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I remember I was so excited to be a lawyer for this mock trial I was part of as part of this national program called Encounters with Canada, where I got to travel to Ottawa for a week and learn all about the Canadian government and a theme of my interest, which happened to be law at the time (and interestingly not medicine…).
I was thrilled to be a defense counsel and I stayed up late and missed the fun social activities so I could create the best case possible for our defendant. But really it wasn’t about the defendant. It was about me. I liked to perform, even at that young age (I think I was 14), and based on tv shows I thought my job as a lawyer was to out-dazzle the prosecution. I created this elaborate opening statement and used the most dramatic, booming voice I had at the time to say it. I really wanted the closing statement, i.e., the finale of the show (and I considered a trial a show), but I couldn’t manipulate my way into getting it, so I had to settle for the opening statement. But boy would I show everyone that I deserved the closing statement by knocking the opening out of the park!
But we got to work with this real defense counsel from Ottawa, who was brilliant and taught us so much about real litigation. But he said that I needed to tone down the drama in my opening. And I had no idea what in the world he was talking about. Sure, he’s probably won a few cases in his day, but my TV shows assured me that jury members have a flare for the dramatic.
In any case, I toned the opening down, and the jury members seemed to enjoy it, and I was smug.
I then went on to question a key witness in the investigation – a police officer. Of course, with the whole trial being a show, and me determined to be the star of the show, I knew that my job was to completely discredit the police officer’s testimony. That’s what they always did on those Chinese law tv shows. In fact, the police officer probably did the crime and was just blaming it on someone else, so the best strategy is probably to trip him up during testimony and get him to confess to his faults.
If I remember correctly, I was very antagonizing during my cross-examination, and I was out to make the police officer look foolish, because that’s what I believed the jury wanted. Drama. Drama. Drama. That was the reason I watched those law shows. For the drama.
We won our case. And, of course, it was completely my doing and only my doing, obviously.
But the thing I remember most about my mock case was actually when I talked to a jury member after the trial was over. He told me that it actually wasn’t an easy acquittal of my client. I asked him why, and he told me that he wasn’t convinced that the police officer would intentionally make a mistake. Why would he intentionally lie to frame the defendant? He had no cause.
I remember this lesson for many reasons. One is, of course, because it was one of the coolest experiences of my life up to that point. But perhaps more importantly, it helped teach me that people are inherently logical creatures, and that we seek to understand motive and intent, especially in court, but even out of it. I made the mistake of trying to make the police officer look like he intentionally deceived, but I had no evidence to back that up. A much better case could have been made if I had gone with the line of reasoning that he simply did not see as well as he used to, being of his particular age. I should have been careful to respect the police officer for his experience and authority, and align myself with him before introducing a little doubt in his vision. I didn’t need to completely tear his testimony apart. All I needed was doubt.
Most importantly, I learned that court is not about drama, even though it can be dramatic. Lawyers aren’t meant to be stars of the show; and rhetoric, flare, and antagonism are not the most important tools in the kit. The most important tool is logic – the ability to weave a cohesive story for the judge and/or jury that makes your case, whichever side you are on. A cohesive story that doesn’t try to just tear out all the evidence and witnesses of the opposition, but paints a picture using the witnesses that someone can believe. If an oppositional witness is particularly sympathetic to the jury and/or judge, antagonizing or discrediting him or her may not be helpful, but it can be helpful to create the context around this witness’s life that would explain a potential for error. Success of a case seems to hinge quite a bit on which side is believed more, so as much justice is supposed to be about blind truth, because we have to get to that truth via assessing the believability of people, there is a lot of wiggle room to paint different ideas of the truth based on the inherent variability of human beings – the way a witness talks can seem untrustworthy, a judge’s personal history with crime can influence his judgment consciously or not, a lawyer’s ambitions to become a judge could influence which cases she takes – and through all of that we are supposed to determine an objective “truth”.
A lawyer’s job for the judge and jury thus reminds me, in a way, of Inception, where the key is to create an environment that is complete and foolproof, because if the target has any doubts in the scene, the mind starts attacking the story from every which way possible, and you lose your case.
All this to say, I’m watching this new show called The Good Wife, and I can’t stop. It successfully paints a picture for the audience – a picture of a law firm and a particular female associate that constantly balances between idealism and realism, between family and career and love and law and ambition and politics and personal conscience, never being necessarily good or evil, but just struggling to do the best they can baesd on the opportunities available, straddling the lines between personal and professional, politics and law, human emotion and frigid logic, unconscious bias and conscious intent, ethics and practice.
The line in between all of that is the uniqueness of human objectivity. The court of law is supposed to be about truth and justice and objectivity, and it is; but in reality, every judge, client, lawyer, and jury member has their own interests and motivations for their actions, and it’s best when everyone owns up to and embraces their bias, as long as they also agree to play within the rules of the game as well.
The game is all about creating a story that makes the most logical sense based on the evidence available, but emotion, personal bias, and individual intent are always a part of the equation, because we’re dealing with the medium of people. The stronger you feel about something, the more likely you’ll remember it and think about it, and that’s because emotion and the brain cannot be separated. It’s been established that emotion changes our memory of something, and emotion is an inherent part of how the brain is able to function: know what is good for the individual (e.g., a yummy orange) and what to stay away from (e.g., an abusive relationship).
There is no true “objective” judgment if people are ever involved, because that’s not how our brain works. The key, I think, is thus to better understand human logic (i.e., the logic of people) and leverage it for better human interaction, both in court and out.
