I’m not going to sugar-coat this point: rules of evidence can be a bear. Not a cuddly Teddy Bear with button eyes—a ferocious hiker-eating grizzly type bear. Here’s just one example of the way that bear can eat up precious brain-space: in the Federal Rules of Evidence, Rule 401 tells how to figure out whether evidence is actually relevant to the case or not. It says evidence is relevant if it “has any tendency to make a fact more or less probable than it would be without the evidence” and also “is of consequence in determining the action.” Almost as simple as legal language ever gets. But—then there are paragraphs of notes below those points that go deeper and deeper into what makes a relevant piece of evidence and why. If your eyes aren’t crossing by the end of paragraph two, it will be a minor miracle. If you don’t want to walk into court and slop folders and boxes full of documents and transcripts in front of the judge only to have him or her rule it’s all completely useless regarding your case, you will want to have a nodding acquaintance with those notes as well.
And that’s just Rule 401. There are hundreds of Federal Rules of Evidence.
What’s the first rule of topless beach volleyball? Don’t be an asshole. This applies in court, too. Being polite and learning the right way to address the bench and the team on the other side can go a long way. I don’t care if the judge looks like your estranged third cousin who ran off with your parents’ only tractor—you call that woman “Your Honor.” Also very important: dress well. The clothes make the lawyer! Or in this case, the citizen who is so bold that they think they don’t need a lawyer. Get your hair done, throw some wax in your mustache, Polident your dentures to an ivory shine—clean up, but good.
It’s vital that you play by these rules if you want to—at the very least—get through whatever you are doing in front of the court without looking like a complete schmuck.
So there it is—watch court happen, learn the rules, organize your arguments, get your evidence in order, be nice, and look snazzy. This whole law thing is a big ol’ prickly patch of briars, and I could get all tangled up in need-to-know nuggets… but there just might be a different way out of this snare.
Buyer beware: this “different way” could be forced upon you, depending on the seriousness of the case. If you’re up on a mass murder charge and figure, “Hey, I know the perfect defense for killing all those people and I’m the ideal person to present it,” then it’s a good bet the judge will appoint standby counsel.
Now be cool, don’t worry! Standby counsel isn’t there to bogart all the fun. No, this is an attorney whose job it is to guide you through this rocky terrain we’ve been talking about, and be on tap if—for whatever reason—you can’t continue representing yourself. Like if you call your former buddy to the stand to ask him questions about why he got on your nerves so much during pub trivia that you had to tackle him in the bathroom and stuff urinal cakes in his mouth, but the sight of him makes you so upset that you become, shall we say, disruptive? In a case like that, the judge will ask your standby attorney to step in. They’re your legal understudy, ready to play the role after you’ve danced yourself right off the front of the stage and broken both legs.
You know what I’m going to say, right? The best way to sum this up is “Hey, hey, don’t!” The system sucks, yes, and it’s often stacked heavily in favor of the court—but that’s why guys like me are out here boiling water and building emergency lean-tos in the frozen wilderness every day, for clients like you.
Ah, now we’re going to have some fun. I’m going to make a few assumptions: that you are willing and hopefully able to hire legal counsel, and that you have the luxury of time. Time to research defense attorneys, weigh their strengths and weaknesses, time to decide whether they smell of bottom-shelf bourbon and discounted aftershave.
That’s right, not all lawyers are created equal. After all, we’re only people, just like you! We’ve all come to practice through different educational paths spanning a huge variety of learning institutions.
True, if an attorney has a degree from Columbia or Harvard Law, they’ve got a solid gold education behind them and were probably born with some high-wattage brainpower in the old cabeza. But that doesn’t mean that every time they walk into a court of law they are going to completely smoke a competitor who pursued their legal education via correspondence or at an affordable night school. I’ve got to believe that the law’s the law, no matter who you are. Sunbathing on a well-maintained Ivy League lawn with a heaping scoop of privilege in your parfait glass sure as hell counts for a lot in this world, but it doesn’t automatically spell winner in the courtroom.
In fact, the night and correspondence school counselors are sometimes your best bets because they are, by far, the hungriest remoras hitching a ride on the great white shark that is legal practice.
Not to mention: education is one thing, cojones are another. Or, for the ladies—labia of steel? Think about it—do you want Mr. Cape Cod von Golfpants who can recite the history of rules of evidence backward while stirring the rocks in his Old Fashioned, or the ambitious gal who put everything on the line, working seven days a week and sleeping three hours a night to tame this wild beast that is the law, because she genuinely believed she could make a difference in her community? There’s nothing more powerful than a true believer, my friend. Money can’t buy sheer pluck.
Now that we’ve gotten that prejudice out of the way: let’s break down what you want in any attorney, whether he studied at Harvard’s Golden School of Legal Wizarding or at Little Donny’s $5 Tattoo Parlor and Education Center.
In the legal zoo, there are two kinds of attorney. Behind the glass in the civil house we see the civil litigator. He or she is wearing high-end clothing, expensive hair products, and is parked in a gorgeous office building with a staff and sometimes several other lawyers of the same species. See those papers stacked neatly on their leather desk blotters as they relax for a moment with a game of Words With Friends or some choice pornography? Those documents are related to lawsuits.
It’d be easy for me to slam this as boring work, but it’s not. Take, for example, the inmate at the Indian Creek Correctional Center in Chesapeake who filed a $5 million lawsuit against himself. It’s true, ol’ Robert claimed he violated his own civil rights in 1993 when he got drunk and subsequently arrested for grand larceny. He wanted to pay himself $5 million, but since he couldn’t work and was a ward of the state, he politely asked that the state pay it on his behalf. Judge Rebecca didn’t go for it, but I’m guessing she was entertained.
Civil law can bring in the big bucks for plaintiffs and for the attorneys, which is why we so often find them all gathered together in these offices like ants in an ant farm, just waiting for the next big cornflake to divide into pieces and carry off down their brightly lit tunnels, where they’ll feed bigger chunks to the queens—senior partners—so everyone gets to grow fat together.
Now let’s take a walk over to the big cats, the criminal defenders. These lions of legal acumen are sometimes alone, maybe working in smaller prides, and they live by different rules. They seek juicy red meat, not cornflakes or whatever else you feed ants.
How about I break down the differences even further?
• There’s a different set of rules for the swarming civil attorneys on their lucrative diet of lawsuits than for the lean, hungry predators working criminal law. A historic case demonstrates the difference: People of the State of California v. Orenthal James Simpson. O. J.—who, say what you will, was pretty funny in the Naked Gun movies—was famously found not guilty of slashing his ex-wife Nicole Brown Simpson and young Ronald Goldman to death. His legal team demolished the state’s case with rhetoric, psychology, and a little sleight of hand.