The Jury’s “Takeaway”

By Mark McBride

This past Thursday, I obtained a full acquittal for a client in a sexual battery and false imprisonment case.  I learned a lot from that trial.  Lawyers learn a lot from the trials they win and lose.  I have won and lost trials.  All good lawyers have.  Criminal defense lawyers who say they have never lost a trial are either lying, have never tried a case, plead all their clients guilty, or it’s a combination of all three.

In any event, the main thing I learned in this trial was:  “Mark, what is the jury’s takeaway?”  Let me explain.  When a client comes to Jen and me, we ask ourselves, “How are we going to win this trial?  What will it take to win?  What do we want to present to the jury in the courtroom?  What do we want the jury to know?”  As it happens, though, and in this last victory, I learned a bit of a nuance on that self-thinking I just described.  What I learned was that it matters not so much what is presented to the jury during the trial, but what they take into deliberations with them, in terms of what you have presented to them. That is:  “What is the jury’s takeaway?  What do you want them to take with them, in their memory, when they retire to deliberate?”

In the Bellflower case, the defense was consent, and I still won the case without my client even testifying (generally speaking, it’s pretty hard to win a sex case where the defense is consent, and your client doesn’t even testify).  I shredded the alleged victim on cross-examination.  But that’s not the point; the point is, “How do you win a sex case when the defense was consent when your client doesn’t even testify to say that the alleged victim in fact consented?”  I’ll be honest with you.  My client has had some blemishes in his past.  If he had testified, those facts would have come out to the jury, and I would have then been risking the fact that the jury, when they retired to deliberate, would have focused on him rather than her.

So, as I sat and thought about that case as it played out, I thought, “You know, Mark, I want them to go in there just thinking and focusing on her.”

That was the jury’s takeaway, and they made the right decision, because they didn’t have to process the case mentally, in the jury room, as a he said / she said.  They had to answer only one question:  “Was she telling the truth or not?”
She was not telling the truth, and the jury made the right decision, because their takeaway — what they took with them into the deliberation room – was that one simple question:  was she telling the truth or not?  This case very much affected me in terms of how I visaulize winning trials.  Yes, presenting a great case to the jury during the trial is extremely important, but, at the end of the day, a criminal defense trial lawyer needs to visualize deeply what he or she wants the jury to take into the jury room. What is the jury’s takeaway?

Shameless Self-Promotion and Client Confidentiality

By Jennifer Gardner

I am disgusted by how some lawyers use their celebrity clients to shine the spotlight on their own careers.  Even more appalling is when they breach client confidentiality by indiscreetly mouthing off to the media about a client or former client.

Case in point:  Chicago lawyer Stuart V. Goldberg who rumor has it was or almost was Lindsay Lohan’s attorney for about five minutes this week.   Was he hired, was he fired or did he resign?  It makes no difference, at least in the state of California where as soon as a client consults an attorney for legal advice, the duty of confidentiality attaches to all communications.  This would make Goldberg’s ramblings to People Magazine about how he thinks Lindsay is a “lost child….who doesn’t understand adult consequences” or fully grasp “what is going to befall her…..” not simply inappropriate editorializing and prognostication, but a severe breach of that duty.   I think the duty of confidentiality even extends to whether a client fully comprehends the heap of trouble she finds herself in, especially in Lindsay’s case where she has been accused of violating the terms of her probation.  Consciousness of guilt and remorsefulness are very much at issue in this type of a situation.  Opining about whether a client (or even an “almost” client) is sufficiently aware of what they are doing or not, and whether they feel bad about it or not, is clearly wrong.    Mr. Goldberg had the nerve to tell the media that he required 100% loyalty from Lindsay, but he did not return the favor when he thoughtlessly addressed the media in this way. Often, being a good lawyer includes knowing when to keep your big mouth shut.

Jury selection in a high stakes, very graphic criminal case

By Mark McBride

I recently had the occasion to pick a jury in a sexual assault / kidnapping case.  We started with 66 people, the goal was to arrive at 12 jurors and 3 alternates.

I must say, after jury selection, I came away from it feeling good about one thing, and feeling not so hot about two things.  What I felt good about was that, for the most part, most Los Angelenos are really good people who just want to do the right thing.  The DDA and I questioned them extensively.  Because this was a multiple life term case, the trial judge gave us virtually all the time we needed to really figure out their motivations, what they really thought, and so forth.  I did not detect dishonesty in them at all, in terms of making up baloney excuses to try to get off the jury.  Yes, there were a couple people who were transparently silly in their attempt to say that their roof would fall in, or that their children would be taken by aliens if they were empaneled, but, fortunately, we had a very smart and fast trial judge who saw right throught that, and she returned them to their seats.  As well, the DDA and I “kicked” all of them anyway.

