Doug Murphy

Doug Murphy is a partner with Trichter & Murphy, P.C., based in Houston, Texas. Doug is a nationally recognized legal seminar lecturer and author of numerous published legal articles. Doug is a Regent with the National College for DUI Defense. He is a co-chair of the DWI program with the Texas Criminal Defense Lawyers Association (TCDLA), in addition to serving his second term on the Board of Directors. Doug is board certified in DUI/DWI Defense by the National College for DUI Defense, and is also board certified in criminal law by the Texas Board of Legal Specialization. Doug has been recognized as a Texas Super Lawyer Rising Star by Texas Monthly magazine every year since the recognition began in 2004, and as a Texas Super Lawyer in 2009. Doug was also recognized as a Top Lawyer for the People for being one of the best DWI lawyers in Texas by H-Texas magazine. Frequently sought after as a news commentator on DWI and other criminal law issues, Doug was referred to as the “Drinking Driver’s Best Friend” by the Houston Press.

Tell Me a Story: 60 Minutes-Style Opening Statement – By Doug Murphy

After the jury is selected, trial lawyers must began telling their client’s story in opening statement. During voir dire, lawyers ask prospective jurors questions to see which jurors will be the most and least receptive to our trial theme and our client’s story. Those questions also help plant the seeds of our trial theme and client’s story early on. A University of Chicago study concluded that 80% of jurors decide a case after opening statements.

Legendary trial lawyer Gerry Spence believes you win your case in voir dire and opening statement. My experience leads me to the same conclusion. One of the main challenges we face as lawyers is jurors rushing to judgment faster than some police officers who arrest our clients. Despite understanding how quickly jurors make up their minds with their first impression, many lawyers dedicate the least amount of trial preparation towards constructing a persuasive opening statement, and instead focus more on cross-examination and closing argument. Most of us have been guilty of this practice too.

Good lawyers know that there is no unimportant phase of a bench or jury trial. In terms of jurors and/or judges forming early opinions, voir dire and opening statements are the best op­por­tunity to jump out of the gate with the jury on your side before jurors hear any evidence. Legendary trial lawyer Michael Tigar once joked that the lawyer’s job is to talk, and the jurors job is to listen—and the key is to make sure that the jurors do not finish listening before the lawyer stops talking. This illustrates the point that lawyers need to quickly score points so that the jurors will be receptive to our side of the story and see the evidence from our perspective, or our vantage point. As the old saying goes, there are two sides to every pancake.

Trial lawyers and television news producers and television reporters share a similar dilemma—our audiences have short attention spans, and we have limited time to get information across. All the great trial lawyers know how to tell a story. Trial lawyers can learn a lot from television news producers when it comes to telling a story. The pioneer of how modern television news reporting is credited to the late Don Hewitt, the creator in 1968 of the most popular television show in history: 60 Minutes.

The format of 60 Minutes is three investigative stories of no more than 15 minutes each (the rest of the time allotment is for commercials and Andy Rooney’s musings), which copied the similar approach of magazine journalism. Don Hewitt had a simple four-word mandate: “Tell me a story!” Mr. Hewitt did not want his journalists citing and reporting facts as if they were competing in a debate; he wanted to hear a story about how people’s lives were affected by the facts they were reporting. This deceptively simple motto sometimes becomes an incredibly difficult task in breaking down a complicated legal and factual scenario into a story that can be easily understood by either a jury, or a television audience, in a short period of time.

Television reporters utilize many of the same concepts in storytelling that we do as trial lawyers to captivate our audience.

Theme

The first step in telling the story is developing the theme of the trial. There is an old maxim that if you allow your client to be the one on trial, your client is going to lose. Use of a persuasive theme in opening statement can re-frame the issue and take the focus off your client and damaging evidence the jury will later see and hear. Having a power statement to identify your theme is helpful so that when the jurors finally see and hear the evidence, they will give less or no weight to that evidence due to your theme in your opening statement because of the unfairness, improper administration, medical history, injury, etc. The theme can help empower the jury to see the evidence in the correct light and make the right decision. It is true that a sense of injustice drives people, but empowerment gives them the will to bring justice to your client. The theme helps also provide the jury with understanding, thus empowering jurors to want to help your client. If the DWI case involves an accident, your power statement could simply be that “this is an accident case, not a DWI case.” The theme needs to be simple to be understood. It needs to be short, just like a “sound bite” a reporter leads with to begin a news story.

