This afternoon I saw again in my photographs on my phone a picture of a park where last Christmas my daughter and I walked her dog several times. Every time I have seen that photograph I have gotten a warm glow. It's curious. I don't know why a photograph of that experience produces very similar feelings to, say, a photo of my daughter's college graduation or the like life milestone. But it do.
And then, later on, I was looking through some papers that have accumulated on my kitchen counter (I'm messy. Yesterday in the same pile I found a postcard from six years ago :\) and saw a note that I had written myself on the three year-old murder case that I had worked on exclusively for three months. I write myself motivational notes. "If you stop, you'll be done," (so, don't stop, even to eat) is one typical one. "Start!" is another. I text myself. I put notes on the bathroom mirror, tape them to the front door, put them as screensavers on my 'puter. I have this on my desk.
"Whole Case In Head At Once!" was the note that I found today. That's my goal: to have a bird's eye view of the entire case in my head at one time. And to be able, on command, to zoom in on the details.
And seeing that note today aroused in me feelings quite different from those of seeing the photograph of the park. I felt sorrow and self pity. I worked too hard on that case. I remembered today closing down the library. I remembered doing and re-doing and re-doing and re-doing the lead detective's cross examination. Two weeks. Another cross, three weeks. Twenty three "whittled down" typewritten pages of cross on one; forty-one on the other. I remembered another lawyer's self-advice: "Everything you want to say on one sheet of paper" which I abbreviated for my own purposes to "K.I.S.S.," Keep it Simple Stupid. Well, I couldn't get everything I wanted to say, e.g. in a cross examination of a witness, on one sheet of paper. I concluded, in fact, that doing that is keeping it stupid, simpleton. It's impossible. So, I did it and re-did it. Short, long, longer, a little shorter; I did make a shortish seven page outline that would have been helpful but the mechanics of cross make having it all on one sheet of paper both a stupid and an impossible idea.
Your voir dire examination, your opening, your closing. And that I could do! I did do that. Because you don't want to be reading to the goddamned jury. But I tried to do it with cross-examinations. I don't know if Andy's motivational note to self encompassed cross-examinations. I can't remember. I tried. I made an outline of one that was going to be useful; outline was about seven pages though, not one.
Ideally you want to get into a fast-paced rhythm on cross-examination. You want the witness to get into the rhythm too: "Yes." "Yes." "Yes." "Are you a lying piece of shit?" "Yes." And you can do that a lot of times, especially with cops. On general matters. Where you can anticipate beyond a reasonable doubt that he is going to answer the way you want and keep it short. You can do the mesmerizing, rhythmic call and response of the evangelical church revival some but once you get into the minutiae cross examination is more a John Cage composition than call and response for there are other matters of cross-examination that are impossible to conduct in that dramatic, rhythmic staccato manner. The witness, whether professional law enforcement or civilian, will have given subtle, nuanced answers to some questions. He or she is not going to answer, yes or no. To "impeach" a witness who has given "inconsistent" but not blatantly contradictory answers previously you have to refer to the depositions that the witness has given previously. And then you can K.I.S.S. rhythm goodbye. You ask a question in trial as closely to the one you posed to him or her in deposition. "Why do you lie?" His answers will vary, e.g. "What are you referring to counsel?" Point it out to him. He gives a weasley response, "I'm allowed to lie, it's a police technique." "Okay, well what was the purpose of the police technique of lying here?" Whatever he says. Now, you have to refer to his deposition testimony. Know how long my depo of the lead detective was in this case? Over four settings, 487 pages. At 25 lines per page and 487 pages no human being, not even David Boies (one of my lawyer heroes), can memorize where exactly on those 12,175 lines of type the witness said something contradictory to his trial testimony. You have to first refer to your notes and then pull out the goddamned transcript and read the lying piece of shit the answer he gave on Feb 8, 2017 on page 119 line 12.
Sometimes, the professional law enforcement witness short circuits your brain with a Big Brother answer: "Nine times the defendant said he wanted to leave your 'voluntary statement', why did you not let him leave?" "I didn't force him to stay." "When he said 'Can I leave now officer?' and you answered "'Not right now. Right now you are going to sit here and answer my questions, what was that?'" "He voluntarily came with us. He was there of his own volition." "In the police car when you went to his house and got him out of bed with his girlfriend and took him to the station, you mean that voluntary statement, like he called and made an appointment to come in and confess, okay, fine. I'm not going to argue with you detective. Your answers are your answers. But now, you know the law--I think!--you know that he can say, 'Know what, I changed my mind. I don't want to be here anymore,' right?" "Right." "And so when he said here, "I want to go home," when he asked, 'Can I leave now officer?, when nine time he kept repeating in almost identical words the same wish, you didn't let him leave." "He never got up and left." You can't continue to beat a dead horse. You got him. Leave it to the jury. But then in front of the jury you have to do all that and you have to refer to date, page and line. I think my typed cross examination of him was 41 pages. You can't keep all of that in your head. You can't reduce 487 pages and 12,175 lines to one page.
