“…the Spirit of the Lord came upon Gideon, and he blew a trumpet…..”
— Judges 6:34
In general, I’m not a fan of made-for-TV movies. But sometimes, they’re worth a look.
Fifty years ago, on March 18, 1963, the United States Supreme Court handed down one of its most important cases. Gideon v. Wainwright , 372 U.S. 335 (1963), applied the 14th Amendment to extend the United States Constitution’s 6th Amendment right to counsel to all persons charged with a felony, regardless of whether the accused could pay for a lawyer. The case is directly responsible for the existence of the Public Defender system in this country. The case came about because a convicted felon in a Florida prison sent a hand-written letter to the United States Supreme Court, complaining that he shouldn’t have been convicted without representation by counsel. That man was Clarence Earl Gideon. His story was first popularly told in Anthony Lewis’ 1964 book, Gideon’s Trumpet, and later in a 1980 made-for TV movie of the same name.
The movie stars Henry Fonda as Gideon. Fonda portrays him as a stubborn, cranky several-time loser – frankly, as a bit of a coot. Gideon is accused of breaking into a Florida poolroom and committing petty larceny. Gideon claimed he didn’t do it. He asked for a lawyer and was denied. Forced to represent himself at trial, he was convicted and sentenced to prison. Convinced that he was entitled to a lawyer, Gideon did research in the prison library and hand-wrote – in pencil – a petition to the United States Supreme Court, which accepted his case and assigned Abe Fortas, a leading constitutional lawyer and later a Justice of the Supreme Court, to represent Gideon. What happened after that made history.
Fonda is brilliant, as he almost always is. He makes us believers in Gideon’s cause, even if Gideon was not particularly likeable. Jose Ferrer plays Abe Fortas and is equally impressive. One of the most interesting parts of the film, for me, is the fact that Fortas and Gideon are worlds apart in class, education, life history, everything. Yet together, they changed the face of American law. (It’s probably worth commenting that the Supreme Court, with Earl Warren as Chief Justice, probably was looking for a case to make that change. After all, why appoint Fortas, a constitutional all-star, if that wasn’t on their minds?)
This movie is important viewing for anyone involved in the legal system. For lawyers, it reminds us of the importance of the Constitution’s protections to individual citizens and that the law’s lofty principles always have an impact on – and are always impacted by – those individual citizens. It reminds judges – and their clerks — that every case is potentially momentous, that it will not do to just give lip service to what appears to be a meaningless case, and that every case deserves careful review and consideration, even those seemingly never-ending pro se requests for post-conviction relief. It emphasizes for court staff that even the most persistent (or obnoxious) pro se may end up with his or her name on a United States Supreme Court opinion. And it should remind all of us of the role of the judiciary in the American system of government.
The title of this review was a phrase from the Old Testament book of Judges. Anthony Lewis used it as the epigraph to his book, which is immanently worth reading. Lewis himself died on March 25, 2013, just a week after the date of anniversary of the Gideon decision – and the day on which I’m writing this review. In Lewis’ obituary in the New York Times there’s a quote from a review of the book by Professor Paul Freund: “…we are made to see the general in the particular, to feel that, in the redemption of a forlorn outcast, the legal process is redeeming itself.” The movie of Gideon’s Trumpet will make you feel that, too. Please watch it.
And as you do, listen for that trumpet blowing……
This post was written by NITA guest-blogger Bob McGahey.
Trials are dynamic. Expect the unexpected, as it will happen. Witnesses don’t turn up, a key witness forgets important evidence and doesn’t recall there is a refreshing document (oh yes, it happens!), a judge suddenly shows interest in an aspect of the evidence you (and often your opponent) had not regarded as significant.
Ideal trial preparation involves detailed depositions of every witness, exhaustive discovery, and lots of time to explore every issue. Most cases do not have this luxury. In Australia, where I practice, we don’t have depositions – the closest we get is discovery and the filed affidavits of a witness’s direct evidence. In non-commercial law or family law trials we don’t even get the witness statements. We cannot be absolutely sure of how the pleaded case will be proved.
Can we practice the unexpected situation? No. But we can prepare for it and develop our internal coping mechanisms.
