PODIUM:
Courtroom Jousts Now Done by Committee
National Law Journal (p. A23, col. 1)
October 23, 1995
By John C. Klotz
FROM ABRAHAM LINCOLN and Daniel Webster to Clarence Darrow,
Melvin Belli and Leslie Abramson, trial lawyers have nourished a
paladin image as chivalrous, solitary advocates of a client's cause.
Then came the O.J. Simpson case with its eclectic Dream Team defense
and prosecution by committee. This was no representation by
paladin. For both prosecution and defense, it more closely resembled
representation by mob.
The ostensible reason for the coveys of lawyers that appeared for
each side in the Simpson case was the complexity of the medical and
scientific evidence. The message was that no single attorney could
adequately understand, and thus clearly present to the jury, the
intricate details of the case. A team of lawyers, each expert in a
different aspect of the case, was required. To the observer, if not
the jury, the resulting chaotic representation led to a simple
question: Who's in charge here?
The paladin image of the trial lawyer is more than romantic
blather. The best trial lawyers are those who project a dominating
presence in the courtroom and yet establish a near-intimate
relationship with the trier of fact. A transference occurs as the
jury focuses on the attorney it knows and respects, and conse-
quently gives less weight to the likely guilt of the character the
advocate is there to represent.
Perhaps of equal importance, the great trial lawyer is also one
who masters the intricacies of the entire case and plots a coherent
theory. This does not mean that the advocate operates entirely
alone. Part of an advocate's skill is to assemble an appropriate
supporting cast of assistant counsel, experts and administrative
staff to enable careful preparation of the case. It's in the public
aspect of the case, when presenting it to judge and jury, that the
solo voice traditionally has been desirable.
Louis Nizer, a well-known paladin, wrote extensively of his life
in court and his remarkable courtroom victories. Those victories
were supported by the infrastructure of the large law firm he
founded, but he was the performer. While there is often a need for
other attorneys at the counsel table, in a well-managed presentation
the jury is never confused as to who the lead counsel is. Certainly
that was true for Mr. Nizer, throughout his career.
Diffused Talents
From the start of the Simpson trial, however, the multiplicity
of advocates diffused the considerable talents of its members. With
no single dominant voice, the defense often seemed confused.
Sometimes it even seemed as if the various components were working
at cross purposes.
Mr. Simpson was greatly helped to his acquittal by the evidence
of Los Angeles Police Department detective Mark Fuhrman's rampant
racism. F. Lee Bailey laid the groundwork for that issue during his
careful cross-examination of Mr. Fuhrman, although at the time, he
was criticized because his examination lacked dramatic flair. Chief
among the critics was Mr. Simpson's counsel of record, Robert L.
Shapiro.
The paladin image traditionally applied equally to the
prosecution side of the table. But throughout this trial, Los
Angeles District Attorney Gil Garcetti, who could well have played
that role for the prosecution, was absent from the proceedings
altogether. His involvement in the case was limited to holding a
few, generally inopportune press conferences and to deciding
strategy in the safety of his private office.
Customarily, when the stakes are greatest, the most effective
chief prosecutors leave their offices and enter the arena
themselves. As special prosecutor and then New York County district
attorney, Thomas E. Dewey headed large staffs of able attorneys. Yet
he personally tried his most important cases, including the
convictions of mob boss Charles "Lucky" Luciano and Tammany Hall
power Jimmy Hines.
Similarly, in more recent times, New York Mayor Rudolph Giuliani,
when he was U.S. attorney, was personally responsible for obtaining
the corruption conviction of Bronx Democratic boss and national
political power Stanley Friedman.
Even when chiefs have stayed behind the scenes, they have often
been represented by assistants who were themselves great defense
lawyers. Frank Hogan, Manhattan's longtime district attorney,
was not a personally extravagant figure, yet his office
nurtured self-assured prosecutors, such as Maurice Nadjari and
Richard Kuh, who had the personalities and the intellect to dominate
a trial. Judge Burton Roberts -- who was the model for the irascible
judge in Tom Wolfe's "Bonfire of the Vanities" -- was another.
Lack of Coherence
Before the Simpson case, Marcia Clark, the nominal lead
prosecutor of Mr. Simpson, had had an unbroken five-year string of
successful prosecutions. But it is questionable whether, during the
Simpson trial, she ever had the control a capable prosecution
demands. Had there been a single, coherent legal mind guiding the
case, would Christopher Darden have been allowed to embark on his
near-spontaneous and utterly disastrous trying-on-the-glove
experiment?
Perhaps the increasing complexity of the law has doomed the
paladin lawyer. It could be that scientific evidence has become so
complex that roving bands of expert trial counsel are inevitably the
wave of the future, although one would like to think that even
complex DNA evidence is not beyond the comprehension of a trial
lawyer who takes the time to prepare. If evidence is so complex that
it cannot be presented by a skilled trial lawyer, how can it
possibly be understood by the jurors?
In March of this year, Gerry Spence remarked that, were Mr.
Simpson his client, there would be only one trial lawyer. He did
add, however, that under the circumstances, he was amazed at the
success of the defense so far. Could that be interpreted as a
concession by one of the great loners -- recognition that his way,
distinguished and successful as it has been, may be changed forever
if the new team approach continues to pile up successes?
After all, when all is said and done, success is the bottom line.
Whatever the shortcomings of the Dream Team, it won the day. That's
something any paladin would understand.
Going to miss you, old fellow.
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Mr. Klotz, a sole practitioner in New York City who
specializes in litigation, is former counsel to the
New York State Assembly Committee on Ethics and Guidance.
E-Mail: johnklotz@johnklotz.com