Motorcycle Survival and the Art of Trial Work
July 13, 2016 August 26, 2016 Richard H. Maurer	Philadelphia past and present
People in the office eventually realize that I ride to work. There's no other explanation for the Hi-Viz jacket with body armor, the black buckled boots that could have been lifted from an infantry museum, the message from my mechanic that the new chain and rear sprocket went on just fine. The jacket yields to a suit, and the boots to more reasonable shoes, but the mind set of motorcycle survival remains with me throughout the working day. For two-wheeled survivors, riding isn't an escape from speed limits and other restrictions of responsible society. It has nothing in common with the masked man who pops a wheelie the entire length of the Girard Street Bridge in Philadelphia. Instead, it's total focus: predicting which cars will abruptly turn in front of me, scanning the road constantly for debris and obstacles, and always checking mirrors before I stop, for the texting driver too close who doesn't notice the red light or me. Three rules of cycle survival have also served me well in the courtroom: (1) look well ahead; (2) look where you want to go (not where you don't); and (3) develop total situational awareness. Aside from the rules, there is also the realization that something unexpected happens on every ride, from the left lane vanishing without warning in a construction zone, to the cloudburst on the Pennsylvania Turnpike, in the mountains near Pittsburgh, surrounded by semi-trailers. Aside from preparation, the ability to improvise under deteriorating conditions is another necessary aspect of trial work.
Look Well Ahead
Since we are not encased in metal and lack seat belts with airbags, it's essential for the rider to see problems far down the road, before the drivers do. It's too late to notice a broken muffler in the roadway when you are about to ride over it, too late to realize you are in a blind spot when the car in the neighboring lane drifts towards you like a browsing whale, too late when the deer is literally in your headlights. The same holds true for trial work. For instance, it's generally too late to compose your closing argument the night before the jury will hear it. I start working on it days before, during the lawyer down-time that accompanies the Court's opening instructions to the jury. I write down what was so important that everyone heard it at the beginning, even those not finally selected as jurors. There's the definition of reasonable doubt – a standard that is exceedingly high by design because a false positive (the innocent convicted) is the ultimate system breakdown in criminal justice. It's not a stretch to tell the jury that beyond a reasonable doubt is the key to justice, the word that's carved above the southern pedestrian exit from City Hall, looking down the Avenue of the Arts.
There's also the lack of any obligation on the part of the defendant to testify, although in an age of instant social media commentary about anything, it's a rare case in 2016 where my client does not tell his side of the story, as messy as the telling may eventually become. When that happens, the instruction that defendant had every right to remain silent earns him a gold star: He took the stand despite no obligation to do so (and it's no surprise that an A.D.A. with college and law degrees was able to occasionally outsmart him in the process). Finally, there's the instruction that the comparative number of witnesses called by one side or the other does not matter. Fortunately, the criminal justice system does not teach jurors the approach that General Nathan B. Forrest followed during the Civil War, of "getting there firstest with the mostest." At trial, the first to go with the most witnesses is inevitably the Commonwealth. At my most recent jury trial this past June, the Commonwealth called the alleged victim, followed by a responding officer, the detective who took my client's statement in broken English, and the sergeant who retrieved the surveillance video that ultimately acquitted my client of Aggravated Assault. When it was our turn, the sole witness was the defendant, because his English-fluent daughter could not take time from her job as a medical assistant on the Main Line, and his former spouse had left him over the financial pressures that followed criminal charges and temporary incarceration. The Court's opening instructions to potential jurors provide a good framework for closing argument, and the length of these instructions generally gives defense counsel a good hour or so to work on the closing before testimony even begins.
The importance of looking well ahead surfaces during many other aspects of trial. It's too late to fret over a bad answer when you still have good issues to cover with the same witness. Getting the negatives out of the way on direct, before the Commonwealth takes them out on cross-examination, is another way of looking well ahead. By the time the Commonwealth asks your client about his theft conviction from five years ago, they will already have heard it from the defendant, with an explanation that when he was guilty he entered a plea, but not in this case. Overall, it's too late for regrets when there's still time to salvage the situation down the road. So look well ahead.
