It almost sounds like the premise of a film. What would be the title of the movie and the tag line? “The Bounty Hunter starring deputy District Attorney Jennifer Aniston: another defendant in jail, another Prada purse for Jen?” Sounds like breezy summer fun with popcorn–if only it were not true, according to an article in the Denver Post by Jessica Fender, “DA Chambers offers bonuses for prosecutors who hit conviction targets.”

While we were applauding democratic revolution in the Middle East, the pronouncement from a Denver suburb struck much of the legal community as despotic. This edict was issued by the elected District Attorney of Arapahoe County, Carol Chambers.

Here are the nuts and bolts of the policy: if prosecutors participate in at least five trials during the year and garner a 70 percent felony conviction rate, they earn an average $1,100 bounty–Chambers euphemistically refers to the incentive as a “bonus.” Sorry, plea bargains do not count.

The Denver Post article smartly hit the list of problems with the policy: prosecutors close to hitting their conviction rate might present an irrational plea bargain to force a case to trial; prosecutors might cherry-pick the easier cases for trial to increase the odds of a conviction (Vegas, baby, Vegas); and of course there are serious ethical concerns given the Ethics Codes and Guidelines for Prosecutors that essentially state “a prosecutor is to seek justice, not convictions.” Moreover, both the applicable national ethical canons and the Colorado rule hold that prosecutors are ministers of justice; they represent the community above any conviction rate.

As a prosecutor for six years and a criminal lawyer for almost thirty, both on the East Coast and in Colorado, I can tell you this policy is virtually unheard of nationally. Based on personal experience, there is enormous pressure to win cases. If you do not win, you will not advance in the office, and even worse, you will have a reputation as a wimp. Adding a monetary incentive might very well be the tipping point that leads to potential misconduct. Prosecutors have great power in our free society; overreaching and grandstanding are prevalent without bounty awards. Think about Mike Nifong, the prosecutor who indicted several Duke lacrosse players without just cause, giving press conferences calling the athletes rapists while hiding the exculpatory evidence that lead to the dismissal of all the charges against the innocent defendants. Imagine what Nifong would have done if the convictions would have lead to a juicy bonus.

Even if the Duke example is extreme, there does not seem to be much community support for Chambers’ policy; local prosecutors are scratching their heads. Denver D.A. Mitch Morrissey said he would be concerned about “unintended consequences.” Boulder D.A. Stan Garnett said he wanted his prosecutors “focused on doing the right thing on their cases… I don’t want them distracted by some kind of bonus or award.”

These subtle and restrained criticisms are buttressed by comments from the Colorado Criminal Defense Bar. Shawna Geiger, the president of the CCDB, sent out an organizational-wide email calling for a meeting to brainstorm about what action to take. The public defender in Chambers’ jurisdiction has already fired a shot over Chambers’ bow, filing a motion for a special prosecutor to evaluate the deputy D.A.’s financial interest in a pending robbery trial. Meanwhile, the word in the halls of the courthouse is more like the shouting in the streets in Tahrir Sqaure, with thousands of Egyptians waving their shoes at Mubarak, screaming “go away, go away.” I have yet to run into a single attorney who has not been offended by the spirit of the policy.

In addition to the motion that has been filed, perhaps a letter from the CCDB to Chambers might help. The letter could suggest that the simple and ethically safer solution to motivate prosecutors to try more cases is to sit down with each individual prosecutor and tell them to put on their game-face, prepare the case diligently, and pick a jury. Worthy performance, measured by superiors in terms of whether justice was served (either through conviction, plea bargain, or even dismissal), results in promotion. Turning prosecutors into hit men just cannot be a good thing.

Even though I have picked 135 juries, and have worked as both a public defender and prosecutor, I still have a lot to learn when it comes to navigating the ins and outs of the legal system. Being an effective litigator and successful at trial is a life-long endeavor, is rarely smooth sailing, and can only come through practice and dedication. But, as of today, this is what I can share with young lawyers who are just entering the fray:

#1: LOSE THE BADITUDE

Bad attitude. Baditude. Nastiness. Lawyer ego plus client ego plus a sense of entitlement equals Baditude. Lose it. It will damage your case and your reputation. Just be kind, for everyone is fighting a great battle.

#2 DON’T BE A CODEPENDENT TO CORRUPTION

Your clients will ask you to do things that are far worse than anything you ever thought of in your darker moments. They will ask you to hide assets, put on false testimony, and mislead the court. You can’t. You won’t. Be firm and dismissive (see baditude). If it comes to it, negotiate the return of their money. Show them a legal directory and tell them there are plenty of other choices available. Show them the door.

