By Stephen Hayne
Hayne, Fox & Bowman
“Succeeding in Difficult Cases”. An interesting subject. The problem is—they’re all “difficult” to me. In fact, trying cases—any case, is the hardest thing I’ve ever done. The charge doesn’t matter much, just about every trial presents complications and challenges that leave me feeling barely up to the task. Trying cases feels like working the high-wire without a net, playing in the NFL without a helmet, facing off against the many-headed dragon with a tiny sword and cardboard shield.
Do I exaggerate? Maybe not—I think trying cases is actually harder than that. What else is as challenging? Brain Surgery? Flying on instruments in a thunderstorm? Where else do you have to stay tuned in to every spoken word, every inflection, nuance, gesture, facial expression? Where else do you have to process information so fast and accurately that you can make the right split-second decision, articulate the right reason and/or make the right adjustments in your trial strategy? Where else do you have a constantly changing, fluid reality—sometimes having to abandon your game plan completely and re-energize on an entirely different theme? Head coach in the final minutes of the playoffs? A quarterback running the two minute offense?
Trying cases is not just a struggle over the defendant’s guilt or innocence, it is a titanic test of the defense lawyer’s courage and toughness; a profound personal challenge, and one which often overwhelms. Not only must we meet the professional challenge, we must face an equally formidable enemy: Fear. Maybe you’re different. Maybe you don’t lie awake the night before a trial, staring at the wrinkles in the ceiling and wiggling your toes. Maybe so, but for me, I take turns preparing the defense and preparing a motion for continuance. Even with the mellowing effects of 25 years and many dozens of trials, I rarely mean it when I announce “ready” at the jury call. I should respond, “no, not really, but let’s get this damn thing on so I can get it over with.”
Is all this angst really necessary? Doesn’t it just get in the way? If I could just relax, wouldn’t I be more effective? I think not. I think the adrenaline charge is necessary, needed to push the most powerful tool in the defense lawyer’s arsenal to the surface: Passion. After all, if you don’t demonstrate a belief in your client’s cause, why should the jury?
I know, many of the people we represent don’t deserve that level of commitment. But without it, you are throwing in the towel before the bell rings. One of the greatest challenges to the defense lawyer is remembering the fight is for a cause, for the principles of injustice, honesty and fairness in a system able and eager to abuse its power. In particular, I recall my first trial, an experience in which my “passion” got a little out of control, but served the purpose. The memory burned with embarrassment for many years, until I was finally able to appreciate the valuable lessons it offered. It happened in 1973, when I was a third year law student. I concluded my law professors didn’t know anything more worth learning and decided to find out what the real world of law was all about. I set out to find a job as a Rule 9 intern. I didn’t want just any job, I thought shuffling papers was for sissies. I was a warrior for justice. I wanted action. I wanted to work for Alva Long. That’s right, Alva Long.
In my working class Rainier Valley neighborhood in South Seattle, Alva was a folk hero; a renegade lawyer who fought the powerful, who stood up for the little guy. I knew I wanted to be a trial lawyer and figured Alva was the perfect choice to give me my start. Despite lots of misgivings, Alva hired me as his first (and last) legal intern. He did so with obvious misgivings and for months I was relegated to following him around from municipal to district court, watching him defend an endless supply of accused drunk drivers in his, shall we say, unique style. Alva seemed determined to confine my participation to spectating and, unable to persuade him otherwise, I decided to be the best briefcase-bearer ever while awaiting my big break. For months Alva ignored me, not allowing a peep to escape my lips once we entered a courtroom. In truth, I was grateful, for I secretly feared the courtroom; terrified I’d humiliate myself at the first opportunity.
About the time I resigned myself to a year as Alva’s bodyguard, my big chance finally came. It arrived in typical Alva fashion; without warning and at the worst possible time. Like most law students, my future was mortgaged to the hilt and Alva paid me what I was worth. In other words, I kept my second job as a night-shift spray painter. Between Alva, work and law school, I barely found time to sleep. And, as luck would have it, my courtroom debut occurred on a day when I was near death with exhaustion.
December 11, 1973 was a cold, dreary Tuesday. I arrived at Alva’s office in mid-afternoon after working all night and attending classes all day. At first, I was relieved when Betty, Alva’s secretary, advised that he was under the weather and had taken the day off.
He left a list for you. It’s on your desk.
With a sigh, I walked to my “desk”, a TV tray in the far corner of Alva’s office, and reviewed his instructions. There were the usual tasks; call some clients, write a couple of letters and, at the bottom: Smedlack bench trial; 7:30 p.m., Enumclaw Muni Court. I couldn’t believe my eyes! A real trial! I didn’t know who “Smedlack” was, but he was now my client and I was going to try his case, even if it was in some podunk municipal night court. I should have sensed trouble brewing when I couldn’t find his file, but was reassured by Berry’s promise to dig it up before she left. I decided to finish the rest of the list first, so I’d be free to prepare Mr. Smedlack’s defense later. By late afternoon, sheer exhaustion overcame my excitement and I collapsed on Alva’s overstuffed couch for a few minutes rest. Since the trial wasn’t scheduled until 7:30, I figured I’d regain some energy and still have a couple hours preparation time.
Now, Alva’s office as in the back half of a storefront in downtown Auburn; windowless and well insulated. With the door closed and lights off, it closely resembled a bank vault. Pitch black and dead silent, it was a great place to take a nap—especially if you wanted to sleep for a long time. The next thing I recall was a distant ringing and, as my brain clawed its way to consciousness, a growing sense of unease. I opened my eyes to sheer blackness, thoroughly disoriented and aware that something felt very wrong. I crawled across the room in search of the blaring phone, knocking the receiver to the floor.
