Category Archives: Estate planning

Surly doesn’t win trials!

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I’ve known some very nice people. I’ve also known some rather surly characters. Some of the nice ones were (and are) successful. Some not so successful. The same thing can be said about the surly types. Donald Trump seems really nice, and he’s also really rich. Steve Jobs, sadly, appears to have been pretty surly when he didn’t like someone’s ideas. He was also really rich. So, if wealth is what you want, you can get it being nice or surly.

But I’ve discovered something over my years as a prosecutor and defense attorney. Jurors don’t like surly. They adore nice.

This week I am in the midst of another jury-trial heavy phase of my law practice. I’ve had 10 jury trials in the last twelve months. That’s more than you’d imagine. Most lawyers are lucky (or cursed, depending on their attitudes…surly?) to be in jury trial once every three months, so this has been a remarkably litigious year for my clients and me. I had a trial two weeks ago…NOT GUILTY! And another this week…NOT GUILTY! (Both were DUI trials, by the way.) I have another coming up the middle of December (I’m prosecuting for a municipality then, so will be going for a guilty verdict!). These last two trials taught me something very valuable. As I said above, Jurors don’t like surly.

Here’s what happened. In the first trial the deputy was surly from the get go (the incident was recorded on video). I can’t share details due to attorney-client privilege, but let’s just say that nature called and the deputy put the call on hold, even though there were clear extenuating circumstances that should have compelled him to be nice and allow the defendant to avoid embarrassment. In fact, shoot forward two weeks, and that’s exactly what the nice deputy did for the other defendant. After that first trial’s NOT GUILTY verdict, the prosecutor and I talked to the jurors. They unanimously did not appreciate the attitude (meanness/surliness) of the deputy. Fortunately for the defendant, not only was he mean in the field, but he had a really cocky, know-it-all attitude on the witness stand. The defendant, on the other hand, took the stand and was very humble and nice, and talked and walked as well then as the night of his arrest. Still, it was clear that had the deputy been nicer the outcome might have been different.

I’m happy he was surly.

Now for this week’s trial. That deputy was courteous and nice to the defendant on the night of her arrest (it was recorded on video, too). There were other circumstances there that I believe compelled the jury to find her NOT GUILTY (e.g., the video showed ok though not perfect driving through a construction zone, and she wore 5-inch high heels and didn’t have coordination issues when not performing “unnatural human acts”), but the comments from the jurors were night and day compared to the previous trial. They had nothing negative to say about the latter deputy’s attitude. They did think that what he saw on the video was different than what they saw (credibility?), but didn’t focus on him being a jerk like the other trial.

They thought the first deputy was a jerk. The second was “just doing his job.”

As my grandmother put it, “you can catch more flies with honey than vinegar.” So true. Officers who are courteous and polite with defendants and jurors tend to be more persuasive during jury deliberations even though they never enter the jury room.

By the way, I’ve adopted a combative attitude with witnesses in the past. This accomplishes two things. One, it puts the witness on the defense and he will likely weasel his way around the question. Two, it makes jurors hate me, which is not good for the client. Nice is a much better examination style. Nice attorneys get more helpful answers and endear themselves to juries (or at least don’t tick them off!). Hence, “what’s good for the goose (witness) is good for the gander (attorney).” If I’d been perceived as a jerk in these trials it would have likely cancelled out the officers’ surliness and the clients might have lost.

So there it is. Average, everyday people (including engineers, teachers, counselors, salesmen) prefer nice. If they prefer nice, so should we. So let’s be nice. It’s a really good time of year to adopt such an attitude.

If you find yourself in need of representation in a domestic, criminal, traffic, estate planning, or business matter, call me at 316-262-2331. Two NOT GUILTY verdicts in a row! I’m on a roll and would love to help you, too.

Copyright © 2012 Kevin Mark Smith

Legal updates for 11-16-2012

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The U.S. Supreme Court has agreed to hear an appeal by American Express contending a federal appeals court has created a “sweeping, unwritten loophole” in federal arbitration law. The ruling by the New York-based 2nd U.S. Circuit Court of Appeals allowed retailers to pursue a class action lawsuit …

Inside Straight: Identifying Dangerous Employees
How do we train employees about corporate policies, legal requirements, compliance issues, and the like? Here are some insights from in-house columnist Mark Herrmann. Continue reading »Follow Above the Law on Twitter or become a fan on Facebook.Tags: Advice, Compliance, Corporate Compliance, Human …

Marauding Lawyers Spur Fears in Pakistan
Lawyers in Pakistan received widespread notice when their protests led to reinstatement of the nation’s chief justice and called attention to an atmosphere of lawlessness in the country. Now some of the lawyers are part of the problem, the Washington Post reports. “In a nation where the rule of law …

Morning Docket: 11.12.12
* With Eric Holder questioning his job, and Deval Patrick dining at the White House, perhaps we’ll see our second black attorney general. Or not, because one of the Governor’s aides says he’ll continue his reign as a Masshole. [Washington Times; Buzzfeed] * When it came to sanctions for discovery …

Supreme Court to Decide if Police Can Take DNA from Suspects Arrested for Serious Crimes
The U.S. Supreme Court on Friday agreed to decide whether police can collect DNA samples without a warrant from suspects arrested for serious crimes. The case pits privacy rights against public safety, report the Wall Street Journal Law Blog, the Los Angeles Times and the Associated Press. At issue …

Anonymous Blog Comments Snag Another US Prosecutor; Suit Cited ‘Superfluous Spacing’ as Clue
A New Orleans federal prosecutor who was second in command to U.S. Attorney Jim Letten has been demoted after admitting she posted anonymous comments on a newspaper website. Letten announced the demotion of First Assistant U.S. Attorney Jan Mann on Thursday, the New Orleans Times-Picayune and the …

Grassley Wants Judiciary to Detail Fiscal-Cliff Spending Cuts, Derides ‘Chicken Little Mentality’
U.S. Sen. Charles Grassley, R-Iowa, isn’t letting go of Maui. The senator had criticized the San Francisco-based 9th U.S. Circuit Court of Appeals for holding its annual conference in Maui, and now he’s citing the trip as an example of travel spending that could be cut in the event significant …

Sotomayor Returns to Sesame Street with Career Advice that Includes Definition of the Word
Would-be princesses got some sobering news when Justice Sonia Sotomayor appeared recently on Sesame Street. It’s time to think about a real career, they learned. Sotomayor defines the word “career” in an exchange with Abby, described by Time as a “pink, perky, uber-feminine character.” When Abby …

3 Criminal Laws That Cops Hate to Enforce
No matter what you think about cops, you have to admit it’s a tough job to enforce criminal laws — especially laws that some view as a waste of precious time and resources. Ever been curious about what kinds of crimes police dislike enforcing the most? A recent Forbes guest…… Continue reading …

Don’t Break the Law When Hiring Holiday Help
With holiday shoppers set to give retailers a boost, ’tis the season for hiring temporary employees. While you may only need holiday workers for a short period of time, you still typically need to comply with the same employment laws for these temporary workers as you would for full-time employees..

Top 3 Space Heater Injury Risks
It’s getting chilly outside, and for many that means it’s time to break out the space heater to keep you and your family warm. But be careful, as space heaters can potentially cause injuries. Space heaters, including wood stoves, contributed to 32 percent of home heating fires and 79 percent……

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