I just finished my third trial. I’m sitting at counsel table in a mostly empty courtroom, with a few other lawyers as we await the jury’s veridct. I can hear the muffled voices of the jury through a vent as they deliberate. They are arguing, but it’s impossible to hear what they are arguing about. I’m sitting alone at counsel table. The defense attorney asked a young collegue to sit in for him while the jury deliberates. He’s sitting at counsel table as well, a few feet away, playing on his phone. The bailiff is at his desk in a corner. Listening to the jury argue is making me crazy, and I can’t stand thinking about it, so I make small talk with the defense counsel, who turns out to be a pleasant guy. But I can’t make small talk for the hours its taking the jury, so eventually I move to the back of the room and begin typing this latest entry in my ongoing series on the mistakes I’m making and how I can improve.
The first thing that jumps out at my is that I didn’t get my hands on the key piece of evidence in this case, the blood split, until the second day of trial. And I had to rely on the defense counsel’s sense of fair play in order to get it. I should have gotten the blood split earlier, so that I could have worked it into my argument.
I should have been more prepared with a cross-examination script for the defense expert. As it was, I went off-script a little and used a prosecutor’s manual that they provided me. It worked out, but the one mistake I can’t afford to make is lack of preparation.
I made some additional mistakes:
- I should have actually subbed the nurse who drew the blood, so that I could make sure that he attended;
- I should have been more careful about “drunk” vs. “under the influence.”
- I should have showed my exhibits to the defense prior to trial to make sure that any problems were resolved, instead of wasting time editing the transcript of the DMV hearing on the fly;
- I should have been more carefully about letting the defendant off of the hook for testifying by getting his testimony through the DMV tapes.