Look where you want to go (not where you don't)
A strange but absolute rule of cycling is that the bike will go where you look, at any speed and under any conditions. It's a mysterious bond between man and machine, but I am told that horses do the same thing. If I look at the slippery rail tracks that occupy the middle of 12th Street southbound towards Center City on a rainy evening leaving the office, I will inevitably ride on them, with potentially disastrous (or at least embarrassing) consequences. If I had looked this morning at the metal plate that the Streets Department had loosely nailed down to cover an expanding sinkhole under Kelly Drive inbound, there's an excellent chance I would have hit one of the fastening spikes head on. This tendency is known as object fixation, and the cure is to look well ahead. If you look well ahead to the exit of a curve, moderate your speed going in and gently accelerate coming out, you will arrive safely at that exit point. But if you look at the guardrail at the edge of the same road, there's an equally strong chance you will run into it and miss dinner with family.
If we look where we want to go during cross-examination, we will focus on the three issues that matter, and end on a high note. If we look where we don't want to go, we will ask one question too many, argue with the witness in a futile attempt to undue the damage, and then give up on the lowest note of all – an objection sustained on cross. My discipline for cross-examination preparation is to first identify the handful of issues that will actually matter with a given witness, and then write each question out, limited to a single line of word-processed text. This forces me to be brief, and to truly ask one question instead of the compound, endless type that elicits uncomprehending silence from the witness, and confusion from the jury. I began this discipline as an associate at White and Williams, as a way to prepare for depositions of plaintiffs and their experts, people who would readily steamroll an inexperienced and nervous young lawyer. The partners I worked for derided the practice, since they did not see it as billable activity. I cut my own hours doing it, but persisted. What I should have explained to the partners was that I never actually read the questions I write out in advance. Instead, this level of preparation frees me to listen more intently to the witness, follow their lead down unexpected areas of inquiry, and finish one topic area before moving on to the next. This type of preparation also frees me from the need to take detailed notes, which I have frankly never understood in trials or depositions. It's impossible to think of the next question while writing down the answer to the question that preceded it, and since nobody has a written record of what the witness just said, attempting to generate a verbatim transcription is a waste of time, an activity that would require the jurors to accept your recollection as true, as evidence, when they have just been told that nothing the lawyers say is evidence. Looking well ahead shows in preparation, and in the crispness of the questions we ask. In court as on the road, look where you want to go, and you will tend to end up there.
Develop total situational awareness
Total situational awareness (TSA) is the result of good riding habits, practiced for years, that keep me out of trouble before it happens. Looking back to a different context, TSA also let me realize (as a music student at Juilliard in the late 1980s) when the audience was losing interest, and to accordingly bring the Bach suite I was performing to a more rapid conclusion than usual. TSA supports the now involuntary reflex of checking my mirrors while coming to a stop, for when the car in back of me is not stopping and I need to accelerate from danger. TSA also encourages me to move away from the pit bull straining at the leash, to notice a wooden produce crate about to detach from the truck in front of me, to anticipate the myriad brewing hazards that a car driver has no reason to be concerned about. There is undeniably a sixth sense of trial, where TSA guides you in a course of action that is not taught anywhere but in the school of life. In the aggravated assault case I mentioned previously, I began my closing argument with two words: "I'm disappointed." Having caught the jury's attention by starting not with a call to arms, not with the injustice of it all, but with an apology, I explained that I was disappointed with the complaining witness, for dismissing my client's concerns about the property damage he had caused as "bullshit," disappointed with my client's son (for being the one who actually punched the complainant in retaliation) and most of all disappointed with my client, for not simply walking away – going back inside the apartment building where he worked as a superintendent and allowing the complainant to continue his rant over the perceived deficiencies of the building. I then reminded the jury that this trial was not about manners or morality, but instead about deciding if the evidence supported, beyond a reasonable doubt, all elements of the First Degree Felony Known as Aggravated Assault. Ultimately, the jury agreed that it did not.