I felt bad, though, about a couple things, and both of them go right to the fairness of the proceedings.  The first issue is that, during the discussion of some of the bedrock constitutional rights (the presumption of innocence, proof beyond a reasonable doubt, the burden of proof, and the right of a defendant not to testify at all), several, very normal-seeming people had significant issues with the last one — a defendant’s right not to be penalized by the jury if he or she says nothing at all during trial.  Yes, of course you can do your best to “kick” those jurors, but, of course, the rest of the potential jurors hear these unfortunate comments.  To rebut this, I look for leaders rather than followers.  I look for people who can put their foot down, and say, “No, this case is bogus.  I’m not convicting him or her.  Period.  I just can’t.”  As they say in criminal defense law in terms of hanging a jury, “it just takes one.”

The last thing I noticed which was very difficult in a case of this type were the many members of the panel who were reluctant about sitting on the jury because it brought up in their minds very difficult experiences from their past.  We had men and women, in their 40′s and 50′s, who were telling us in private conferences (out of earshot of the entire jury, but in the presence of the judge, DDA, court reporter, and myself) that simply hearing the charges brought to their minds things that they hadn’t even told their closest loved ones in their entire lives.

But that’s our job as trial lawyers.  That’s why we took the oath — to defend people, no matter the human cost, no matter the peril, no matter the human pain which could be caused by, say, lethal cross-examination, all the while working ethically and legally.

My takeaway from this experience confirmed the age-old principle that jury selection is one of the most important parts of a trial.  Many lawyers say (and I agree with them, on many levels) that jury selection will determine if the case can be won at all.

My next entry will be about whether juries should hear the potential sentence a defendant could receive if they vote for guilt.  Stay tuned . . .

“I Want a Hearing . . .”

By Mark McBride

When I became a criminal lawyer at the age of 27, and after having my bar license for all of one month, I sought out great mentors and people who could give me not law-school-type advice, but real courtroom advice.

At the same time, I had just become part of the defense team in the notorious, albeit nationally publicized, Tom Green bigamy prosecution in Utah.  In speaking with lead counsel on that case (and we spoke a lot and spent a significant amount of time together), I asked him, “John, what is the best advice you can give a guy who wants to be a great criminal lawyer?”

I’ll never forget his response.  He said to me, “Kid, listen up. This is not complicated.  All the fancy education lawyers have somehow makes them forget one thing.  And I want you to listen to me real close.  Whenever there’s something in a courtroom which does not feel right, and whenever you think a judge or prosecutor or witness is not telling the truth or trying to slide one over on you, say these words, and never get tired of saying them, ‘Your honor, I want a hearing.’”

To this day, and after having handled hundreds of criminal cases, many of which are very high stakes and/or very gory, you can still hear me say, “Your honor, with all due respect to the DA and the witness, my client and I would like a separate hearing on that separate issue.”

That advice — where you request that the Court take evidence and take a much more careful approach before it decides a critical issue — is some of the best I’ve ever received.  The heart of this strategy is that the burden is on the system and the prosecutor to establish critical facts, and it also gives the courts, prosecutors, and witnesses the chance to show you what they have.  More to the point, it allows you to make a record through lethal cross-examination, which is the heart and soul of a criminal defense attorney’s arsenal.

I have received some other great advice over the years, but, in the last few days, that wisdom from nearly 10 years ago has really been resonating in my mind.  And it is wisdom that will never go out of style, and it is wisdom that I seek to employ in virtually every criminal case I handle, no matter how big or small the issue.

Partners in Crime with Mark McBride

As many of you already know, my good friend and colleague, attorney Mark McBride and I joined forces in the second half of 2009 with the goal of providing a team approach to providing private criminal representation, and since then the firm’s criminal law practice has grown substantially. Mark is an outstanding lawyer who has devoted his entire career to representing individuals accused of committing crimes. Recently, he was named as one of LA’s “celebrity go-to” lawyers (http://www.thewrap.com/deal-central/article/la-law-whos-who-celebrity-attorneys-18076).

