My Journey Below the Gnat Line in United States v. Stewart Parnell: How to Pass the Long Trial Test
This article by Gentry Locke criminal defense attorney Justin Lugar was published by the American Bar Association.
Being the incredibly interesting human being that I am, sometimes I find myself comparing dictionary definitions between American English dictionaries and Oxford English dictionaries or what I call an “English-English dictionary.” This bizarre habit, I think, stems from my less than successful efforts to learn Latin in high school as well as my great fortune to have lived and practiced law in London for the first four years of my career. During my time in London, I had the great pleasure of working with several literary types who were not shy to express their distaste for American English and their love of the Queen’s English. Despite recognizing that American English is a language unto itself, these Oxford and Cambridge grads (mainly Oxford grads) were always quick to correct any Americanized (or as they would write, “Americanised”) version of an English word.
The point of this diatribe at the very outset of this article is twofold: 1) to pique your interest and 2) to explain why it is that I look up words. (Wait for it … there is a point to all of this and never mind the self-indulgence).
That brings us to the point of this whole endeavor (or is it “endeavour”?): the word “trial.” While there are any number of differences between American English and “English English”, one thing we both agree on is the meaning of the word “trial.” At its most basic level, a trial is a test. In the legal context, it is a test of evidence and a test of proof. Any practitioner will tell you it is also a test of credibility, a test of common sense, and a test of practicality. It is a test to a jury; it is a test to a judge; it is a test to the lawyers and parties that are part of the proceeding.
What I learned during a sweltering summer down in southwest Georgia during a two-month criminal trial for the much maligned former president of Peanut Corporation of America is that a trial of such length and complexity is a real test for an individual, and for a team. It is my hope that in sharing my successes and challenges in this endeavor, I can assist at least one other person in preparing for, executing, and succeeding at such a difficult test.
Here are some of the key lessons I learned:
I. Pace Yourself
A long trial is like a marathon. Most of the hard work goes into the training leading up to the event, and if you fail to pace yourself along the way, you will certainly fall short in the end. I know what you’re thinking: great, Justin, common sense; why do I need to read this article to understand that? The reason is simple: no matter how many times you hear it, no matter how many times someone tells you this specifically and no matter how many times you can tell yourself this, you still won’t do it. You’ll start off out of the blocks so excited and ready to go that you’ll wear yourself out if you’re not careful. Fortunately, I was part of a team of experienced trial attorneys who have conducted hundreds of jury trials, some of which lasted months on end. These folks refused to let me burn out. They knew that proper preparation and the ability to step back and reflect on a day’s trial happenings are just as important, if not more important, than checking and rechecking and rechecking and rechecking … and rechecking and rechecking … every little fact, nuance and legal theory upon which you’ve been building for the months leading up to trial. So when practical, and based on witnesses and various responsibilities, we took time off during the week in the evening to reset and to unwind (insert beverage of choice … in our case, bourbon). This was key. Jurors noticed it, the court noticed it, and our opponents noticed it. We were rested, we were sharp, and we had a demeanor in court that conveyed confidence and trust.
II. Don’t Be Afraid to Listen to Your Spidey Sense at ALL Times
Even if you can’t put your finger on why your Spidey sense is tingling at that particular moment, jot down some notes when something feels off. If you notice some physical movement or an inconsistency of some sort by a witness, even though you may not know what it is inconsistent with at the moment, jot a note down. Be ready to explore it on cross examination or with other witnesses. Be ready to remind your trial partners of it. Even if nothing is inconsistent or “off” about what you observed, the jury might begin to think there is something there. Pay attention to what is not apparent. And you might be able to make a mountain out of a molehill. So do not underestimate your gut instinct as a human being. Evolution has equipped our brains to recognize unspoken and sometimes inarticulable observations about our environment. Listen to them. Embrace them. Act purposefully and with thought based on these observations.
III. Keep It Old School
I like technology. I am not afraid of it. I like to use my iPad and I have used it in court before in trial presentations. I also use document vendors and review platforms such as Concordance, Relativity … you name it, we’ve tried it. But a trend I’ve noticed both from the government’s side, and on any side of the courtroom really, is the fact that sometimes people rely too heavily on technology in large cases. Sometimes there is just no substitute for good old-fashioned sleuthing. By necessity in our peanut case, we had to figure out the government’s organization of its electronic files because there were problems with the databases they provided to us (stay tuned for the exciting episode of “Brady violations: our pending appeal in the Eleventh Circuit … riveting stuff, I know”). I personally had the good fortune of spending hours and hours and hours and hours and hours and hours … familiarizing myself with documents obtained through search warrants, information obtained from personal laptops, and from various electronic sources across the company. During the course of my review, however, structures and patterns emerged that were lost on the prosecution in this case. It made me think this probably happens a lot more often than people realize in the ever burgeoning world of large document cases. What I noticed that no one else noticed was the fact that structures existed within the organization of the documents that told me something about the documents that nobody else knew or understood. I will save you the boring details (unless you want to talk about it at the next WCC conference – I plan to take the arduous journey to the Chateau Elan again this year), but suffice it to say, buried in box 13 of 3,612, in a subfolder that was labeled a particular way, I found a key file that the government knew nothing about. In relying solely on search terms and sophisticated review platforms, the government entirely missed a key piece of information that we were able to later use to our great advantage. So while we all know the devil is in the details, sometimes the devil is in the structure of the files and not the content or search terms solely.
IV. Push the Fear Inexperience Out of Your Mind
In criminal cases, at least in my view, the most basic human right is at issue – liberty – and this can weigh on you. Yes, money is important, declarations of right and wrong are important, but ultimately, apart from death penalty cases, human freedom is the most valuable asset one can lose in a legal proceeding. So, when my trial partners, Thomas J. Bondurant, Jr. and E. Scott Austin approached me the night before the government’s summary witness, a 25+ year FBI veteran, was expected to testify, and asked if I was willing to cross-examine her, I was faced with a terrifying, but ultimately easy decision. Of course I would do it. Tom and Scott recognized that I had ultimate command of the material that would be at issue with the witnesses. I had proven to them, and to the jury, that I could be trusted to elicit important points on cross-examination in an effective manner. They had all observed my confidence grow throughout the trial, and knew that I was best suited to help our client in that setting. And I was. It was a thrilling and rewarding experience and our client was grateful and thankful that we were able to cut at the heart of the government’s case with the last witness.
Remember, all trials are just a series of tests. If you weren’t good at taking tests, you wouldn’t be a lawyer. So, the good news is, even if you don’t have a lot of experience yet trying cases, you can certainly recognize and appreciate the fact that you have a lot of experience taking tests and doing well taking tests. The hard part, at least for someone defending against the might of the federal government as I find myself doing constantly, is the fact that your odds of winning or passing the test are usually incredibly small. Despite all its shortcomings and failures, we are fortunate to have a system that requires our government or our opponents in any civil matter to pass a significant and difficult test in matters that can be of such importance as preserving liberty and property.
While my natural American tendency is to end on a note of sentimentality about how our system (even with all of its problems) is the best system on the planet, it probably makes more sense to share with you something you can actually use. If you’re going to be in a long trial, get a room with a kitchen. Eating out gets very old, very quickly and does a number on your health. Two, stay somewhere with a pool if you can. Nothing washes the courtroom off after a long day’s trial like a good swim. Three, try to spend some free time with family and friends if possible. Do not talk about the case! Finally, if you are in South Georgia, south of the Gnat Line, around the peanut harvest, bring a lot of bug spray and prepare to refine your palate to the delicacy that is Chloropidae (wiki it, and then read A Man in Full by Tom Wolfe).