Dan Small: Complex trials are an occasional necessary evil, although they are not as occasional as they ought to be. Nor are they always necessary. Still, they happen. And sometimes it seems the last thing the lawyers who try those cases are interested in is the impact on the jurors. Juries don't enjoy long trials, news flash. And they don't enjoy being bombarded with hundreds and hundreds of exhibits. They also don't enjoy feeling lost, ignored, or bored. Nonetheless, in complex trials, jurors tend to feel all those things. The causes are not hard to figure out. It's because lawyers do one or more of the following:
- One, they bring too many charges in a criminal case or assert too many claims in a civil case.
- Two, they offer too much evidence.
- Three, they don't explain the things they offer.
- And four, they will not shut up.
Part of the problem arises from a group decision-making phenomenon in which cases are brought by teams of lawyers and agents. Every participant views the other side as bad guys deserving of every charge and can insist that something should be added, but not insist that someone say no. Some years ago, I represented a distinguished medical professional accused of criminal tax fraud. The government viewed her as a brilliant, sophisticated person, which she was professionally, who should have known every nuance of the tax code. So they threw the kitchen sink at her. Every possible tax violation. In what could have been a simple evasion case.
But the reality was different: as wise and together as she was in her professional life, it consumed all her energy. She was a mess in her personal life, particularly on financial things:
- Unpaid bills, not just taxes, unanswered mail.
- You name it, it happened.
She had the money; she just made a mess of it. Alas, when the IRS began its work, she was accustomed to portraying her professional image, respect, brilliance. So she became defensive and even belligerent in dealing with the IRS. Of course, the IRS knows how to deal with those who choose to tease the bear. It's called refer to criminal, which is what they did here. And at that point, she retained me to defend her.
We are all a combination of different people. The biggest challenge for me was getting her professional self to be honest about her personal self. It was one of the rare criminal cases where she would have to take the stand and explain. Convincing her and preparing her to do that was not easy. But finally, she understood.
She took the witness stand in her defense and gave honest, embarrassed and even tearful testimony about what a mess things had become and how she had been too ashamed to admit it and to get help. She spent her life helping others but couldn't ask for help herself. It was a compelling testimony. And maybe all of us have little pieces of that in ourselves.
The charges against her required the government to prove criminal intent. And once she took the stand, it just wasn't there. She was acquitted. After the verdict, the judge gave her a stern lecture about getting a bookkeeper and an accountant and straightening out her act. And she agreed. Complicated disputes do arise, and sometimes they do need to be tried, but if you're involved in a complex trial, you should be thinking constantly about how it can be streamlined.
Here are some other cautionary examples:
- First, the retrial of former Illinois Governor Rod Blagojevich. According to news reports, during the first trial, the government's case so befuddled the jury that they drew up their own timelines of alleged misdeeds and taped them to a wall as they deliberated. One of the jurors complained it was like, "Here's a manual; go fly the space shuttle." For the retrial, prosecutors streamlined the case. They dropped some of the more complex charges, such as racketeering and dismissed charges against Blagojevich's brother and codefendant, which allowed them to focus entirely on the former governor. So the result: the first jury hung on 23 of 24 counts; the second jury found him guilty on 17 of 20 counts.
- Another example is a retrial of the Holy Land Foundation, a Muslim charity accused of financing terrorism. The original case was criticized for being bloated and overly complicated. No one had wanted to say, "No, this is too many charges." For the retrial, prosecutors dropped most of the nearly 30 original counts against the defendants. The results in the first trial after 19 days of deliberations — that's right, not hours, days. Nineteen days of deliberations. The jury either acquitted or hung on all charges. In the retrial, the defendants were found guilty on the remaining charges.
- Here's one more: in October 2015, a mistrial was declared in the criminal prosecution of the former leaders of the law firm Dewey and LeBoeuf. The case took months to try, and after acquitting defendants on dozens of charges, the jury remained hopelessly deadlocked on the remaining 93 charges.
The lessons are clear. Figure out what really matters and strip away everything else that you can. You may think that other things are important. You may think that the record needs to be complete. Those things may well be true in the abstract. But if the jury feels lost, overwhelmed and doesn't understand the case and has given up trying, they may project those feelings, sympathetically, to the other side, and it gets very hard to win your case. Don't do it.
