (e.g., investigation) might reduce the chance you'll get answers you don't expect or don't want. See lesson number one, above.
  3. Asking leading questions without sounding hostile or petulant is an art.
  4. Remember: If a judge overrules your objection, it's generally a fairly bad idea to make it again just to see if she's changed her mind in the last 30 seconds.
  5. When the judge makes and sustains her own objections to your questions w/out any prompting from opposing counsel, that's probably a good sign you're seriously screwing up. It is also a sign that the prosecutor may be incompetent or asleep at the wheel, but forget about that—it will only make you feel worse when you eventually lose.
  6. Judges believe cops. Get used to hearing the words, “the court credited the testimony of the police officers.”
  7. Judges do not believe defendants. Get used to hearing the words, “the court did not credit the testimony of the defendant.”
  8. Innis may not be as handy as it seems to defense attorneys.
  9. Pulling together arguments on the fly and incorporating all of the important evidence just elicited at a hearing is crazy tough. There were at least three big things I forgot to say in my final argument, dammit. They almost certainly wouldn't have changed the outcome, but I still wish I'd said them.
  10. It takes concentration and constant vigilance not to make faces at judges who insist on spending five minutes describing in painful detail why they are basically ignoring everything you've been saying for the last two hours.
So yeah, all around it was a, um, good day. I learned a lot. For a couple of hours after the hearing I just kept thinking about what I wished I could say to the judge to explain all the things she seemed to ignore or miss or not care about. But that's not possible. You get your chances at well-defined times in court, and if you forget to say something or say it poorly, too bad for you, and more importantly, too bad for your client.

In the end, although it was tough to hear how absolutely my motions were denied, my client got a pretty good sentence of all suspended time and a few months supervised probation. He was pleased to be staying out of jail so all's well that ends well, more or less.

And hey, tomorrow's another day, and in front of the same judge, too. You're jealous, aren't you?

Posted February 21, 2006 09:03 PM | 3L crimlaw

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I am jealous, actually. :) Sorry it was a rough day, but walking out with some new insights is always a good thing!

Posted by: Dave! at February 22, 2006 12:26 AM

Next time, go all Al Pacino on the judge and yell, "No, you're out of order!" : )

Posted by: moneypenny at February 22, 2006 04:06 PM

Good post. You're learning a lot of things that even some practicing lawyers don't know. (Or, don't act like they know, at least.)

Posted by: blondie at February 22, 2006 06:15 PM

Did your teaching experience in grad school in any way prepare you for dealing with witnesses? I'm thinking of the skill needed to think on your feet when your students say stupid/irrelevant things or things you never expected? "Gee officer, that's a great point, but lets come back to that later" : )
Considering the stakes involved, I realize it's laughable to try to compare the two, but was wondering what you thought.

On a side note, do law schools have an equivalent to a teaching assistant?

Posted by: moneypenny at February 22, 2006 11:09 PM

Moneypenny: Yeah, I would so love to pull out the Pacino. But that's actually one of my problems in court -- I have to keep the emotion in check b/c it makes me ask stupid questions or otherwise screw up.

I think that's one of the lessons of teaching, maybe -- you can't just react "normally" to stuff that happens in a classroom or courtroom b/c you're on a stage and people are watching. Instead you have to keep a calm exterior and be thinking fast on your feet to deal w/whatever comes at you.

I actually hadn't really thought much about the comparison, but now that I do, it's very apt. As a teacher you have a lesson plan and a list of points you want to make about a text or whatever. So you ask questions to try to elicit responses that will make those points and when your students head off in other directions you have to pull them back on task or the class will end up being a waste. The same is true for a direct or cross examination of a witness -- you're basically doing exactly the same thing.

I'll have to think more about this. You'd think I'd always be making connections like this between past and present experience, but that's not true. Thanks for pointing out the possible similarities.

Posted by: ambimb at February 25, 2006 10:07 AM

well, now you have nowhere to go but up! at least you won't be making these same mistakes in your real job. and you know your next hearing will be sooooo much better because you've experienced this one.

you'll be kickin' butts in no time!

Posted by: monica at March 1, 2006 10:31 AM

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