Lessons From the Courtroom

Malcolm Gladwell wrote a great book titled Outliers. The book covered the careers of The Beatles , Bill Gates , and others. The premise of the book is that one does not become an expert until they do something over 10,000 hours. After 22 years of practicing criminal defense law, I still learn something new each week. Here are three lessons from the courtroom from Sumner County General Sessions Court last week;

  • File motions.

The charge was child abuse. One of the elements was that the neglect adversely affected the child's health and welfare. No proof was stated in the arrest affidavit. I filed a motion to dismiss based on a lack of evidence of any real harm. The motion caused the assistant district attorney to look more closely to the case. The case was retired for 90 days on condition of attending a parenting class.

  • Never agree to be interviewed by the police without a lawyer.

The Sixth Amendment of the U.S. Constitution sets forth one of the fundamental rights of speaking to a lawyer before being questioned by police. An interview was given. Police have extensive training on interrogations. It can lead to false confessions or deception to avoid any problems. Statements taken out of context lead to a arrest for theft. Case was prepared for trial. Case was later retired.

  • Be a sentencing advocate.

Family did not make a bail bond for a loved one. Let him stay in jail to teach a tough love lesson.  Screened in jail for recovery court. Bonded out. Recovery court recommended intensive outpatient treatment. Burglary case reduced to a misdemeanor. Felony and more jail avoided. Used the jail time he served and the treatment option to avoid a felony and a harsher sentence. Sometimes people are guilty. Be a sentencing advocate to help save a life.

Those were last week's lessons from the courtroom. I am thinking this might be a new category of the blog. To my fellow criminal defense lawyers, what are your lessons from the court room ?




Books Law Students Should Read

I came across an article in the Washington  Post by law professor Michael Krauss. The article is simply a list of books to read before you enter law school. It might also cover practicing lawyers since I have only read two of the books on the list. Lawyers get trapped into how they think about a case. Mr. Krauss opines this list is an overview of the values and challenges of the legal profession. Here is the list. You can go to the link to get a summary of each book.

  1. Truman Capote." In Cold Blood."
  2. Brooke Goldstein and Aaron Eitan Meyer. "Lawfare:The War Against Free Speech."
  3. Harper Lee. "To Kill a Mockingbird."
  4. Karl N.Llewellyn , "The Bramble Bush."
  5. Herman Melville, "Billy Budd,Sailor."
  6. Publius ,"The Federalist Papers."
  7. Patrick J.Schiltz,"On Being a Happy , Healthy and Ethical Member of an Unhappy , .Unhealthy , and Unethical Profession
  8. B. F. Skinner , "Walden Two ."
  9. Barry Werth , "Damages."


Confession . I have only read two books on the list. I read Billy Budd my junior year at Castle Heights Military Academy . I finally got around to reading To Kill a Mockingbird on it's 50th anniversary .It looks like I might visit Amazon later today .




The Fourth R

The last R for trial lawyers is remember. Once you relax , rehearse , and  react , you have to remember. Remember what happened , what worked , and what failed . Why do we want to remember ?  Great trial lawyers don't want  to make the same mistake twice.

How do we remember ? We start with the creation of a trial journal . What would it contain ? Several years ago , I got a trial notebook written by Florida lawyer Elliott Wilcox . The basic idea of the notebook is to find the lessons learned and things to do differently. Here are some of the areas;

  • Theme
  • Jury selection
  • Opening statement
  • Direct examination.
  • Cross examination
  • Closing Argument
  • The most important lesson learned.

I write in the notebook after each trial. New lawyers should start one just for hearings or motion hearings. I hope you found the four Rs' series helpful. I always invite your comments.

The Third R

The first two Rs' were relax and rehearse. The third R is the ability to react. I had lunch with a civil lawyer a couple of weeks ago. The conversation turned to civil trials. He commented on there are no surprises in a civil trial .Everyone knows what is going to be said and done. The major difference between civil and criminal trials is the scope of the discovery process. In a civil case , there are interrogatories , request for production of documents , and depositions. Discovery in a criminal case is limited. A criminal defense attorney can not take a deposition. A witness does not even have to talk to a defense lawyer or an investigator.