#3 COMMUNITY

Compete with yourself, not your opponent. Aren’t you trying to best your last court efforts and learn from your mistakes and missteps? Make a friend out of opposing counsel. You are a member of a community. Your opponent is also your brother and sister at the Bar, as they used to say many years ago. Sure, there are some fools out there, but there are also the boys and girls that brought us seat belts, clean water, desegregation – lawyers are the social architects that have transformed society into a better place. Add a sense of humor to that, and you have some decent people to have lunch with.

#4 PREPARE FAR IN ADVANCE

Anyone can have the will to win, but only a few have the will to prepare to win. Instead of worrying about new business and search engine optimization and marketing, drill down on the cases you have. There is much to do on that file and you know it. Work the cases you have until you know every scale on the hide of the fish.

#5 DEVELOP THE STORY IN YOUR CASE

Walk away from the office. Take a break from obsessing and bickering over discovery. Grab the file and take it to a coffee shop or a park. Look outside. It’s a sunny day in Colorado. (Aren’t they all? It’s one of the major reasons we live here.) Now look back at the file. What is the theme? What is your story? If you do not know how to construct a story, read Robert McKee’s book. It is entitled, what else, “Story.” It is the bible for screenwriters. You don’t like movies. Fine, read “How To Argue And Win Every Time” by Gerry Spence. Either book will serve you.

#6 JURORS: THE ULTIMATE CONSUMER OF YOUR PRODUCT

Run an ad on Craig’s list for mock jurors. Try your case in front of the mock jurors at the office on a Saturday. Talk to the mock jurors. Listen. Try the case in front of a real jury. Talk to the jurors. Listen. They are the ultimate consumers of your product. You can learn a lot from them.

#7 GOVERNMENT EXPERIENCE

If you are lucky enough to get the offer – take any position in the government that allows you to try cases. Muni or County court, public defender or prosecutor – just try cases in front of juries. It is a tremendous opportunity. You will be tossed into trial with no experience. Chances are, you will be annihilated. So what? It is a great education. You will develop a preternatural sense of ease. Short of that, the best thing to do is sit in court. Take your files, go down to the courthouse. Ask the bailiffs and courthouse staff who is in trial. Then try and find out who is worth watching. Sit in that courtroom and drink up the art of trial advocacy. A great, heartfelt story is being told with no baditude and a ton of preparation.

Thank you all for being here for our monthly luncheon. Let me apologize for keeping you here so long at the last luncheon. There were complaints that people have to get back to their office, and I promise you we will not keep you past 1:30.

We are lucky to have today’s speaker. Those of you who have heard him before can assure the rest of us that you are in for a real treat.

While the tables are being cleared and the coffee is being served … by the way, it is all decaf. We would not want to keep anybody awake during office hours. How about that? As you saw today, we used the buffet rather than having the luncheon served. The buffet is cheaper and the dessert table is really something—cheesecake, ice cream, and the big chocolate cake. Some people have complained that the dessert table is putting some weight on us. I’ve noticed it, and I think we ought to go back to having the luncheon served, but I’ll leave it to the committee.

Before I introduce the speaker, I have several announcements to make. The Convention Committee wants you to know that they have just about settled on a resort you will love. I and the chairperson spent a week there as guests, and we know you will like it. As soon as we send out the announcement, please get your reservations in. The hotel space is limited. The golfers will love it. Before we made our choice, we visited and inspected the Hotel del Coronado, The Breakers, The Homestead, The Greenbrier, and the Fairmont Hamilton Princess Hotel in Bermuda. All by invitation.

Can you hear me back there? We have trouble with the mikes. Is that better? Raise your hand back there if you cannot hear me.

OK. Now a few more announcements. Still having trouble hearing me? There we have it. I want to get these announcements out of the way quickly so I can introduce the speaker.

The head of the Building Committee, Robert Benchley, could not be here, but he wants me to tell you about the cost overrun of the build–outs in my new office. There is talk about the reason the carpenters walked off the job. They claimed interference by the staff. The full story will be in the newsletter. There may be litigation because of liens. I don’t want to take the time about the details, the bids, and the workers’ compensation claims.

There are some guests here. I want those who have brought a guest to raise their hands and have the guest stand.

Our newsletter, which you all get, carries the announcements of our next meetings and the tentative speakers, so I won’t go into that except to say that the Speakers Committee continues to do a great job lining people up. We like to get people who are in the news like the speaker we have today. By the way, if anyone wants to serve on the committees, just let me know.

Let me get on with the announcements, and then I will introduce the speaker.

By the way, if anybody has some suggestions for speakers, talk to Charlie.

