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Rule 1: When the Judge Agrees With You, Stop Talking

Taped As a law student learning trial practice, and later as a young lawyer, I recall being instructed numerous times about "Rule 1," i.e., "When the judge agrees with you, stop talking!" Actually, I recall a couple of other commandments characterized as "Rule 1" -- "Get paid;" and "If anyone is going to jail make sure it is not you" -- but the "stop talking" rule was constantly reiterated through the years.

On his Simple Justice blog yesterday (via Anne Reed), Scott Greenfield offered perhaps the most startling reminder of the importance of Rule 1 that I've ever seen. It is a story, he writes, "of such abject stupidity that it can't go unnoticed." In short, as reported by the Whidbey News-Times, a woman named Patricia Sylvester was on trial last week on a vehicular assault charge in connection with a head-on collision that left a man with a collapsed lung and three fractured ribs. The woman was"crying and visibly shaking" as the jury filed in to deliver its decision: “not guilty.” Sylvester and her supporters in the audience reportedly cried tears of joy.

At that point, Rule 1 should have been firmly in place for Sylvester and her counsel, but for whatever reason, her attorney requested the court to "poll the jury." And that is when the confusion began.

As Greenfield writes,

In the ordinary course of affairs, the defense lawyer will request that the judge poll the jury following the verdict. That's because, in the ordinary course of affairs, the verdict is guilty. By polling the jury, with your eyes firmly fixed on those of each juror, staring intently and transmitting your telepathic message to speak out, tell the court that you don't agree with the verdict, let the world know that the verdict is wrong, you give the defendant one final chance to break free of the conviction. No, it doesn't work very often, but hope springs eternal.

But here, the verdict was "not guilty." That's "not guilty," as in case closed, defense wins, everybody gets to go home and celebrate. Not ... frigging ... guilty.

Unfortunately for Sylvester, the first juror polled said she did not agree with the verdict, which required the jury to go back into deliberations. The jury then went on to convict Sylvester of the lowest count. As Greenfield puts it, her counsel "seized defeat from the jaws of victory."

Bottom line? Always obey Rule 1.

Posted by Bruce Carton on October 22, 2009 at 01:00 PM | Permalink | Comments (2)


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