Some good attorneys here in Atlanta recently won a federal criminal case, so being the nosy person that I am (and formerly their so-called “boss”) I had lunch with these very accomplished attorneys to find out how they happened to get the far too rare “two word verdict” (meaning “not guilty”). I posted a few weeks back about a case I did this summer where the jury also found my client not guilty, so I wanted to compare what these other attorneys experienced with cases I have won. Some common themes arise in cases where a person accused of a crime is acquitted, and I wanted to see if any of those themes were a part of the case my friends recently handled.
The case that my friends defended was one of the increasingly complicated federal white collar criminal matters that I handle on a regular basis. As I’ve discussed other places, white collar matters involve not only complex business transactions, the law and the evidence is often exceedingly dense. In many such cases, emails are often the most damaging evidence. An email (or text) is a less formal manner of communicating, and people often are far less careful in these electronic messages than they otherwise would be if they were writing a formal letter or document. Many times, we all respond to an email or text late at night before going to bed, and perhaps don’t think about how the message will appear to someone else who is not so tired. Not only do electronic communications often provide an unfiltered view into how someone is approaching a transaction, the messages are located all over the place, and number in the hundreds of thousands in a complex business deal. Wading through all this is a chore, but it has to be done. My friends who told me about their recent victory did the hard work, plowing through the tens of thousands of messages, identifying those that could be damaging, and locating the materials to be used when cross-examining government witnesses. Good results always are preceded by lots of hard work.
Another thing that my lawyer friends talked about was the effort to streamline and simplify the defense so that the jury could more easily understand the case and the reasons why there was reasonable doubt as to their client’s guilt or innocence. They kept reminding themselves about the “themes” of the case, and the need to repeat and reiterate these themes with each and every witness if possible. In the end, the goal is to make the defense themes easily understood and recalled, the themes must be based on the evidence, and the themes must be part of the case from beginning to the end.
My lawyer buddies also talked about how their client trusted them and their judgment. This is crucial, for a winning strategy requires that the lawyer sometimes uses a tactic that might seem dangerous to the client. The attorney needs to work hard to assure that the client understands the need for this potentially dangerous move. Other clients want to bring up every conceivable defense argument, and fail to appreciate that the jury only is looking at the big picture. In cases involving a client such as this, the attorney must work very hard to understand whether the client’s inclination is right, and if not, to explain why less is often better than more. From time to time, all lawyers have a client who is the kind of person who micromanages situations. The key for each type of client is for the attorney to diligently explain to the client why a certain defense tactic is the right way to go, so that the client fully understands and trusts what the attorneys are doing. In the end, client trust in the attorney’s judgment is crucial to winning a case.
My conversation with these other lawyers reminded me of lessons I have learned over the years when looking back at a case that resulted in a not guilty verdict. One lesson I have gleaned from 35 years of defending criminal cases is that just about every defense win is an incremental process. The “win” rarely comes from a single line of questioning or defense exhibit or closing argument. Instead, a “win” is the sum of a series of small victories. My friends had the same series of incremental advances, resulting in their client going back to his life without this hanging over his head. I love my work, and it was great to hear from other people who do also, and whose hard work was rewarded.