Just a few more announcements and we will get to our speaker. We have here today members from our Maryland group. I’d like them to stand. Thank you.

And the final announcement is the reception that will be given to honor those of us who have been given awards for public service. Our members do a lot of pro bono work and we thought we should have a reception for them, and I hope the turnout will be good.

Well, unless someone here on the dais would like to say something, I want to say a few words about the speaker. Joe, you want to say something? Let’s hold it so we can get this moving. This reminds me of the great opener I heard our speaker give. I don’t think he would mind. Let me see if I can recall it.

I think it goes this way. He opened by saying that last month he was in the audience watching the speaker. The speaker was going on too long. And then he saw someone on the dais take the water pitcher and raise it above the speaker’s head in order to hit him on the head and shut him up. As he brought it down, the speaker moved forward and the water pitcher hit another man on the dais. That man fell forward. He was heard saying, “Hit me again. I can still hear him.”

Well, I hope he tells the story because he does it better than me.

By the way, he has promised to take questions, and if you have any questions you can use the mikes that are around. I know there will be questions. I hope the mikes are working. Last month they were not working. By the way, I assure you we will do our best to get you back to your office by 1:30.

There is something that has been brought to my attention. Mr. Rogers, our treasurer, has resigned. I have put together a committee to review the accounting up to now, to the last penny, and, of course, we reported it to the Bonding Company. I am sorry to say the Bonding Company is requiring us to make a report to the police of what was taken by the self–dealing. We should have caught on when Rogers was buying a new convertible Mercedes each year, and he liked taking vacations. I will take responsibility for not calling him in and asking him where the money was coming from.

Our speaker’s bio is so long that I can only give you a summary. He tells me he is going to run again for the state Senate, and he would like our help. He knows us and we know him. His flyers are on the table as you go out. Please grab a handful and drop them off at all the neighbors’ houses. The full bio is in the newsletter. He was born and raised in Ohio and attended the local schools. Let me speed this up. Let’s see … yes, and he graduated cum laude from high school and law school and joined the department in 1970, and will you all join me in welcoming our speaker.

I am sorry about the time, but if anyone has to leave, we will understand.

In reflecting upon the trial, the seventeenth century fable of the cat’s-paw came to mind. In Jean De La Fontaine’s fable, the monkey and the cat, Pug and Tom, lived in a castle and shared the same master. One day, Pug smelled the inviting aroma of roasting chestnuts in the fire and said to the cat, “Tom, could not you and I share this dessert…had I such claws, I would quickly try, lend me a hand….” Pug seized the ready paw and pulled the nuts from the fire without hurting himself; poor Tom was left burned. The lesson being that if there is something unpleasant or unpopular that needs to be done, and it is far too risky for one to do the work themselves – one needs a cat’s-paw. In this case, the “victim’s” cat’s-paw is a criminal prosecution. The police are sympathetic to the damsel in distress and the younger district attorneys have had trials but have not experienced the tribulations of child rearing and divorce. They often lack skepticism, disregarding the possibility that the Pugs of the world are capable of using the prosecutorial machine to unscrupulous ends.

At trial, the “victim” said the photographs were taken the day after the injury in 2008. Our Ph.D. forensic scientist said that was impossible based on the age of the bruises. Moreover, the age of the bruises happened to coincide with an Ultimate Fighting party where the “victim” drank heavily and challenged others to wrestling matches. The alleged victim was dismayed when our out-of-state witness flew in to tell the jury about the party and how the “victim” really got the bruises. Thankfully, the judge already understood the lesson of the fable, and allowed the jury to consider these CSI-esque challenges to the “bruise” pictures and eyewitness testimony of the “victim” wrestling at the party. In the end, the jury would not allow the prosecution to be used as the alleged victim’s cat’s-paw. Our client was acquitted of all charges.

Lists

I was taking a cab to LaGuardia Airport hoping to catch the two o’clock shuttle back to Washington. As the cabdriver neared the Argosy Bookstore on East 59^th Street, I felt a pull I could not resist. I told the cabby to stop. How could I leave New York without looking over the stock in the outside stalls at the Argosy?

The book I bought that day is Minority Report, the autobiography of Elmer Rice (1892-1967). I knew of Elmer Rice’s interesting career. He started out as a New York City Lawyer and became a successful playwright and novelist.

In the book, Mr. Rice records his observations on a jury trial he watched many years ago. He says he was interested more in the performance of one of the well-known trial lawyers than in the subject matter of the case,

as one might go to see a star, no matter what play. The analogy is close, for the conduct of a jury trial depends more on the art of acting than upon the science of the law. Frequently all the legal knowledge a trial lawyer needs is an acquaintance with the rules of evidence, which are fairly simple. The day is won by obfuscation, trickery, and histrionics. I saw some notable performers of the time, among them Francis L. Wellman, who wrote several books on the art of cross-examination, and Dudley Field Malone, a smooth rhetorician, who later appeared in the Scopes evolution trial in Tennessee.

