Levels of The Trial Game

by: Willie Dow

A writer named John McPhee once authored a book called Levels of the Game. He wrote of tennis' Arthur Ashe and the New York Knicks' Bill Bradley. McPhee's theme was that the games as these athletes play them involve a lot more than the obvious hitting a ball across a net or throwing it through a hoop. When played at their best, each game involves a level of play not obvious to the untrained eye.

The same is true of trying cases. I am repeatedly reminded that being a trial lawyer requires more than standing on one's feet glibly befuddling witnesses or enthralling juries with clever analogies and wise metaphors. There is an even more important, less obvious level to our game: getting clients to comprehend the legal realities of their cases and to make decisions for which there is a supporting rationale. A trial lawyer -- any lawyer -- must provide good counsel. It is an essential part of effective representation.

Lawyers can live with clients' decisions. We try cases for a living; we don't live them. We don't suffer the losses our clients experience. We go on to other cases. When a client makes a wrong choice about going to trial, we can be satisfied so long as that client's decision was based on available information and employed some rationale, even if one we disagree with. When a client refuses to accept and process information or employs no rationale for a decision, lawyers know that level of the game has not been played well. We feel responsible when this happens.

I was recently involved in two cases, both losses, which demonstrate the play on that level of the game. I have no misgivings about the way I tried those cases. I believe any lawyer would have gotten the same results. Although both defendants were found guilty, one case was a predictable disaster; the other was surprisingly satisfying.

The first case involved a drive-by shooting -- one dead, another injured. Fingerprints were recovered in the stolen car as were drops of blood. The defendant, call him John, insisted on submitting his blood for more refined testing, the results of which added even stronger evidence to the matching fingerprints. John had also given two separate and contradictory false exculpatory statements. This was, in short, a case that should be resolved without a trial. A plea bargain would yield a much lighter sentence than a conviction after a jury's verdict.

John, a young man in his early twenties, could not, would not, appreciate the dimensions of the risks he was facing. The prosecutor's initial offer was reasonable. It got even better during the trial when a confused police officer misstated the time of the offense, offering the illusion of a "can't be in two places at the same time" defense. The iron was hot. That was the time to strike for the officer would surely be unconfused the following day after the prosecutor's redirect. I seized the moment and elicited a bargain-price offer from the state. But John could not see the looming disaster. He refused to talk about the evidence. He gave no reason for rejecting the offer. I recognized that clients often mistrust a gladiator who turns from the battle and counsels retreat. I called upon others -- friends and family -- to provide the smelling salts of logic and reason. They were the wrong messengers. Rather than helping they merely fanned the flames of irrationality. I called upon other lawyers who had represented John and his family in the past to counsel the wisdom of plea bargain, but they could not douse the flames. John just said no. He simply refused the offer. But even when pressed he could never give a reason for his decision.

Was there someone else who could have better delivered John the message? Could I or anyone have presented the options more effectively so John could have made a better decision? Would that have made a difference? I don't know. I wish I did, because I am frustrated by my play on that level of the game. The skill needed here was not a tap dance through mystifying blood evidence nor hyperbolic exploitation of an officer's misstatement. It was getting a rational assessment of the rocks in the legal waters. John did not play the game on this level. The result was a guilty verdict and a long sentence.

The second case was the opposite experience. It was a federal prosecution for insurance fraud. I was the defendant's second lawyer. My client, call her Anne, was a woman in her forties, completely subservient and devoted to her co-defendant whom the Government saw as the made genius of insurance fraud. Anne was selfless. Her life was devoted to filling the needs of others; indeed, she defined herself by her usefulness to others.

The Government's perception of the co-defendant was accurate. He was a demonic schemer who made Machiavelli look like St. Francis of Assisi. Anne and he were a perfect mismatch. She had been his companion, lover and devoted servant for her entire adult life. He used and disposed of her like a paper napkin, degrading her, berating her, and requiring her to do menial tasks knowing all the while she would feel fulfilled in doing them. He gave directions and she mindlessly followed.

The trial followed a long and thorough investigation. The evidence of guilt as to both was overwhelming. Along the way, the Government had solicited Anne's cooperation in exchange for leniency. Conviction was all but certain. Cooperation was the wise strategy. With her testimony against the demon, the Government would move for a downward departure from the projected sentence of nine to ten years.

I counseled this approach. But Anne, because of who she was, simply could not cooperate. She was so dependent that she could not extricate herself from the co-defendant's clutches. She knew she would be found guilty, but her devotion would not let her act to harm him. She would rather spend time in jail, she said -- even more than he- if that would "help" him.

Anne rejected the offer, refused to allow a motion for severance, and forbade a trial strategy that would emphasize his manipulative ways and minimize her participation. She simply would not let me attack him. Rather than getting lost in a corner of the courtroom, she scurried around like a scullery maid, attending to his every wish, providing him with paper, documents, pencils, and refreshments, all in front of the jury. Anne had rejected my advice, but she had a rationale, albeit misguided, for her decision.

The jury was turned off within three days. Three weeks later their quick verdict was guilty.

But at the end this was not the disaster I had projected. Although I had encouraged Anne to take the deal and testify against the co-defendant, had she done so she would have been racked by guilt and left an emotional basket-case. The evidence Anne absorbed at the trial and then her conviction taught her at long last how evil and Machiavellian her companion was. He had been unfaithful to her throughout their relationship. At trial he blamed her for things that she had not done.

During the pre-sentence phase, with psychiatric help, Anne began to appreciate even more how she had been used. Finally, thanks to the fine professional work of a psychologist and psychiatrist, an insightful judge and sensitive prosecutors, she received, ultimately, the same lenient sentence she would have had she testified for the prosecution. More importantly, she walked away from this experience -- albeit into jail- completely severed from the co-defendant. Her emotional health has never been better. Anne now has a separate life from him. She has recently been released and is leading a new and better life on her own.

The difference between John and Anne is that Anne made a decision for which she had a rationale: she would rather go to trial than hurt her companion, understanding that the odds were against her. Anne was able to play the game at that level. John could not. He could not process the information and weigh the alternatives. He merely closed his eyes, plugged his ears, and lurched forward through the trial. Anne understood the options she had, chose one, and had a reason for doing so. John never appeared to understand. Was that his fault or mine?

Lawyers can live with a bad verdict if the game has been played through on all levels. Not every backhand falls inside the lines nor does every jump shot find the bottom of the net. It's when the client doesn't or can't play on that less obvious level that a bad verdict really hurts and painful second thoughts remain.