The first step is building a very solid case analysis. Not just the material facts that prove the legal elements and the sequence to make them persuasive, but really understanding how all the facts in the case fit together and having a separate section of your trial book for the ‘extra’ information you didn’t think you needed. Witness forgets? How else can you get the evidence in? A trigger from another event? Your question won’t help them remember (if it did it’s probably leading and inadmissible) but their answer gives you the word or two you can piggyback with to recover the situation. What about a different witness (even your opponent’s witness – a great defense technique)?
The second step is a solid understanding of the rules of evidence. Can you admit the evidence another way? What can you exclude if a surprise document appears? If a witness doesn’t appear, is their statement on oath so it is admissible, even if it will have less weight?
These two steps help develop the third – flexibility. If you know your material and your rules of evidence, you can think of different approaches for direct and cross. Consider them beforehand, especially with your essential evidence. Do I have 2 or 3 or 4 ways of proving it? Can I prove another way and explain away the memory lapse in submissions and ignore the absent witness? Don’t have one style for your cross-examination. If you deposed their witness, you have some idea of what they will be like as a witness. If not, you need to see how they present during direct. They may be helpful and friendly. If you challenge too early, you put the audience off side. Think about different styles to use to get the same information out.
The final step is mental. Are you prone to ‘stress’? Can you cope with anxiety well? Nothing quite accelerates the heart-rate like a bad situation in the middle of your case! Recognize your anxiety triggers and engage your coping technique (which usually starts with ‘breathe’). Time will seem to spin past. It doesn’t. Distracting thoughts like ‘I can’t believe that happened’ will intrude. Let them go and replace them with a grounding statement and acceptance, like ‘Ok, I can work with this’. A session with a psychologist to be shown some techniques that suit you can be money well spent.
Adjusting in trial starts during preparation in your office. In trial you have to decide quickly how to deal with the unexpected. You can anticipate many of the unexpected events – the effect is predictable, how it occurred may not be – and have the confidence that you have options. When it happens, sip your water, take a deep breath or three, and confidently take your next step. Your audience will never realize what happened, or if they do, will admire your skill.
Graeme Blank is a barrister practicing in Australia. He has conducted over 150 final hearings. He has been an accredited NITA coach for 10 years, is a coach with the Australian Bar Association and this year will be on faculty for the Advanced International Advocacy Course at Keble College, Oxford UK. He convenes a Masters level advocacy course at the Australian National University and coaches advocacy for a wide range of government agencies and international law firms.
A euphemism such as ‘adaptability’ is a less direct word used in place of an anxiety-causing word such as ‘crisis’ or ‘gut-wrenching’. At trial adaptability is called for when everything goes all pear shaped because a witness or the judge serves up the unexpected and a seeming miracle is called for.
Those who are known as ‘adaptable’ survive where others would perish. They conjure up an answer and retake control. Their opponents are frustrated and envious. Jurors and judges may smile. Typically, when asked later how they did it, the magician advocate has no answer: it just happened.
This ability to face disaster and surmount it is a trait of other competitors where endurance and interpretation of the environment are required. Consider such examples as a chess master, a comedian performing live, or a top quarterback.
We have insights from the neurosciences. We know that, along with reactability, adaptability draws upon talent and experience as well.
Not much needs to be said about talent. We can see it in top performers in any field: it’s a gift that gives the lucky an edge over the rest of us. Take any two, three, or four performers, give them the same training, and watch how talent sorts them out.
When it comes to experience there is rather more to say, beginning with the sad but true observation that those with more talent tend to attract opportunities to gain more and better experience. The inevitable result is that those with talent attract the best experiences and are thus best equipped to tackle big problems, while those with little talent, some enthusiasm, and mediocre settings for their experience bump through life for the most part.
The best experience brings together lessons learned from past trials, an approach to trial preparation that is so effective that you see links that the less prepared would miss, and techniques for responding in the moment.
From observation, discussion with others who are adaptable, and my experience I offer the following suggestions to enhance your ‘adaptablility’ (while hoping that neuropsychologists will conduct and report upon rigorous studies sooner rather than later):
Hugh Selby has taught on a number of NITA courses. Along with his NITA friends Chris Behan and Charlie Rose he runs www.advocacyteaching.blogspot.com , a blog with a focus for all those interested in improving the teaching and learning of advocacy skills, especially at law school. He is based at the Australian National University, email@example.com