You must be able to react . The judge throws you a curve ball. A witness changes their statement . Being prepared to react on your feet takes some practice. You have to be under fire a couple of times in order to grasp this skill. There are a few ground rules that may help you;

  • Master the rules of evidence.
  • Master the rules of criminal procedure.
  • Learn key criminal law cases.
  • Be prepared for a curve ball.

Remember , a criminal trial still has some surprises . You must be able to react to any situation that arises.




The Second R

In yesterday's post , I talked about the first R which is to relax. The second R is rehearse . Coach Bosque spoke about thinking  about the play before it happened and play in his mind what he was going to do with the baseball if it was hit to him. Preparing for a hearing or trial is the same.

The typical lawyer gets ready by reading the file , meeting with the client , interviewing witnesses , and reading the key law on the topic. It might be a better means of getting ready for a case is to rehearse . I was exposed to some techniques at the Gerry Spence Trial Lawyer's College.

The core basis of the Trial Lawyer's College is the use of psychodrama to prepare your case for trial. a blog post can't cover the topic but I want to leave you with some ideas.

  • Rehearse your opening statement. Give it in front of the mirror , your loved one  , or any way you choose.
  • Know the battlefield especially if you have never been in that court before.
  • What will the judge allow ? Will the judge cut you off ? Increase bond if you have a hearing ? Know the judge.
  • Know your opponent. Everybody has strengths and weaknesses.
  • Rehearse your voir dire. I have even hired folks to play jurors so I could practice my jury selection.
  • Do a focus group.
  • Have your client cross examined by another lawyer.
  • Play the hearing or trial in your mind . Visualize the trial.
  • Have your client assume the role of the complaining witness . Then have the client to state the point of view from the complaining witness.
  • Talk to friends , other lawyers , or folks you know about the case.

I just mentioned a few ways to rehearse . But think about it. A baseball player stands in the on deck circle. he swings his bat to get rid of muscle tension. He looks at the pitcher throw the ball. In his mind he sees the pitch coming to the plate . He swings the bat and knocks it out of the park. Now he is ready to step up to the plate to face the pitcher when it counts. He is ready because he rehearsed. Criminal trial lawyers should rehearse as well and not just read the file.


The Four Rs'

During the break between Christmas and New Year's , I took my son to a baseball camp in Cleveland , Tn. At the workout there are some college coaches around while they work on some baseball skills. We had a little time before we headed back to Nashville . So , I signed him up  for a one on one lesson with Willie Bosque a scout from the San Diego Padres for a infield lesson . I watched for a little bit as he worked on a nuance of playing infield called the transfer . I got bored and started reading a book until I heard Willie talk about the four Rs' My ears perked up.. It made sense to me and it immediately hit home after I talked to some new lawyers getting ready for their first court hearing. The rest of the week the posts will be about the four Rs' and how they relate to a criminal  trial practice.

The First R is Relax.

Before you announce to the judge ready , cross examine the first witness , or voir dire the jury , the key is to relax . Take a deep breath. Gather yourself and your thoughts. There have been trials since Socrates .Here are ten thoughts on how to relax before your first hearing or trial :

  • Meditate. Find a quiet spot at home or somewhere else to gather your thoughts.
  • Breathe deeply.
  • Be present in the moment.
  • Reach out to friends or find a mentor.
  • Tune in to your body and mind.
  • Laugh. Laughter is great to relax.
  • Music. Listen to a song that pumps you up or relaxes you. I know of a lawyer who picks a theme song for every case. when he works on the case , he plays the song.
  • Move. Tale a walk. Hit the stairs in the courthouse.
  • Be grateful. You have a law degree. You are representing someone charged with a crime. You are there to help that person.

In sports there are all types of methods to relax. One is to waggle the golf club before you swing. It is a way for the body to tell the mind to get ready . I see one friend of mine doing little Tai-Chi moves in the hallway of the courthouse. Just find your way to relax.