Things have changed since those days. Now a trial lawyer must give nights and days to mastering the documents and the depositions, the requests for admissions and the interrogatories. Once that is done there may be some consideration given to the dramatic. Shortly after Mr. Rice was admitted to the bar, he wrote the hit play that changed his life. It was a courtroom drama entitled On Trial.

Mr. Rice ends his autobiography with a list summarizing what he says life had taught him. Here is his list:

it is better to live than to die;

to love than to hate;

to create than to destroy;

to do something than to do nothing;

to be truthful than to lie;

to question than to accept;

to be strong than to be weak;

to hope than to despair;

to venture than to fear;

to be free than to be bound.

I like to read lists because I am a list man. Each morning I make a list. The list begins with the date and day of the week. Then follow numbered items identifying the cases of the moment, with a word or two on what needs to be done. Very often some guiding principle, not unlike those on Elmer Rice’s list, finds its way in.

Below the main list I write in three or four items concerning which I detect a mental block that prevents me from doing what must be done. My block items vibrate with apprehensions and fear that if I act something will go wrong. But, as Elmer Rice says, it is better to do something than to do nothing. But there are things to be done that I just cannot do. Therefore I ask someone else to take the assignment, someone unaware that I am stumped. If no one is available, I go to a quiet room and close the door. I make a list of all the reasons I am hesitant. In a few minutes I can get at the source of the ominous vibrations. Often it is a sense that doing nothing is the best course.

There are many ways to do nothing. I write letters that are never sent. The drafting of the letter is a valuable exercise. It drains off bitterness, indignation, and confusion. The drafting requires research. It often requires doing something astonishing, like reading the file.

I find my lists from years ago turning up in books and coat pockets. The cases identified on the old lists are over. I can read each of the items without fear. I know how things turned out. Some won, some lost. All gone. Today’s list is another story. Each of the items represents something to be done and great uncertainty and anguish concerning how things will turn out.

Anyone making a list to guide oneself through life must include most of Mr. Rice’s list. It represents wisdom of the human experience. What would be new would be to discover someone who is able to perform, day in and day out, all that is necessary to attain the inner harmony that compliance with the list will bring. We do not need more wisdom. What we need is a Saint-John’s-wort type of herbal tea that, once ingested, makes obedience to the list a physiological necessity.

Let me add something of my own to the wisdom literature: Better to jump out of bed in the morning and jog over to the American University track than to hope that a half hour’s perfect repose will bring an insight that explains life’s otherwise incomprehensible contradictions.

*Posted with permission from Mr. Stein.

After 25 years as a criminal attorney, what can I share to help you in this decision? My experience. Eyes wide open or shut tight, I can still see the faces and places, all the judges, prosecutors, witnesses, and juries. The high-tech courthouses where every juror gets their own flat screen, and the dilapidated courthouse where there are not enough pens and pads for the jurors to take notes. Some trials are heartbreaking, other trials, a life-affirming, spectacle of mirth. No amount of charm or intelligence can overcome these simple facts: to win a trial, experience is needed and preparation is not an option.

What questions do you ask as you decide who will help you? Start simply. How many jury trials do you have? (A hearing is not a jury trial. A trial ends with a verdict.) What is your plan of attack against the charges and penalties? Will you go to war for me and my family? Be wary of the general practitioner that does “a little criminal law, mainly DUI, a little divorce, and a little personal injury.” Perhaps their criminal law experience is too little. Be wary of the giant, international law firm that sends in three lawyers and two paralegals for a simple continuance of the case. Perhaps your money would be better spent on an investigator interviewing the witnesses. Be wary of an attorney that has neither worked as a public defender nor a prosecutor; without government experience, how on earth could they get their feet wet? Don’t let it be with your case.

And what is real case preparation? Whispering questions to you in the hallway of the courthouse on the day of trial, or completely simulating the trial on a Saturday morning in the office conference room with six mock jurors six months before the actual jury trial? The latter experience gives you an idea of what the jurors might ask you after you actually testify, which is permitted under Colorado Law. Perhaps Roy Black, the famous Florida trial attorney that acquitted William Kennedy Smith, said it best when he said “anyone has the will to win, but few have the will to prepare to win.”

For an attorney with the experience, the knowledge, and the commitment to win your case, schedule a criminal defense consultation with The Eichner Law Firm.