So, I think I did what I had to do, which is work myself to the brink of physical debilitation. I didn't think I was working that hard when I was doing it. Only now in retrospect. And when I think about how long and how hard I worked those are not good memories, those are memories of sorrow and I feel bad for myself. I hope I don't find anymore of the motivational notes I wrote to myself.
And then, later on, I was looking through some papers that have accumulated on my kitchen counter (I'm messy. Yesterday in the same pile I found a postcard from six years ago :\) and saw a note that I had written myself on the three year-old murder case that I had worked on exclusively for three months. I write myself motivational notes. "If you stop, you'll be done," (so, don't stop, even to eat) is one typical one. "Start!" is another. I text myself. I put notes on the bathroom mirror, tape them to the front door, put them as screensavers on my 'puter. I have this on my desk.
"Whole Case In Head At Once!" was the note that I found today. That's my goal: to have a bird's eye view of the entire case in my head at one time. And to be able, on command, to zoom in on the details.
And seeing that note today aroused in me feelings quite different from those of seeing the photograph of the park. I felt sorrow and self pity. I worked too hard on that case. I remembered today closing down the library. I remembered doing and re-doing and re-doing and re-doing the lead detective's cross examination. Two weeks. Another cross, three weeks. Twenty three "whittled down" typewritten pages of cross on one; forty-one on the other. I remembered another lawyer's self-advice: "Everything you want to say on one sheet of paper" which I abbreviated for my own purposes to "K.I.S.S.," Keep it Simple Stupid. Well, I couldn't get everything I wanted to say, e.g. in a cross examination of a witness, on one sheet of paper. I concluded, in fact, that doing that is keeping it stupid, simpleton. It's impossible. So, I did it and re-did it. Short, long, longer, a little shorter; I did make a shortish seven page outline that would have been helpful but the mechanics of cross make having it all on one sheet of paper both a stupid and an impossible idea.
Your voir dire examination, your opening, your closing. And that I could do! I did do that. Because you don't want to be reading to the goddamned jury. But I tried to do it with cross-examinations. I don't know if Andy's motivational note to self encompassed cross-examinations. I can't remember. I tried. I made an outline of one that was going to be useful; outline was about seven pages though, not one.
Ideally you want to get into a fast-paced rhythm on cross-examination. You want the witness to get into the rhythm too: "Yes." "Yes." "Yes." "Are you a lying piece of shit?" "Yes." And you can do that a lot of times, especially with cops. On general matters. Where you can anticipate beyond a reasonable doubt that he is going to answer the way you want and keep it short. You can do the mesmerizing, rhythmic call and response of the evangelical church revival some but once you get into the minutiae cross examination is more a John Cage composition than call and response for there are other matters of cross-examination that are impossible to conduct in that dramatic, rhythmic staccato manner. The witness, whether professional law enforcement or civilian, will have given subtle, nuanced answers to some questions. He or she is not going to answer, yes or no. To "impeach" a witness who has given "inconsistent" but not blatantly contradictory answers previously you have to refer to the depositions that the witness has given previously. And then you can K.I.S.S. rhythm goodbye. You ask a question in trial as closely to the one you posed to him or her in deposition. "Why do you lie?" His answers will vary, e.g. "What are you referring to counsel?" Point it out to him. He gives a weasley response, "I'm allowed to lie, it's a police technique." "Okay, well what was the purpose of the police technique of lying here?" Whatever he says. Now, you have to refer to his deposition testimony. Know how long my depo of the lead detective was in this case? Over four settings, 487 pages. At 25 lines per page and 487 pages no human being, not even David Boies (one of my lawyer heroes), can memorize where exactly on those 12,175 lines of type the witness said something contradictory to his trial testimony. You have to first refer to your notes and then pull out the goddamned transcript and read the lying piece of shit the answer he gave on Feb 8, 2017 on page 119 line 12.
Sometimes, the professional law enforcement witness short circuits your brain with a Big Brother answer: "Nine times the defendant said he wanted to leave your 'voluntary statement', why did you not let him leave?" "I didn't force him to stay." "When he said 'Can I leave now officer?' and you answered "'Not right now. Right now you are going to sit here and answer my questions, what was that?'" "He voluntarily came with us. He was there of his own volition." "In the police car when you went to his house and got him out of bed with his girlfriend and took him to the station, you mean that voluntary statement, like he called and made an appointment to come in and confess, okay, fine. I'm not going to argue with you detective. Your answers are your answers. But now, you know the law--I think!--you know that he can say, 'Know what, I changed my mind. I don't want to be here anymore,' right?" "Right." "And so when he said here, "I want to go home," when he asked, 'Can I leave now officer?, when nine time he kept repeating in almost identical words the same wish, you didn't let him leave." "He never got up and left." You can't continue to beat a dead horse. You got him. Leave it to the jury. But then in front of the jury you have to do all that and you have to refer to date, page and line. I think my typed cross examination of him was 41 pages. You can't keep all of that in your head. You can't reduce 487 pages and 12,175 lines to one page.
So, I think I did what I had to do, which is work myself to the brink of physical debilitation. I didn't think I was working that hard when I was doing it. Only now in retrospect. And when I think about how long and how hard I worked those are not good memories, those are memories of sorrow and I feel bad for myself. I hope I don't find anymore of the motivational notes I wrote to myself.