In terms of trial preparation and creating the trial theme, I prefer to begin my trial preparation backwards. I start first with preparing my closing arguments I intend to make based upon the evidence. My theme is based on these arguments. I then prepare my cross-examination with the intent of repetitiously weaving my theme throughout my questions. My opening statement comprises the power statement, theory, and client’s story to enable the jury to assemble the pieces of the puzzle they receive from our vantage point.

Let the Jury Know How Much You
Care About Your Client in Your Delivery

The courtroom is the theater where a trial lawyer performs. The manner in which a lawyer delivers his/her opening statement will affect the jurors’ attitudes toward the information to be conveyed. Jurors will rarely, if ever, be impressed with how smart a lawyer is, but jurors can be, and often are, impressed with how much a lawyer cares. The classic gesture of just putting your hands on your client’s shoulders during trial is not enough. It has to be real, not staged. I once heard a funny cigar-chomping cowboy named Kinky Friedman say: “Money can buy you a fine dog, but only love will make its tail wag.”

If a lawyer does not care for his client and demonstrate it to a jury, how can he/she expect the jury to care about the client? Jurors can see right through lawyers who are not genuine. Credibility and confidence are key factors in your delivery. Do not try to imitate another lawyer you respect and admire. Be your­self. Be professional. One of the best ways to be a persuasive lawyer is to not talk like a lawyer. Speak from your heart, not your lawyer brain. Speak with confidence, use good eye contact and pauses when speaking with—not to—the jury. Cicero taught that what reaches the mind also moves the heart. Use passion, reason, and commonsense logic. Communicate your passion and logic in words the jury will understand. Above all, humanize your client by referring to him/her by first name and last name throughout the trial (not “my client”), and tell their story so that they know your client as someone they can relate to.

A powerful and persuasive opening statement does not just provide a road map for the jury before they see and hear the evidence; your opening also sets up your closing argument. In this regard, consider using rhetorical questions. “Is that fair?” you ask after describing the scene where the officer had your client perform roadside gymnastics, or describe the drill sergeant-like manner the officer treated your client. “Is that how we would want our loved one to be treated?” Rhetorical questions suggest the answer and your arguments without you having to make them. They also plant the seed of unfairness—i.e., reasonable doubt. Above all, you might be surprised by the head nods, or even verbal responses, you might receive from jurors. Posing rhetorical questions to jurors is equally persuasive in closing arguments as well. They are also fun in cross-examination too.

Make Concessions

There are going to be unfavorable facts in every trial case. If there were no unfavorable facts, our clients would not need us. Do not run or hide from ugly facts. Embrace them up front. It is imperative that you disclose and concede certain unfavorable facts. The jury is going to hear about them anyway, so they might as well hear about them from you. If the prosecutor already dis­closed the facts, use those facts in your client’s story so that they are neutralized or mitigated, or at least presented from a different point of view. By disclosing them and mitigating them, you draw the sting and minimize the pain they cause to your case. You also gain credibility in the eyes of the jury. You cannot win every battle in a trial, but by conceding certain things or facts and focusing on other things and facts, you can put yourself in a credible position to win the war.

Things to Avoid in an Opening Statement

Never overstate, embellish, or exaggerate any fact or statement you make in your opening statement. Doing so will undermine your credibility and do irreparable damage. The trial could be over for you before it even begins. Your relationship with the jury is the same as your personal relationships—trust and credibility that are lost can never be regained. You will be deemed untrustworthy by jurors, and your arguments will be summarily rejected, even if they are meritorious arguments. A jury will not buy into your client’s story unless they trust you.

Never respond and answer the prosecution’s opening statement. Present your story, and let the jury understand the other side of the pancake.

Do not promise something that you cannot, or will not, deliver. Jurors will hold you accountable and responsible for most everything you say. One important exception is in telling your client’s background in opening. Do not tell the jury your client will testify and you will hear this and I will prove it to you—unless you intend to do just that. The client’s background needs to be introduced or prefaced with other facts you refer to in your opening statement, even if you don’t know whether your client will testify. Jurors are mostly forgiving of defense counsel who does not bring in evidence to prove the client’s background so long they are continually reminded that the State always has burden of proof. Understand the risk of presenting good information about your client in your opening without presenting evidence during trial and proceed with caution, or at the very least tactfully present the client’s background information. Choose your words carefully.

Never assume a burden of proof you do not have. Let the focus be on what the State has to prove.

