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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. 

   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 

   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.

	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.

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