Vail Daily column: Knowing when to stick a cork in it
October 9, 2012
An apocryphal story is told in law school.
The story goes like this:
A guy was injured in a bar fight. Blows were exchanged over some drunken thing or another and at some point the combatants stumbled to the ground. There, they wrested like puppies tumbling over one another. Angry puppies. In the course of the melee, among the cheers and jeers, one guy upped the ante. By the time the scrap was over, one of the guys was missing his nose. S— happens. Still, the newly noseless guy was not amused. He called the cops, the cops showed up and fingers pointed at a particular one of the bruised and battered barflies. For the sake of convenience alone, let’s call the guy Mike Tyson.
Mike Tyson makes a trip to local constabulary where he’s processed. He’s advised of his rights and after months of various court proceedings, he comes to trial. Mike, having blown through what was once a considerable fortune, is penurious. He is represented by a young court-appointed attorney. The guy is so green behind his ears you’d think it was spring harvest in Olathe.
A witness to the brawl takes the stand. He’s sworn to tell the truth, the whole truth and nothing but. He takes his seat.
After a few softballs, the Deputy District Attorney asks the witness the money question. He crooks a finger at the accused and asks of the witness, “Mr. So-and-So,” did the defendant bite the victim’s nose off?”
The witness hangs his head. “Yeah, “he says, “he did.”
The D.A. pins his arms behind his back and stalks off like a vulture. Before he takes his seat he pitches to the young, green lawyer. “Your witness, Counsel.”
The young guy pops to his feet. In his own mind, he owns the courtroom. He strides importantly back and forth, then screw his eyes like diamond augers into the witness. “Mr. So-and-So,” he says, “did you actually see my client bite off Mr. Holyfield’s nose?”
The witness looks chagrined. “Well, no,” he says.
This is where our young, green lawyer should have stopped. A polite, “Thank you. No further questions” would have done.
Instead, what he did was this.
He pounced. He inflated like a bellows. He blew up to twice his size and said, incredulity dripping from his every word, “So you did not see poor Mr. Tyson bite off his nose, did you?”
“You did not?” He polls the jurors, one by one.
“You did not see my client bite of Mr. Holyfield’s nose? Then how, sir, can you claim to these good people of the jury that my client” – he points – “poor destitute Mr. Tyson, is the culprit?”
So-and-So swallows hard. “Because, he says, “I saw him spit it out.”
Sometimes, what you don’t say matters more than what you do. Sometimes, the unasked question is the one that matters. Part of the art of lawyering is knowing when you have enough. Or when the ship is sinking and it’s time not to load on further ballast. Sometimes, it’s simply better not to be the hero.
Most lawyers “prep” their witnesses before trial. There is, by the way, a distinct and important distinction between “prepping” and “coaching”. “Prepping” is simply letting the witness know what to expect and how to answer.
Most lawyers go through a drill that goes something like this: “If you’re asked a question, answer the question. Got it?”
“Answer the question and nothing more. Understand?”
“OK, let’s practice.”
“Do you have siblings?”
“I have an older brother who lives in Topeka, an older sister who is divorced and raising two kids on her own, and a younger brother who thinks he’s going to be the next Cy Young.”
“The answer,” you say, “was ‘yes.'” Here you narrow your eyes. “Understand?”
“Let’s try again. OK?”
You hold up your pen. “Do you know what this is?”
“It’s a pen.”
Your eyes cut to wicked slits.
“A fountain pen?”
You say, “So you do. The answer then, was ‘yes,'”
“Gimme one more chance.”
“Let’s move on to tougher stuff.”
“The chicken or the egg?” you ask.
“How am I supposed to answer that?”
“Well, if you know, then ‘egg’ or ‘chicken’ works just fine.”
“And if I don’t?”
“Then say you don’t.”
Your witness nods his head.
“The facts and just the facts you say. Answer only what is asked. Don’t try too hard to please. Can you repeat that back to me?”
A smile thinly creeps across his face. “Yep,” he says. He can barely hide the smirk.
“By George,” you think, “he’s got it!”
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at either of his e-mail addresses, firstname.lastname@example.org or email@example.com.