Tyler Flood

A good trial lawyer is one who watches for and takes advantage of valuable opportunities. Trial lawyers are opportunists. Spotting the opportunity takes the skill of a hawk. Recognizing the exact moment to exploit the opportunity requires quick action. If you miss the moment, you lose your prey. The most successful trial lawyers are the ones who know the most and who are the most prepared. They put themselves in a position to crush their opponent by being prepared for that one opportunity. When it exposes itself, they swoop in for the kill.

These opportunities present themselves in and out of trial every day. While we need to pay close attention to them in trial, many times we can avoid trial and obtain favorable outcomes for our clients if we are on our game at all times. Consider the following examples from the different phases of the life of a case.

1.   Plea negotiation with the right person and the right judge. How many times have you felt like you were pounding your head against a brick wall over and over when you were trying to negotiate a reasonable plea bargain for a client? You knew the case was not a trial case, and you were practically begging for a normal, run-of-the-mill plea that any other prosecutor in the court would give you except for the one assigned to your case. It’s frustrating, and it feels unfair. It feels like you are being singled out. Then low and behold, on one court setting, that specific prosecutor is on vacation or is out sick and you get the deal you want, plea the case, and never look back. The timing was right, and you seized the opportunity. The same holds true for certain “obstacle” judges. Be patient and the opportunity will come at the right time.

2.   The State drops the ball. Have you ever been in trial and the state overlooked a crucial element they must prove? For example, in a DWI Consent Blood Draw case, Tex. Trans. Code 724.017 must be proved up for the blood result to be admissible. Many times, the states fails to provide actual proof of the blood drawer’s qualifications as well as the blood being drawn in a sanitary place. This type of evidence cannot be offered through a police officer over a valid hearsay objection or without the state proving up his qualifications to offer such an opinion (which I’ve never had them do). Yet, I see this happening in almost every trial I watch. There are real opportunities here to keep the blood out of evidence. You have to know the statute backwards and forwards, know the case law, wait for the state to drop the ball, and then you’ve got them. But keep quiet and wait for trial.

         When I see this happen, I keep my mouth shut, realizing that the state is not going to call any other witness to try to prove up the requirements of Section 724.017. They have not subpoenaed the blood drawer, either out of over-confidence, simply misunderstanding their burden, or because the blood drawer is no longer available.

         When argued correctly, this fumble by the state is that opportunity you were waiting for. Now . . . this is a two-step victory so don’t mess it up by excitedly and prematurely jumping out of your seat to object to the admissibility of the blood result right when the state passes the witness. Be patient. Wait. The opportunity presented itself, but the timing isn’t right yet. If the state releases the witness from the stand and he leaves the room, the timing is still not right. Wait, be patient. When the blood analyst is called to the stand next and the state starts asking background questions and starts going into the theory of Headspace Gas Chromatography . . . Wait, be patient. The timing is still not right.

         Now . . . after the state has just put the jury to sleep with talk about dual columns, retention time, and acetone peaks, they are finally ready to try to admit the almighty BAC lab report that could potentially destroy your case.

         NOW is the time to object. You have remained silent and maintained a good poker face up until this point. Ask the judge if you may approach, object to the admissibility of the lab report, and ask for a hearing about it outside the presence of the jury. If the judge questions if you are raising a motion to suppress and asks why you didn’t have a written motion on file, just cite Roberts v. State, 545 S.W.2d 157, 158 (Tex. Crim. App. 1977) (“The defendant’s counsel may either file a pretrial motion to suppress evidence or he may wait until the trial on the merits and object when the alleged unlawfully obtained evidence is offered”). The importance of the timing here is that you want to make sure (1) that the officer is long gone from the courthouse by now and can’t easily be called back to fill in any gaps in the state’s testimony, and (2) you certainly don’t want to give the state any time to call an additional witness at the last minute to fix their problems. You want to press the issue at that moment when you argue your objection and ask the Court to rule. If you had objected earlier on, right after you became aware of the opportunity, you would likely have lost because the timing wasn’t right. Being an effective trial lawyer requires a good poker face and lots of patience.

