The headline in the Chicago Tribune read, "Lawyer Puts on Clinic for Colleagues." It then went on to describe how one of Chicago's top criminal defense lawyers, over the course of his still on-going six day cross-examination of one of the government's star witnesses in the Rezko political corruption trial, was wowing some of his colleagues with his cross-examination prowess.
The article interviewed several lawyers who had come by during the six days. It detailed various examples of how he had, over the course of the first six days of his cross-examination, scored points - showing that the witness, an admitted drug abuser/user while the key events were unfolding, didn't always have such a great memory.
An important point and one that certainly required full exposition to the jury. The article also noted that on numerous occasions the defense lawyer had caught the witness in inconsistencies and misstatements [click here for full article]. These too are all good things.
First - a few disclosures. I have never tried a criminal case. I have not attended this trial, and I am basing my comments solely upon the newspaper account. Perhaps the article did not report other points that have been brought out during the cross-examination other than the fact that the witness had a bad memory.
The lawyer conducting this examination is truly one of Chicago's finest criminal defense lawyers. So this in no way is intended to second guess what he is doing. In fact, I am sure that he is putting on the best darn defense that is possible under the circumstances.
But what struck me most in this article was not the descriptions of cross-examination prowess displayed by him. I would assume nothing less from an attorney of his caliber. Rather, what struck me was that the cross-examination had lasted six days and was still going. The article noted, in passing, that the length of the cross-examination was likely a strategic move to telegraph how central this witness was to the government's case - even though there were numerous other witnesses and evidence that government intended to present.
But the article also related that at one point - when the witness had given some push back to the defense lawyer - the judge admonished the witness to not engage in conversation with counsel because, "This is your third week of testifying, and at the rate we're going, you will still be on the stand in May." The government lawyers probably cringed a little when the court admonished their witness in front of the jury, but one has to wonder whether some jurors were also thinking - "yeah when is this examination going to end."
No doubt criminal defense lawyers have to function in a different universe [or at least a different planet] and maybe that is the salient point for us civil trial lawyers to derive from this article. Clearly, if this were a civil case, it would have been settled long ago.
This witness also wore a wire - recording very damaging conversations against the defendant. But this criminal defense lawyer has no choice. His client refused to agree to a plea, so he must plow on doing the best he can with what he has.
So under the any port in the storm theory, he has to hammer as long as he can on the witness' drug use and faulty memory because this may be the only high point in the trial for his client's case - hoping that this will be the jury's last impression of the witness and that he can thereafter convince the jury that he ripped apart the core of the government's case.
As an aside, I doubt it. All the government has to do on redirect is replay several of the taped conversations and establish that what was said during these conversations was, quite obviously, not dependent upon the witness' memory. Moreover, there is the problem of the other witnesses and evidence.
So while the article reveled in this lawyer's undoubted cross-examination prowess, the back story was really about what a great criminal lawyer does in desperate straits. Using his courtroom prowess to essentially filibuster the government's case because, quite frankly, the deck he has been dealt with - the overwhelming evidence against his client - requires that he do something - anything.
Which brings us to the civil side. Whenever I have seen this tactic used by lawyers in civil cases - particularly defense lawyers - it has always back fired - jurors tune out, turn off and eventually get angry at the side who is prolonging their stay in court. Or to put it another way, you don't want to be the lawyer responsible for making your jury feel like it is waiting for Godot.
As one of my good friends and one of the finest civil trial lawyers I know once related to me - his longest cross-exam in his thirty year career was two hours - most were 30-60 minutes. This from a lawyer who has tried cases involving nine figure amounts.
In the end, this story brings home how different is the world of criminal and civil trial lawyers. Those of us on the civil side must conduct disciplined and short cross-examinations. This is not to say that criminal lawyers don't follow the same cross-examination questioning techniques - those are the same no matter what. But criminal defense lawyers have to do whatever they can with what they have got. So if that means spending two weeks cross-examining the government's star witness then that is what has to be done.
In some ways it sounds like fun - for those of us who like nothing better than conducting a good cross-exam, being able to do two weeks worth while furthering rather than hindering your client's cause would be like a vacation in a fun park.