I asked Mark to give me a list of what he considers to be his biggest accomplishments so that I could post them here, and this is what he said:
“1.  Dedicated and husband and father;

  1. Tried misdemeanor cases while still in law school;
  2. Started criminal practice while only 25 years old and with $600.00 in the bank;
  3. I have never prosecuted anyone, and never will;
  4. I have conducted research and writing for, and had as mentors, some of the best and most high profile criminal defense attorneys not only in California but across the country.
  5. I am admitted to practice in all the State Courts in both Utah and California, and am admitted to practice in several federal jurisdictions, which include:  The Central District of California, the Eastern District of California, the Ninth Circuit Court of Appeals, the District of Utah, the Northern District of Illinois, and the Fourth Circuit Court of Appeals in Virginia. In addition to Utah’s and California’s state courts, I have also been admitted, as a friend of the Court, in several other state criminal courts across the country, which include New York, Florida, and South Dakota;
  6. My first high profile case occurred when I was only 27 years old, during which I was part of the defense team on the nationally known Tom Green bigamy prosecution in Utah. Since then, I have had many high profile and celebrity clients;8.  Since becoming a criminal defense attorney, I have handled at least 250 criminal cases, which have run the gamut of criminal offenses (traffic violations, DUI’s, murder, child sexual abuse, narcotics trafficking at the federal level, white collar crime, parallel SEC investigations amidst allegations of federal crime, bank robbery, and so on and on);
  7. As a criminal defense attorney, and before criminal charges have ever been filed, I have successfully persuaded law enforcement officials and prosecutors not to charge crimes at all on dozens of occasions;
  8. My most recent victory?  In mid-June 2010, I obtained a dismissal of an attempted murder charge, in Pasadena, after a gut-wrenching and lengthy preliminary hearing, during which I proved that the complaining witness had no credibility.  This is a virtually unheard of accomplishment, as the burden on prosecutors is considered to be quite low during a preliminary hearing.  Various criminal lawyers in Southern California have extended their amazement and congratulations to me in light of this victory, since they know how low the burden is, for the State, during a preliminary hearing.”

Mark is a tireless, passionate advocate. We compliment each other really well and enjoy aggressively defending our clients. It’s exciting and gratifying to work together to achieve the amazing results we are achieving on all of our cases. I believe this is because we make a powerful team and a potent adversary, which is what you need when you are up against the government.Mark and I do our best to level the playing field for our clients so that they get more than just a fair shake. I am really proud to be associated with Mark, and of all the good work we are doing.  For more information about our criminal defense law practice, check out www.LACriminalLawHelp.com ,

A New Civility?

I appear in court regularly on my cases, and it is fascinating and frightening to see how the economic crisis is affecting the court system.

Not only are the courts furloughed due to lack of funds to run them, but also, I heard a rumor that LA County is going to lose 111 judges to layoffs, and that only criminal cases are going to continue to get priority. This is going to collide with the law that requires civil cases to be tried within a year of the filing date of the complaint.

More importantly, the remaining civil judges are going to have to absorb the caseloads of the laid-off judges. I wonder how they are going to do it. Judges are already extremely overworked. You can feel them struggling to handle their caseloads and to unload cases. They pressure the lawyers to resolve disputes outside of the courtrooms, and pressure the parties to pay to have private judges decide them.

I appeared at a post-mediation status conference the other day. This is a court hearing where the judge requires all of the lawyers to appear and report the outcome of a mediation. In my case, the parties did not settle their dispute at the mediation, though they spent nine hours and thousands of dollars — between the mediator’s time and the lawyers’ time — trying.

The first thing the judge stated on the record when she saw five lawyers approach the counsel table as she called the case was, “What are you all doing here? How can these parties afford so many lawyers on this type of a case?” One of the lawyers, who appeared by telephone, then made several inflammatory accusations against my clients. The judge ignored these comments and asked her very simple, direct questions about the outcome of the mediation. The lawyer answered with non-responsive, inflammatory accusations.

The judge angrily castigated this lawyer for not “being reasonable or helpful,” and lectured that as an attorney, the lawyer’s role was to help resolve problems rather than make matters worse with such tactics. I have never seen a judge react like this. A month previously, a judge on another case yelled at the lawyers who were in chambers preparing for trial — exclaiming that by doing so, we were simply “rearranging the deck chairs on the Titanic.” He told us that instead, we needed to put our energies into settling the case. This judge made clear his belief that aggressive tactics have no place in a log-jammed courtroom.