         A word of caution: Some judges, even in light of the strong authority in Roberts, will NOT allow you to raise ANY motions to suppress during trial unless they were filed in writing beforehand in accordance with CCP 28.01. Article 28.01 deals with deadlines for filing pretrial motions. It requires motions to suppress be filed seven days before an official 28.01 pretrial hearing set by the court. If not filed accordingly, the judge may exclude any motions to suppress after that date even if raised during trial. If there is never an official Article 28.01 hearing, the rule arguably doesn’t apply at all, though. Also, the judge still has discretion to allow a motion to suppress to be raised after the deadline for good cause. The takeaway is this: Pay attention to your pretrial settings; if none of them are official 28.01 hearings, then you are on solid ground for raising an oral motion during trial. If you practice in a jurisdiction that follows the code in this manner, file a written motion, but remember: You don’t have to give away the house. All Article 28.01 requires is a written motion. It does not dictate how specific it must be or how much of your argument you must disclose to opposing counsel. I suggest a generic motion citing that the evidence was illegally obtained under state and federal laws and constitutions.

4.   Trial with the right judge. Always, always, always go in advance of your trial day and ask around about who will be presiding over your trial. Then come back right before and ask again. You plan your case with the judge in mind. You should already be familiar with the judge’s tendencies on rulings and inclinations on potential punishment. This is the only way you can properly prepare and advise your client on the best course of action. Nothing can screw up your plan and your advice to your client more than walking into the courtroom on trial day and seeing a different face in that black robe. Sometimes you are delighted, but many times your stomach sinks and you are knocked off balance and scrambling to figure out a solution at the last minute. As defense attorneys, we are usually the last to know important information about what’s going on with our case. We must know more than the other side, and we should perform thorough “pretrial recon” to ensure we are not blindsided with a different judge on trial day. We must know this information ahead of time so that we may adjust our opportunity radar and avoid pitfalls that we may have fallen into otherwise. If not, we are unable to take advantage of opportunities, and our timing will be thrown off. It won’t be the right time, and we may lose out on opportunities we could have had.

5.   Expired blood vial presentation in trial. One good example of being patient, realizing the opportunity, and properly timing that opportunity can happen in DWI Blood Draw cases. This scenario occurs when the lab has gone through several analysts (due to them quitting or being fired), and then by the time they retest the blood to be used as evidence in trial, the blood vials have been expired for months. When this happens, we should always be aware of the issue. The state is typically not. For example, in one case we did not ask a single question on cross about whether the expiration of the vial would have caused a higher BAC. We knew the state’s lab witness would not give us a good answer. So be it. Don’t ask a question that you know (or should know) will give you a bad answer. All we had to do was make sure at least one photo was admitted into evidence that showed the vial expiration date. When the state offered the photos, we did not object and acted completely unconcerned. We did not want to draw any attention to the picture and let the state catch onto our impending closing argument. When the time came in closing, our argument went something like this:

“In opening, I asked that you please wait until the very end of this case, until now, to make up your mind. I told you that there would be something important I wanted to show you at the end that would change your mind. The blood vials used in this case had been expired for nine months before the lab tested them. How is that okay? That is like a person going to a doctor and the doctor telling you that you may have cancer and need to have part of your organs removed to stop it from spreading. They tell you that they will do a blood test, and based on the results of that blood test he will decide what surgery to perform. You find out that they took your blood in old or defective vials and then let the vials sit around for even a couple months longer before it was analyzed. Now he comes back and tells you that you should trust the blood result completely . . . from THOSE vials (point to the exhibit). How many of you are okay with that? Now in this case, the state is asking you to saddle John Smith with a criminal conviction for the rest of his life, based on the results from THOSE vials!”

