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In The News

Sunday, April 3, 2022

Taking a set of Bad Facts, Looking Behind Them: And Getting a Great Verdict

By Michael Nichols
Categories: Michael J. Nichols

When you hire a trial lawyer for a case - whether it is our firm or someone else, there is a really important piece that goes into the relationship: trust. Trust. It is almost as much trust as you have to have in a spouse/mate, child, someone who teaches your child - the kind of trust that is implicit and necessary to the relationship. LIkewise, we have to trust you to take our advice to heart - especially because you paid a lot for it, and also frankly to pay your bill.

You have to trust the attorney to take seriously the job of putting your life in her hands or his hands. What that means is this: when you cannot see what is going on, the attorney is working behind closed doors with or without staff; thinking about your case and your situation; working on strategy; trying to come up with the way that the attorney can take some really bad facts and either turn them into a good verdict or tell you straight up where you will stand in front of a jury to the best of the attorney's ability, i.e. "this could be a fast guilty verdict," or words to that effect.

Keep in mind, sometimes, we as attorneys have to tell you: "this is a toss up - I think a jury could acquit you but you never really know because you will not meet the jurors until the first day of trial."

I have a framed photo of Vince Lombardi in my office on one of the top shelves on a bookcase so it sort of "overlooks" me. Vince Lombardi was a head coach in the National Football League (NFL). His vaunted Green Bay Packers won the first 2 super bowls and a bunch of other things before that. Coach Lombardi had a saying that I wrote on the back of the photo so that I can read it when I need to reach down deep for motivation - especially on those nice summer days that I am in the office because I have to fulfill my duty to my client.

"Winning isn't everything - it's the only thing. But it's not just winning - it is the will to win - it is the will to prepare to win that makes the difference." That quote is so often just shortened down to the first sentence and taken completely out of context. "It is the will to prepare to win."

That is MY takeaway. That preparation is a process. It is a commitment.

The reason for that is because during trial, there will be lots of decisions that the lawyer has to make - some of these decisions come pre-trial about witness issues or evidentiary issues. The only way to make these decisions firmly, confidently and with the goal firmly in mind of what you want to argue to the jury in closing is with preparation.

You read and re-read the police reports; accident reconstruction reports; toxicology or DNA reports; you re-watch body worn cameras or listen to recorded witness interviews. You do it time and time and time again.

A lot of clients and court observers, even law clerks struggle with one issue in particular - often a winning trial performance is an exercise in restraint. The best questions that I have asked a witness - whether it is an expert or otherwise - are frequently the questions that I do NOT ask. I learned from famed-trial lawyer and cross examination expert Roger Dodd the following rule: it is their evidence: our theory, their lips: our theory. If the answer to a question on cross does nothing to advance our theory - then we do NOT ask it.

Another point that many people just do not necessarily appreciate when you are the client or the parent or loved one of a client is "why did the lawyer not say 'x' in closing?" There are a few critical aspects about that but most importantly is the concept of ethos, pathos, logos. That is a whole separate article but the bottom line is that you have to be credible in your persuasion. That is the pathos part of the "ethos, pathos, logos" concept. At the last trial, before closings, I told the client and his 84-year old mother, sister and his aunt that 'there are a lot of issues that you will wonder why I did not discuss in closing; there is a good reason for that: juries appreciate brevity."

I had a list of about 13 things that I wanted the jury to make sure to consider as takeaways along with the burden of proof of beyond a reasonable doubt and what reasonable doubt FEELS like. I have found that one most give the jurors the permission to embrace their power. The best way to do that is to simply tell them - "you have all the power in the courtroom - no one can tell you how to vote and no one can second-guess you: not even the judge and that is exactly what the judge told you in her instruction when she said 'you decide the facts ... that is your job and your job alone." Respect the jurors and their ability to somehow amazingly come to the right conclusion.

The takeaways:

1. prepare like it is the last trial of your life

2. stay discipline on cross - if this answer does not help the strategy - leave the question in your outline even if it would have produced a "gotcha" moment

3. in closing - keep it short.

Those of us who chose the world of criminal defense as a practice area know that it is a mission. Especially when it comes to defending drivers accused of drinking to the point of intoxication and then driving or using marijuana or other medications to the point of intoxication and then driving. I say that because so many times, people just assume - even the accused person - that someone arrested of drunk or drugged driving MUST be guilty.

It matters only what the government can prove beyond a reasonable doubt. “We are players in the American justice system. We have a duty to be prepared and put forth our best effort – not just for our clients and their causes but for the system. As flawed as it may be – for it is truly the best imperfect system in the world.”

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Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.