"You miss 100 percent of the shots you never take"


Wayne Gretzky was one of the best hockey players ever to put on skates. He had a great line which is the title to this post "You miss 100% of the shots you never take.' That advice is very true for criminal defense lawyers. A criminal defense attorney must take the shot early and often.

I see time and time again where a criminal defense attorney waives a preliminary hearing. Why ? My usual answer is lazy or does not want to make the assistant district attorney or judge mad. Take the shot . .Develop  a defense. Show your client your are fighting for them. Exploit some weakness in the case that will help you at trial or drive a more favorable plea bargain.

The probable cause for the traffic stop is questionable. File the motion to suppress . Take the shot. Here is a recent example of taking the shot. Client arrested with a .37 BAC. The stop was in question based on State of Tennessee v Kirk Williams . If you are a DUI attorney you must read and understand this important case. So , I file the motion and we were able to resolve the case to a favorable result.

If you are going to hire an attorney , ask them about their take on hearings , motions , or trials. Do you want to entrust  your case to a lawyer who won't take a shot. Wayne Gretzky is 100% right. I will keep on taking my shots. I hope others follow. Who knows you might be holding up the trophy or hearing the two word verdict.

Qualities of Winners

I started reading James McElhaney's Trial Notebook. Mr McElhaney has written over the years on litigation for the American Bar Association. Here is his list  for the essential qualities of winning attorneys ;

  • Want to help others.
  • Need to right a wrong.
  • Must maintain high ethical standards.
  • A need to know everything.
  • Need to communicate.
  • Winners must have goals.
  • Be imaginative
  • Be energetic and persistent.
  • Be realistic.
  • Not afraid to fight.

I have read Mr. McElhaney's columns for years and I have always learned something . Chapter one of his book was a great start.

Lessons in Choosing Your Criminal Lawyer

A murder trial in Washington D.C. was the scene  where a client made a poor choice in his attorney for his pending murder charge . Judge William Jackson relieved  Joseph Rakofsky during the middle of the defendant's murder trial. The judge made findings that the lawyer didn't have a grasp of legal procedures . The last straw occurred Friday when Rakofsky's private investigator made a filing in court alleging that Mr. Rakofsky wanted him to fabricate a witness's testimony. Rakofsky encouraged his investigator to undertake unethical behavior and then refused to pay the investigator. One last tidbit , it was Rakofsky's first trial. No , he didn't want to start out on a simple theft case . At least Cousin Vinny won his first trial.

Several of the criminal law pundits in the blogoshere have crucified Rakofsky for his marketing and his trial conduct. I would agree that he got in over his head and from reports acted in an unethical manner .  Moreover , he shouldn't have accepted the case .Worst of all he bragged on his Facebook page of getting a mistrial. Most lawyers get a mistrial when the jury is deadlocked not when they can't try a case . Also , what exactly is the blogoshere and does it matter ?

The lesson in this story is how to you hire a criminal defense lawyer . In Nashville , Tn., someone accused of a crime gets about 20 letters in the mail soliciting folks as clients . Do you hire a criminal defense lawyer because they have a nice letter and will represent you for four hundred bucks. No. You should hire a lawyer on years of experience , training , the willingness to take cases to trial , have preliminary hearings ,and basically fighting the man. it appears Mr. Rakofsky made dubious claims on his website. One question you might ask is have you tried any cases like the one I have been charged . One lawyer in Nashville even puts on his website I don't take cases to trial . Is that guy respected by the D.A.'s office ?  The bottom line is to check your lawyer's credentials out .

Knowledge Of The New DUI Laws In Tennessee

It saddens me to report most DUI lawyers in Nashville, Tennessee have no clue as to the new DUI laws in Tennessee. The 2010 Tennessee State Legislature enacted several tough DUI laws. I have been been posting blog posts on the topic .I was asked to present a talk on the subject by the Tennessee Bar Association.The Tennessee Association of Criminal Defense Lawyers sponsored a DUI training session where Sara Compher-Rice provided an excellent summary of the laws. I presented the new laws to a gathering of lawyers this month.Yet,lawyers have been asking me daily on the new DUI laws.