When I finally raised it to my ear, I heard a frantic voice:
VOICE: Mr. Long? Mr. Long? Hello, is this Mr. Long?
ME: No, Mr. Long’s sick, may I help you?
VOICE: He’s sick? He’s ‘sposed to be here. The judge just told me to call him.
ME: Who is this? (dreading the answer).
VOICE: Michael Smedlack. My trial is tonight
ME: Michael? Oh yes, of course! I was just about to head out there, got a little hung up. I’m trying the case for Mr. Long. He’s sick, but I’m not. I’m on my way. I’ll be right there.
ME: Mr. Long’s intern. Never mind, I’ll explain when I get there. Tell the
Judge I’m on my way.
VOICE: OK, but you better hurry.
ME: Fine, fine. No problem. I’ll be right there!
I dropped the receiver to my side and stared into the darkness. Oh my God, I thought. I’m dead. I flipped the light switch and blinked in its blinding glare, grabbing anything that looked like it might be Michael Smedlack’s file, finally finding it and a note from Betty:
You were sleeping so peacefully, I didn’t have the heart to wake you. Good luck tonite, I’m pulling for you.
The bitch! I stuffed the file in my briefcase and ran to my old American Motors Ambassador, thrilled when it roared to life on the first try. As I sped down the street it hit me: Where’s Enumclaw? After stopping for directions at a couple of gas stations and gnawing my knuckles all the way, I finally pulled up to the Enumclaw Police Station-City Hall-Municipal Court just shy of 10:00 o’clock.
Oh no! I thought. I don’t even know if he took a breath test! Fighting to control the panic, I thought: I’ll read the file once I get inside.
Running toward the courthouse, I saw a young man in a plaid shirt and jeans pacing the front steps in the bitter cold. I was still a block away when he yelled: Are you from Mr. Long’s? You better hurry, everybody’s waiting! As my client and I charged into the courtroom, the prosecutor, judge and witnesses all stared at the door.
Well, you don’t look much like Alva, remarked a white-haired, old coot.
No, Your Honor. Mr. Long’s sick. I’m his legal intern, Steve Hayne. I’m here to represent Mr. Smedley, er Smedlack. I’m very sorry I’m late, I ran into some problems getting here. (While not the whole story, I sure as hell wasn’t going to admit I was sacked out on Alva’s couch).
May I have a few moments to discuss the case with my client?
No you may not! We’ve been waiting twenty minutes. Mr. Prosecutor, call your first witness.
So call him he did, as I groped wildly through my briefcase for pad and pen. A weasely looking fellow in a white dress shirt, black tie and black slacks took the stand. I will never forget the agony of that moment—my very first trial and I didn’t even know why the cops had stopped my client’s car, how much he’d had to drink or even whether he’d taken a breath test. I fought an overwhelming urge to run screaming from the courtroom. Scrolling madly through my memory, I tried to remember something, anything, about trying cases from the tree months of criminal law clinic I’d mostly slept through.
Protect your record. Object to everything! I recalled.
All right! Now I had a game plan! I would “protect the record”—(an interesting strategy, since no record was kept in municipal courts in 1973).
I object! I shouted, slapping the table so hard I startled myself, barely resisting the instinct to cover my mouth. The Prosecutor, Dan Farr, was dumbstruck. He stared at me as though I’d yelled Fuck You! Unbeknownst to me, it was apparently the protocol of the Enumclaw Municipal Court to try cases with a certain gentility, unmindful of the rules of evidence.
The Judge cleared his throat and grumbled,On what grounds?
Relevance! I said, having long forgotten the question.
Hmmm, he mused. Sustained.
Hey, I’m on a roll, I thought. Scooting to the edge of my seat, I was ready to pounce. The objection opportunities astonished me! I mean, nothing this guy was saying was even close to relevant!
Then I saw Mr. Smedlack sit down in the shoe section and begin trying on shoes.
Trying on shoes? What’s that got to do with drunk driving?
Objection! I shouted. Relevance! I crossed my arms and smirked.
But Judge, protested Dan, I’m laying a foundation.
Ask your next question. His Honor replied
OK. What happed next? Queried Dan.
Well, said the now wary witness, Mr. Smedlack then started walking down Aisle F, looking at batteries, that sort of thing.
My God, don’t these hicks have a clue? When is my client going to get drunk, let along get in a car?
Objection! (My patience with these morons wearing thin).
Sustained, voiced my friend on the bench.
Dan, clearly confused, decided to cut to the chase.
OK, did you observe Mr. Smedlack do anything unusual?
Yes. He walked out of the store without paying for a pack of cigarettes he’d stuffed down his pants.
Dan wrapped up his direct without another objection, as I glowed like a neon strawberry. As the witness left the stand, Dan asked for a recess.
You know, he said, I’ve never seen anybody object so much. It’s late. Is your client willing to pay costs? We agreed to a dismissal in six months and left the courthouse. On the front steps, clueless Michael Smedlack practically begged for my autograph.
Boy, you kicked his ass! Man, that was great!
I had neither the heart nor energy to tell him the truth; that my engine of justice was fueled by sheer incompetence. As I drove home in misery, my instincts told me that somewhere in that fiasco I had learned something about trying cases, even though I couldn’t articulate it for many years.
Thus began my love/hate relationship with trials, the first of many experiences filled with anguish, honor, magic and misery. A vocation that constantly humbles and inspires—to anybody paying attention. The day I lose respect for the awesomeness of the experience is the day I hope I quit. In the meantime, it’s been my honor to serve my shift as a sentry on the ramparts of justice. As defense lawyers, we must forever heed the warding: The price of liberty is eternal vigilance. Amen.