Category: become a better lawyer

  • The Wrong Place for Common Sense

    These many cognitive biases we all have—confirmation bias, fundamental attribution bias, and so forth—were once our friends. They helped our species reach the top of the food chain by allowing us to make snap judgments that, at the time, were right often enough to justify how often they were wrong. But “at the time” was […]

  • The Debriefing

    After twelve days of trial and deliberation, the jury found my client guilty of tampering with physical evidence. Now, ordinarily I figure that going and talking to a jury after a trial is a good way to get lied to, but here we had what I felt was a full and fair exchange of views. […]

  • Fighting Back Against Common Sense

    "Common sense" has nothing to do with it. The words do not appear in a Texas criminal jury charge. The existence of jury trials is not common sense. The presumption of innocence is not common sense. Requiring proof beyond a reasonable doubt is not common sense. If any of these concepts were common sense, everyone […]

  • Trick Questions

    It doesn't matter who asks them—defense lawyers, prosecutors, cops—or whom they are asked—witnesses, the jurors themselves, defendants—jurors don't like trick questions. Getting caught asking a trick question lessens the questioner's credibility. Here's a trick question that cops sometimes ask people suspected of DWI: "On a scale of zero to ten, how intoxicated would you say […]

  • Actually, There Are Stupid Questions

    I admit it: I was wrong. For a decade I've been encouraging young lawyers and soon-to-be lawyers to start their criminal defense practices right out of law school. With hard work, intelligence, and humility, I thought, they could do well without hurting anyone; the question, I thought, was not whether they would provide perfect representation, […]

  • Team Sport

    "Not a team sport." That's how the federal prosecutor described federal drug defense practice after a hearing in which two colleagues and I had shown a certain unity of purpose on behalf of our clients. Divide and separate is the name of the game for federal prosecutors (that and, I can bribe witnesses but you […]

  • A Class Act

    "When you get to the end zone, act like you've been there before."     — Darrell K. Royal Too few lawyers heed  Royal's admonition. Every dismissal becomes an excuse for a victory dance. They post to their blogs, tweet on twitter, have their buddies laud them on the listserves. Does it help get them business? Maybe […]

  • Know What? Never Mind.

    Why have I been repeating for three years (okay, for a lot longer than that) that lawyers should not waive detention hearings without good reason and that good reason means "because having a detention hearing will prejudice the accused"? Because better representation in a federal criminal case begins with a detention hearing, and for some […]

  • Goosing Their Religion

    I've noticed that trial lawyers, when their beliefs about how to try cases are questioned, sometimes react as though the questions are personal attacks. This came to my attention in discussions among Trial Lawyers College alumni about the management of that institution. Most alumni remained silent, but the truth—that the avowedly anti-institutional College is run […]

  • Lizards Don’t Laugh.

    Personal injury lawyer Paul Luvera has written about Applying Reptile Concepts in Trial—describing how plaintiffs’ lawyers should appeal to jurors’ reptile brains. The reptile brain is the core of the human brain, sitting right at the top of the spine surrounded by the later-developing dog brain and ape brain. The reptile brain is a survival […]