What does it take to be a great criminal attorney ?

Read and study the law and especially the new laws. It's a crying shame that the new laws came into effect and they are just now learning a client can't get bond on a DUI second offense.In Nashville , the General Sessions review docket is the answer. However , you have to hire a lawyer ASAP to get on the case.If you need help for a loved on with a DUI in Nashville or Middle Tennessee, send me an email Rob@RobMcKinneylaw.com

One last thought.If you are thinking about hiring a DUI lawyer ,ask them this question.How will the new Tennessee's new drunk driving laws(DUI) impact my case ? I am curious to know their answer.

Thoughts About Our Role As A Criminal Defense Lawyer

Seattle Trial lawyer Paul Luvera wrote an excellent post on his thoughts of being a plaintiff's lawyer. I thought his commentary applies to criminal defense lawyers as well.Here is his two points and with some of his observations ;

  1.  We must be willing to fight for what we know to be right.

Criminal defense lawyers must be willing to fight the fight for the clients. We must defend the Constitution in every case or watch it be eroded with each opinion from an activist court.

Our 26th President, Theodore Roosevelt gave a famous speech at the Sorbonne in Paris April 23, 1910 which became known as the "the man in the arena" speech. He told the audience:


"It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes up short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat"

2. We must have dogged determination in the face of adversity

The key to achieving success for our clients lies in overcoming adversity with dogged determination. Calvin Coolidge was the 30th President of the United States. He once wrote:

"Nothing in the world can take the place of persistence. Talent will not; nothing is more common then unsuccessful men with talent. Genius will not; unrewarded genius is almost a proverb. Education will not; the world is full of educated derelicts. Persistence and determination alone are omnipotent. The slogan "press on" has solved and always will solve the problems of the human race"









Continue Reading...

DUI Trial Tip of the Day


My trial tip of the day is to have a single or limited theory of the case. In a drunk driving (DUI) case , there are many defense theories that may be available.Pick the strongest and stay with it. Here is an example.Today , I had a case where there were two key issues.The strongest point was the issue of physical control of an automobile.So  instead of fighting the high breath test, I  focused on whether the client was in physical control of the car.By the way , my commentary on the physical control rule under Tennessee law is that it needs improvement.Under Tennessee law we are punishing a driver who decided they shouldn't drive by sleeping in the car then arresting them.

If it is a breath test case and your defense is acid reflux , talk about acid reflux and that a breath test machine may read the result in error.If it is a disconnect case , talk about that the physical manifestations not equaling the blood alcohol test.Pick the defense and show how the facts fit in that single category.A shot gun is a good weapon to shoot ducks , quail and friends of Dick Cheney.It is not a good weapon to attack a DUI case.You need a laser focus.


What It Takes To Be A Great Criminal Defense Lawyer

Today starts a new topic for the Nashville Criminal Law Report .Brentwood , Tennessee lawyer John Day wrote a series of posts on " What it takes to be a great trial lawyer". I read Mr. Day's series of posts with a passion.  As I sat in court listening to a sentencing in criminal court here in Nashville , It reminded me of his thoughts. and observations. So here's my thoughts on " What it takes to be a great criminal defense lawyer.

                                              Know The Tennessee Rules of Evidence

As I mentioned earlier , I was watching a sentencing hearing while waiting for my case to be called. The defendant had plead guilty to  aggravated assault and was testifying as to his story of what happened . The Assistant District Attorney was cross examining him trying to impeach his testimony based upon a prior statement.to the police. One warning never talk to the police unless you have a lawyer with you. The method of cross by the state was against the rules. The defense attorney made a timely objection. However,  the court did not make any rulings because the objection was not precise as to reason the cross examination was improper.

The Assistant District Attorney was cross examining the defendant from a police report on what was alleged to have been his statement. No transcript or written statement was used.

One quality of a great criminal defense lawyer is you must know the Tennessee Rules of Evidence backwards and forwards. The second teaching point is always have your client read any report that may have his statement in it before he testifies at any hearing or trial.