Never tell jurors that what you say is not evidence. A lawyer who prefaces his opening statement with such a statement totally undermines the effectiveness of a good opening statement and shoots him/herself in the foot. Such a statement is also a waste of time and breath. Also, do not waste time talking about trial procedure. Leave that for the prosecutor and judge. If the prosecutor wants to bore the jury with talking about how a trial takes place, let it be. Focus on your client’s story, not the state’s allegations against your client. Focus on your theme: The officer rushed to judgment, or failed to thoroughly investigate, etc. If you allow the state to frame the issue and put your client on trial, you will likely lose. Having a theme with a story to back the theme will help the jury focus on the unfairness of how your client was treated, or whatever theme you determine. You want the jurors to view the evidence from your client’s perspective, not the state’s or the arresting officer’s perspective.

Avoid personal attacks on the prosecutor, police officers, and opposing witnesses. You can attack their arguments all day long without attacking them personally. Jurors will more easily believe an officer is mistaken than the officer is a liar. Even when I feel the evidence proves an officer is lying, I try to avoid calling the officer a liar because not all jurors may agree. You can infer the officer is lying by simply saying: “I know where I grew up we had a name for people like that, and I’m quite sure you do too.”

Primacy and Recency

Psychology and human experience tell us that a listener tends to remember the first and last words the listener hears. Jurors are no different. Jurors will tend to remember what is said to them first and last. Have a plan. What is it that you want the jurors to talk about in the jury room? Choose the first and last thing you want them to hear and communicate it to them in understandable terms. If you want them to focus on reasonable doubt, consider some of these approaches:

As I talked about at the beginning of this trial, the burden of proof is on the government to prove each and every element of the crime that is charged beyond a reasonable doubt. What is reasonable doubt? I expect the judge to tell you that it means what it sounds like: a doubt for which you can give a reason. As this list of reasons for doubt will show, the State has failed to meet their burden (then use a visual aid to list “reasons for doubt”).

Ladies and Gentlemen, I have tried my share of cases over the years, but I still can’t get over the butterflies I feel when I stand before a jury and am charged with speaking to you about the fate of Mr. Smith. I fear that some jurors might decide this case on how much they dislike drunk drivers rather than making sure that the State has presented enough evidence in this case to prove Mr. Smith is guilty beyond a reasonable doubt.

This is not a contest, there are no winners and losers. Surely the State of Texas comes out a winner when one of its citizens avoids a wrongful conviction. The officer told you that it’s not going to have an impact on his job if Mr. Smith is found not guilty. He told you that he arrested Mr. Smith on suspicion of driving under the influence. And that’s OK. The night of January 25th was the time to act on suspicion, today is the time to serve justice. The prosecutor will call in the next case for trial, she is going to go on doing her job, and Mr. Smith? Well, he’s been through quite a bit with being arrested and put on trial—he can go on with the rest of his life as you can go on with yours.

If you’re in the jury room and are having a hard time deciding this case, don’t fight it! You have already reached a conclusion. It is okay to say at that point, “my mind is unsatisfied.” That is the doubt of the law, and I expect the judge will instruct you that under those circumstances, it would be your duty to acquit the defendant and find him not guilty.

Use of Trilogies

Literature and history have taught us that there is a dramatic benefit to communicating in sets of three. Roger Dodd and Larry Pozner devote an entire chapter to “trilogies” in their Cross-Examination: Science and Techniques book that no trial lawyer should be without. Trilogy is a technique of finesse, not force. The power of trilogy stems from its content. Its form makes it memorable, and it is therefore a more likely topic of conversation in the jury room. Here are a few examples:

He walked normally, talked normally, and stood normally on the videotape.

Without a check for calibration with each test, this machine is inaccurate, unreliable, and unscientific.

I expect the judge to tell you that reasonable doubt may come from the evidence, a lack of evidence, or a conflict in the evidence. (Then consider using a chart where you can list facts in each category.)

If your minds are wavering, unsettled, or unsatisfied, then that is the doubt of the law, and in that event you should acquit the defendant.

You must start strong with your sound bite or power statement. You must also finish strong, tying your story back to your power statement and theme. Research by marketing experts determined that repetition sells cigarettes. Repetition—by way of using trilogies—also helps persuade a jury.

Visual Aids

We have become an increasingly visual society. A lawyer who takes the time to develop effective visual aids when it is time to advocate for his client will be light years ahead of his opponent. We form our opinions about the world around us based upon our senses. The more senses we can reach in closing argument, the better our chances are that our point will get across.