There is even less tolerance now for tactics that used to be considered good old-fashioned advocacy. Tactics that used to be considered the norm are by necessity falling by the wayside. The court system was overly congested before, and now, it is going to get much worse. It can not help but profoundly affect the way we advocate for our clients. As a pragmatist, I think that in many situations, this is a good thing. Too often, too much money is wasted fighting over frivolous issues. I agree with Abraham Lincoln, who said: “As a peacemaker the lawyer has a superior opportunity of being a good [wo]man. There will still be business enough.”

We are moving towards a new civility.

Bloggers Soon to Outnumber Lawyers.

In America today, there are almost as many people making their living as bloggers as there are lawyers. Already more Americans are making their primary income from posting their opinions than Americans working as computer programmers or firefighters….
The best studies we can find say we are a nation of over 20 million bloggers, with 1.7 million profiting from the work, and 452,000 of those using blogging as their primary source of income. That’s almost 2 million Americans getting paid by the word, the post, or the click — whether on their site or someone else’s.

http://online.wsj.com/article/SB124026415808636575.html

March of the Dunces?

In yesterday’s Wall Street Journal‘s Law Blog, Elizabeth Wurtzel examines how over-worked and over-paid corporate lawyers enabled the Wall Street bankers, and thereby  co-created the current financial crises.  Her observations are below, and I couldn’t agree more.

Millions of hours of manpower put in by investment bankers on Wall Street and the lawyers who enabled them — the kind that brought home those bright shiny bonuses that are now causing a populist uprising in the hinterlands — have been wasted away by what is kindly called the credit crisis. . . .

[T]he traditional life of a law lackey . . . has meant virtual residence at the firm. Meals were delivered by Seamless Web and the roll-top desk was used for catnaps, because whatever it is that had to happen had to happen immediately, or yesterday. The emergency-room atmosphere that permeated the processing of derivatives deals, corporate takeovers, and whatever else has been going on at Goldman, Bear, Citi and Merrill for the past decade, could rival that of an operating room during open-heart surgery. Only, of course, it was a matter of money — not life or death.

Perhaps money and mortality are all the same to some. But as a way of making the former, this hysterical ER-approach has proved futile. All those lost nights of sleep are now lost 401(k)s. So what was the point? Corporate lawyers could have been sunning in St. Bart’s and ended up with the exact same result, plus a tan.

. . . I don’t believe any of the major players are re-evaluating their ethos — only their decision to invest in subprime mortgages. And this is foolish, since the problem is not just that the financial instruments were bad bets, but that the corporate structure and the feverish rush of it all are fundamentally flawed.

I would love to call the system despicable or detestable or something evil-sounding, but that would be giving it too much credit. It’s really just the march of dunces.

I would add that in order to prevent this type of phenomenon from recurring, many lawyers need to step outside their air-conditioned skyscrapers and experience a bit of more of “real life” before they mindlessly mastermind the next financial-or-whatever apocalypse.

Neighbor v. Neighbor: Boundaries, Fences, Dogs and Noise

Over the years, in Southern California I have represented clients in countless lawsuits involving neighbor disputes.  I like to refer to these cases as “little wars.”  They are always expensive, both financially and emotionally, especially if the parties can not resolve their dispute early on.   Imagine the horror of being embroiled in a lawsuit against someone you must see every day because you live next door to them.  It is very stressful and upsetting to be reminded of the conflict every day.

Neighbor disputes often center around boundary line location issues (i.e., a disagreement as to where the actual line is that separates the two properties), easements (often go hand-in-hand with boundary line disputes, especially where one side claims the need or right to use property which may not actually legally belong to them or be included in the “legal description” of their own property), and nuisance (where one person claims that the other person is doing something that interferes with their ability to use and enjoy their property).

Sadly, these cases often take on a “criminal law” dimension, such as where one neighbor assaults the other by driving his car at them on a narrow street, or allows their vicious dog to attack the neighbor’s dog, or even the neighbor.

Dogs Can Be A Nuisance. Dog bites can start it all, especially where the owner of the biting dog does not pay the other side’s medical expenses.  Neighbors also often fight (especially in condominiums) over dog poop, leashes and barking.

Elder Abuse and Neighbor Disputes. Our population is aging, so it is no surprise that I have handled cases where elder abuse allegations were made because one of the parties was over 70 years old.  Elder abuse allegations add an interesting layer to a neighbor dispute which is already fraught with high emotions.

Boundary Lines and Easements. Many boundary line legal issues arise in the hills of Southern California where you have thousands of homes built on non-conforming, curve-linear lots.  Often people don’t even know the true location of their boundary, especially when their properties include hillsides and ravines.  But a good surveyor can usually sort this out.  If there is a dispute, you will need a good and reliable surveyor.