The theme of disappointment was not something I had worked into my advance outline prior to closing argument. Similar to my preparation for cross-examination, I identify at most five areas for discussion with the jury (mainly because I cannot remember more than that without notes), and then write a series of single sentence observations under each topic. I never use the outline before the jury, but find that I can reliably visualize it, especially if I succeeded in making it sufficiently compact to fit on one sheet of legal-sized paper going sideways in landscape mode. In preparing the outline for this closing, the opener eluded me until minutes before I stood up, and the only way I can explain it now is as an instance of TSA. The jury needed to hear that what they had just seen on video represented failures by all concerned. They needed confirmation that my client should not have deployed a box cutter after enduring five minutes of insults and obscene gestures from the complaining witness, but that still did not result in Aggravated Assault, where as my client explained on the stand, no contact was either intended or accomplished.
The more cases you try, the more that TSA reminds you to apologize and rephrase for the witness who actually did understand your question but pretends not to, and to look interested and perhaps even take notes as the judge gives a closing charge to the jury that you have heard many times before. TSA ensures that you do not bore the jury, infuriate the judge, or alienate your adversary to the extent they will do anything to see you fall.
Closing thoughts – sometimes you must improvise
Rules help, but it is also important to function when the foundation on which the rules operate has been pulled out from under you. On a recent Friday in August without a hint of rain, I could not resist riding from Philadelphia to Newark, NJ for a Rule 16 scheduling conference. The practical benefits included parking for free, sufficiently distant from the Courthouse so I could stow my riding gear and assume a lawyerly appearance in private, although a man watching from a Brazilian café across the street compared my quick-change act favorably to Clark Kent's. The conference went well, with the reasonably prompt deadlines we want in a plaintiff's case, but by the time I emerged from the Courthouse around Noon, it was easily 95 degrees. I went through the familiar drill of unlocking the bike, pulling on armored over-pants, jacket, then full-face helmet followed by gloves, get on, power on, pull in the clutch and press the start button, only to get nothing. Not even a click. I could have despaired, panicked and made an embarrassing call home. Instead, I realized that the contact points of the starter motor might be wearing out, and (with a short prayer) rolled the bike forward a few feet. This time I got a small spark, and after a few more feet of rolling, success. I was soon taking the long way home, riding west across New Jersey on Route 78 to Easton, so I could visit a colleague in Allentown before taking the Turnpike extension south, back home to East Falls (where of course, the bike started without incident the following morning).
I experienced the courtroom equivalent of sudden starter failure in an armed robbery trial last Fall, when the co-defendant who had previously been on board to exonerate my client as a friend who just stood there — while co-D did the brandishing, the threatening and the robbing — went suddenly and spectacularly south. He initially refused to testify at all, saying there was no need for it, since the Affidavit he had previously supplied me said it all. The presiding judge leaned towards me upon hearing this, apparently concerned that I had held something back from reciprocal discovery. I had not, and our judge assumed a more relaxed posture as the A.D.A. handing the case held up her copy of the Affidavit. Seeing that I had played fair, our judge reciprocated by dismissing the jury and then admonishing the witness that he had no Fifth Amendment right to refuse to testify since he had pleaded guilty and been sentenced for the same conduct at issue, and that he would be held in contempt and sentenced to five months and 29 days of additional consecutive custody for each question he refused to answer. This solved the reluctance to testify problem, but then the substance went south as well. The co-defendant who previously admitted to having the silver revolver now denied having any gun at all, invoking a silver-colored cell phone, and being pressured to plead guilty by a mean lawyer to something he did not do. Fortunately he was willing to authenticate the transcripts of prison phone calls where he repeatedly stated that my client had done nothing wrong, and this was enough for the jury to acquit my client of 2 of 3 charges, and for him to avoid a mandatory minimum for firearms used in connection with a crime of violence.
Looking back, the rules would not have prevented this temporary blow-up, but they did provide some guidance on how to get out of it. Looking well ahead did not reveal the impending witness meltdown, but looking where I wanted to go reminded me to use the telephone transcripts to bring this recalcitrant witness back to reality. Thanks to playing fair in discovery, the judge stepped in, and despite the witness going south on substance, he admitted to making the prior statements that removed my client from being an accessory to armed robbery. Like riding across town or cross-country, a distinguishing characteristic of trial work is unpredictability. Rules help, but sometimes, through no fault of our own, it comes down to improvising. If we didn't like the risk, we wouldn't be doing this.
JD: Georgetown 1993
Ride: Suzuki V-Strom 650
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