20 June 2018

[TPC] - Ellis Millsaps: Some Thoughts on Trial Lawyering

- est 2010 -

I used to be a trial lawyer. Guess I still am if I were willing to pay some bar dues.
I don’t want to do that. I had a successful run, but there came a time when I had just burned out. Shouldering other people's last hope of freedom (and their family’s and their children’s) became more stress than I could carry on my fragile frame.

But there was a time before the advent of the Public Defender’s Office when I could safely say that in the past ten years I had won more not guilty verdicts for criminal defendants than all other Newton County attorneys combined.

I spent four years in the DA’s office, acting for a time as the District Attorney, before I lost the election for a fall term That turned out to be a good thing because defending people from the government turned out to be my true calling.

So I’m in a position to offer some trial advice to both sides.

For the defense, never refer to you client as “my client.” Always call them by their names. In most cases the verdict will hang less on the state’s evidence than whether the jury likes the defendant. I nearly always put my client on the stand for two reasons. First and most importantly because no matter that the judges charges the jury that the defendant's failure to testify should in no way be held against him, I firmly believe that most jurors think that if they were not guilty of the crime, they’d get on the stand and say so.

Secondly, I wanted to show the jury in the defendant’s own words that he was a human being whose life mattered, and that the jury could relate to him on common themes: he loves his children, he loves his mama, has humility and a senses of humor, is a good neighbor, etc.
Still, there’s a strong chance that the jury will not like your client. There it’s important that the jury like you. I always went with being funny, especially during the jury selection process where you have a lot of leeway to do that.

Let the jury sees you treating your client as a friend, putting your arm around him and conferring closely, maybe even exchanging smiles. They may think if you do this, well, maybe the defendant’s not such a bad guy after all.

Don't object just because you can. Let some technical points slide. Constant objections make the jurors think you’re trying to prevent them hearing the evidence because you’re afraid of the facts.

For the closing argument, always take your major free point: in the United States of America the government doesn’t decide criminal cases, you the citizen jury does. Drape yourself in the flag. You are standing between the people and an overreaching government.

For prosecutors, you have two strong free points you show always press. Firstly, as the Rolling Stones say, paint it black. Crime is bad, everybody agrees with this. No matter what problems you may have with your case, you can and should spend time focusing on the heinousness of the crime. Show the jury the gravity of the situation.

Secondly, let the jurors know that if they turn this scumbag loose they’ll never work in this town again.

I’m hosting trivia at 1917, a River Tavern in Porterdale on Wednesday nights at 7:30. Come experience the wit and wisdom of the cranky English major first hand.

Ellis was an attorney by trade (now recovering) but has worn many hats over the years: father, bus boy, stand-up comedian, novelist, wiffle ball player, rock'n'roll band manager, and at one time wrote a popular and funny column for The Covington News. A Fannin Co. mountain boy originally, Mr. Millsaps now stays at the mill village of Porterdale by way of 20 years in Mansfield. Usually funny and at times irreverent and subversive, he leans left in his political philosophy but can always be counted on for a pretty darn good write-up. The Chronicles are proud to have him involved. You can read his past works at TPC by visiting his Contributing Writer page