Some lawyers have attempted to re-create in the courtroom the experience of being stopped by the police and asked to perform field sobriety tests. The limits on re-creating any scene in a courtroom environment are limited only by the imagination (and, of course, the trial judge). We have found that creating reusable exhibits helps not only in communicating our point to the jurors, but also in helping us develop and organize our closing. When you are freed from your notepad and your preparation is centered around the use of exhibits, you are free to express more emotion, and to feel more confident that you will say everything that needs to be said.

Conclusion

The above ideas and suggestions successfully persuade jurors every week in courtrooms throughout America. These ideas also help captivate television audiences each and every day. It is my hope that these approaches will inspire criminal defense lawyers to apply their creative abilities as much to opening statement as they apply to other areas of a criminal trial. As trial lawyers, we must personally work on new and different ways of persuading a jury of finding reasonable doubt in our cases.

Credits: Special thanks and credit go to Mike Hawkins of Atlanta, Georgia, for his assistance and sharing his examples of primacy and recency, plus his use of trilogies and visual aids. Mike “Hawk” Hawkins is a gifted and persuasive storytelling trial lawyer. A regent with the National College for DUI Defense, Mike has been Board Certified by NCDD since 2001. He is certified to operate the Intoxilyzer 5000, and is a frequent lecturer on DUI issues in Georgia and across the country. He is AV-rated by Martindale Hubbell and has been named to the Best Lawyers in America, named a Georgia “Super Lawyer” in DUI Defense by his peers, and is one of “Georgia’s Best Lawyers,” named by the Atlanta Journal-Constitution. Hawkins presently serves as Vice-Chair of NACDL’s DUI Committee. Although “Hawk” roots for the Alabama Crimson Tide every weekend in the fall, deep down “Hawk” wants to be a Texan, as he is usually found barbecuing for his friends and family on those weekends.

Doug Murphy is a partner with Trichter & Murphy, P.C., based in Houston, Texas. Doug is a nationally recognized legal seminar lecturer and author of numerous published legal articles. Doug is a Regent with the National College for DUI Defense. He is a co-chair of the DWI program with the Texas Criminal Defense Lawyers Association (TCDLA), in addition to serving his second term on the Board of Directors. Doug is board certified in DUI/DWI Defense by the National College for DUI Defense, and is also board certified in criminal law by the Texas Board of Legal Specialization. Doug has been recognized as a Texas Super Lawyer Rising Star by Texas Monthly magazine every year since the recognition began in 2004, and as a Texas Super Lawyer in 2009. Doug was also recognized as a Top Lawyer for the People for being one of the best DWI lawyers in Texas by H-Texas magazine. Frequently sought after as a news commentator on DWI and other criminal law issues, Doug was referred to as the “Drinking Driver’s Best Friend” by the Houston Press.

Confrontation & Blood Tests: A Bull is Coming

“No refusal” weekends are spreading throughout Texas like a wild prairie fire. In several Texas cities, “no refusal” weekends will be conducted every weekend for the next three years due to grant money. In light of these “no refusal” weekends (and the five mandatory blood draw scenarios that do not require a warrant), there will be an even greater demand and backlog on Texas crime laboratories analyzing the blood specimens obtained in these cases. This demand and backlog will create problems as to who the State presents at trial to testify about the blood test analysis. A Bull[is]coming to answer the question of whether criminal defense lawyers are entitled to confront at trial the actual analyst who conducted the testing on the blood specimens, or any other specimen analyzed in any criminal case.

On March 2, 2011, the Supreme Court will hear oral arguments in a case styled Donald Bullcoming v. New Mexico, No. 09-10876 (below: 2010-NMSC-007, Docket No. 31,186 (NM Sup. Ct., Feb. 12, 2010))(set for argument on Tuesday, February 22, 2011). At issue is whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a non-testifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.

Bullcoming was prosecuted for DWI in the State of New Mexico. During trial, the state introduced a forensic report asserting that gas chromatograph testing had determined his blood alcohol level to have been 0.21. The State did not present live testimony from the lab analyst who conducted the blood test and wrote the report. Instead, the State presented the laboratory supervisor, a “surrogate witness,” who did not witness the testing. The State did not show that the analyst was unavailable to testify, and Bullcoming never had a prior opportunity to cross-examine the analyst. Bullcoming objected on the basis that it violated his right to confront the actual witness who performed the analysis. Bullcoming was convicted and he appealed.

While Bullcoming’s appeal was pending in the New Mexico Supreme Court, the U.S. Supreme Court held in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), that authors of forensic reports are “witnesses” under the Sixth Amendment and “are therefore subject to confrontation.” Id. at 2531–32, 2537. The New Mexico Supreme Court nonetheless rejected Bullcoming’s Confrontation Clause claim and affirmed his conviction. The U.S. Supreme Court granted certiorari.