Diplomacy or Litigation? This is the six-figure question (what it often costs to take a neighbor or boundary line dispute through trial).  My advice to anyone who is involved in a neighbor dispute is this:  diplomacy, diplomacy, diplomacy.  Exercise it whenever possible.  Try to control your emotions (I know it is difficult).  Hire a lawyer to write a letter and to help you deescalate the conflict.  Consider that litigation is time and energy consuming, expensive and nowadays could take years to resolve.  Sometimes you need to turn the other cheek.  If that idea is unacceptable, then find an experienced litigation attorney who can help you put up a good fight.

DOGS WILL BE DOGS, or….. WHAT EVERY DOG OWNER MUST KNOW ABOUT OWNING A DOG IN LOS ANGELES WHO BITES ANOTHER DOG OR HUMAN

“Outside of a dog, a book is man’s best friend. Inside of a dog it’s too dark to read.”

― Groucho Marx

Los Angeles County is congested with animals and humans.  It is a huge, sprawling metropolis with more people arriving every day.   So many people have dogs.   It seems I am always running into other people walking their dogs on the street whenever I am walking mine.  My dog does not like every dog she meets, and not every dog likes her.   I am very careful to always have her on a short leash when we encounter other dogs, but often I find that other owners are not as careful as I am.   I have been bitten and my dogs have been bitten.   I still adore dogs, but between my own experience and because I have represented clients in several dog bite cases, I am acutely aware of the risks of dog ownership – how even the cutest dog can get into trouble just by being a dog.

With the increased congestion of humans and animals in our city, it has never been more important for dog owners to be aware of the liability that comes with owning a dog who bites another dog or human.  One common misconception people have is that their dog can only be responsible for biting another dog or human if it has bitten once before.  This is not the law in California.  Your dog does not have to have bitten someone once before in California before you can be financially responsible for a bite.  California is considered a “strict liability” state when it comes to bites.

Another popular misconception:  “I am not responsible if I am just baby-sitting someone else’s dogs.”  False.   In California, even if you are “babysitting” someone else’s dog, you can still be responsible if you negligently handle the dog, for example, by failing to have that dog on a leash when it attacks, or by failing to properly supervise that dog while babysitting a human baby if that baby is attacked by the dog.

Landlords (and homeowner’s associations, too) can be responsible for dogs that attack others on their premises, especially when they know there are dogs there who have dangerous propsensities.

If you are bitten by a dog, the damages you can recover include:

– Past and future Medical bills

– Past and future pain and suffering

– Lost income

– Lifetime care costs, depending upon the severity of the injuries.

If your dog is bitten, you can also recover damages for the medical expenses.  In some extreme cases, a victim might also be entitled to punitive damages over and above your medical specials and compensatory damages.

There are over 78.2 million dogs in the United States, and approximately 4.5 million people in the US get bitten by dogs every year.  Here are some very frightening dog attack statistics from 2012:

–       38 U.S. fatal dog attacks occurred in 2012, with pit bulls contributed to 61% (23) of these deaths.  Rottweilers are the second most lethal dog breed and accounted for 68% of all fatal attacks in 2012.  (Pit bulls make up less than 5% of the total U.S. dog population.)

–       From 2005 to 2012, pit bulls killed 151 Americans, about one citizen every 19 days, versus rottweilers, which killed 32, about one citizen every 91 days.

–       Annual data from 2012 shows that 50% of the victims were adults, 21-years and older, and the other half were children, ages 8-years and younger. Of the total children killed by dogs in 2012, 79% were ages 2-years and younger.

–       In 2012, roughly one-third, 32% of all dog bite fatality victims were either visiting or living temporarily with the dog’s owner when the fatal attack occurred. Children 8-years and younger accounted for 75% of these deaths.

–       Dog ownership information for 2012 shows that family dogs comprised 58% of all fatal occurrences; 82% of all incidents occurred on the dog owner’s property and 18% resulted in criminal charges.

–       California and North Carolina led fatalities in 2012, each with 4 deaths. 75% of the California deaths occurred in San Diego County. Pit bull-type dogs accounted for 88% (7) of the 8 deaths. New Mexico, Ohio and Texas followed, each with 3 deaths.

In addition to being a dog lover, Jennifer Gardner is a Los Angeles civil and criminal defense attorney and dog bite lawyer.  If you or someone you know has been bitten or have a dog who has bit someone, contact her for a complimentary consultation today.