Bullcoming’s counsel, Jeffrey Fisher of Stanford Law School Supreme Court Litigation Clinic, filed an outstanding brief. It is a must-read. A brief summary of his argument is that allowing a surrogate witness to take the stand in the place of the analyst violates the Confrontation Clause’s bar against surrogate testimony and denies an accused a meaningful opportunity to cross-examine the surrogate about the non-testifying witness’s testimonial statements. A surrogate witness who lacks personal knowledge regarding whether the analyst skipped or botched important steps in the forensic process stymies all of these inquiries. In Bullcoming, the surrogate witness conceded that “you don’t know unless you actually observe the analysis that someone else conducts, whether they followed the protocol in every instance.” A surrogate may not know anything about the analyst who wrote the report. Even if he does, the surrogate would likely be unable to speak from personal knowledge about the analyst’s training, skill, or attention to detail—or to demonstrate the analyst’s professionalism or knowledge of laboratory procedures. And the jury would be unable to observe the analyst in order to gauge those attributes for itself.

The Bullcoming case illustrates the importance of having live testimony from the analyst who wrote the report in order to probe his credibility. During the trial, the surrogate witness admitted on cross-examination that the actual analyst did not testify because the State had “very recently put [him] on unpaid leave.” These statements of the surrogate describe past events and human actions, not machine-generated data. What is more, these statements constituted powerful evidence against Bullcoming. Among the leading reasons for forensic errors are contamination of samples, switching samples, and running the wrong kinds of tests. The assertions of the surrogate witness that none of these things occurred here thus provided fodder for potentially important cross-examination. Yet because the State put a surrogate witness on the stand, the witness’ testimonial assertions were insulated from adversarial testing. This violated the Confrontation Clause under any reasonable interpretation of the provision.

Jeff Fisher summed up the confrontation problem presented in Bullcoming with a terrific analogy: “Just as substitute counsel cannot satisfy the Sixth Amendment, neither can confrontation of a substitute witness.”

The National Association of Criminal Defense Lawyers and the National College for DUI Defense joined together and filed an Amicus Curiae Brief in support of the right to confront the actual analyst. The Amicus Curiae Brief was written by Leonard Stamm of Greenbelt, Maryland; Justin McShane of Harrisburg, Pennsylvania; and Ronald Moore of Irvine, California. These lawyers did an outstanding job of simplifying the complicated methodology of gas chromatography. The Amicus Curiae Brief is also a must-read.

If the Supreme Court’s recent confrontation decisions in Crawford v. Washington, 541 U.S. 36 (2004), Davis v. Washington, 547 U.S. 813 (2006), Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), and Briscoe v. Virginia, 130 S. Ct. 1316 (2010), are any indication, the right to confront the actual analyst who performed the blood analysis should prevail. Melendez-Diaz was decided by a 5–4 vote, with Justice Scalia leading the way. Justice Scalia suggested during oral argument in Briscoe v. Virginia that the only reason certiorari was granted in that case was due to an attempt to undermine the right to confront the ac­tual analyst created in Melendez-Diaz. There is no reason to doubt that certiorari was granted in Bullcoming for any other rea­son. The justices leading the charge against confrontation will try once again with the two new justices on the Supreme Court. The outcome in Bullcoming will affect any criminal case where forensic chemical tests are conducted. Stay tuned, and re­mem­ber to wear all white and a red sash on March 2, 2011: We want to make sure that our clients do not get gored a second time.

Doug Murphy is a partner with Trichter & Murphy, P.C., based in Houston, Texas. Doug is a nationally recognized legal seminar lecturer and author of numerous published legal articles. Doug is a Regent with the National College for DUI Defense. He is a co-chair of the DWI program with the Texas Criminal Defense Lawyers Association (TCDLA), in addition to serving his second term on the Board of Directors. Doug is board certified in DUI/DWI Defense by the National College for DUI Defense, and is also board certified in criminal law by the Texas Board of Legal Specialization. Doug has been recognized as a Texas Super Lawyer Rising Star by Texas Monthly magazine every year since the recognition began in 2004, and as a Texas Super Lawyer in 2009. Doug was also recognized as a Top Lawyer for the People for being one of the best DWI lawyers in Texas by H-Texas magazine. Frequently sought after as a news commentator on DWI and other criminal law issues, Doug was referred to as the “Drinking Driver’s Best Friend” by the Houston Press.