        That two-word verdict was all about Opportunity and Timing!

6.   Other opportunity and timing tips for success:

a. Be conscientious about the timing of appearing in THAT jurisdiction. Know the practices of the court, know the staff, the prosecutor, and the judge before you start any proceedings. You won’t get many opportunities, and the timing won’t be right if the first time you see any of the faces in the court is day one of your trial. You probably don’t want to raise a novel issue in the wrong place at the wrong time with the wrong judge in the wrong jurisdiction. Make sure the timing works for you and your client. Also, with respect to plea bargains, sometimes you must wait, wait, and wait some more until the stars align and all the right people are in court one day. Timing is key!

b. Know when it’s time to stop talking. I’m constantly amazed at opposing counsel, colleagues, and even at my­self when we don’t know to keep our mouth shut—whether things are going our way or not. When more ar­gu­ment is just making things worse, or we have already won, and you can tell that the judge’s mind is made up—that’s the time to stop talking. Nothing more needs to come out of our mouth. Talking too much doesn’t always create more opportunities for yourself, and the timing of your additional arguments may just kill your chances.

c. Knowing when to argue and jump up and down about a state’s continuance. One last comment on timing and opportunity. Remember, we work in an adversarial arena. From time to time, however, we need favors from the state—and the state needs favors from us. When you have asked for a few continuances on a trial case and the state has asked for none, don’t jump up and down and scream and holler the first time the state comes to court on trial day and they have an officer out in training. You certainly don’t have to announce that you are “unopposed,” but now is not the time or the opportunity to try to take advantage of state witness problems. Oppose the motion on behalf of your client and let the judge decide. Sometimes the judge will surprise you and start grilling the state about their continuance, and it may end up going your way. Now, if you have always announced ready and the state continues to show up on trial day with excuse after excuse, that is the time to take advantage of an opportunity to try to have the state’s continuance denied. Too many lawyers argue and oppose things when the timing just isn’t right and there is no opportunity. Sun Tzu teaches us: “Even the finest sword plunged into salt-water will eventually rust. He will win who, prepared himself, waits to take the enemy unprepared.” You can rarely force a good opportunity into existence.

There have been numerous cases won during trial because the trial warrior announced ready and then seized that one opportunity at just the right time. This only comes through tremendous planning and preparation. 

There have also been numerous trial cases dismissed on or just before trial day because the lawyer’s timing was right on, and he took advantage of an opportunity that presented itself. Remember the teachings of Sun Tzu as they relate to our art and subduing opposing counsel: “Supreme excellence consists of breaking the enemy’s resistance without fighting.”

Fate whispers to the Warrior, you cannot withstand the Storm. The Warrior whispers back, I am the Storm!

—old Viking battle cry

When the trees move, the enemy is coming; when there are many blinds in the undergrowth, it is misdirection. Thus, what is of supreme importance in war is to attack the enemy’s strategy.

—Sun Tzu

Misdirection

What is misdirection? It is a form of deception in which the attention of a person is focused on one thing in order to distract his attention from another. When a magician holds a shiny coin up in the air in his right hand, telling you to look at this, while his left hand discretely reaches in his pocket to grab something, he is directing your attention away from what is really happening in an effort to trick you. And it works!

Attention can be controlled in various ways.

Misdirection has much to do with re-framing the audience’s perception, and perhaps very little to do with the senses. The minds of the audience members are distracted into thinking that an extraneous factor has much to do with the accomplishment of the feat, whereas it really doesn’t have any bearing on the effect at all. “The true skill of the magician is in the skill he exhibits in influencing the spectator’s mind.” (Dariel Fitzkee, Magic by Misdirection, pg. 33, copyright 1975).

Misdirection takes advantage of the limits of the human mind in order to give the wrong picture and memory. The magician uses this to manipulate the audience’s ideas, or, perceptions of sensory input, leading them to draw false conclusions.

Misdirection is also a chess master’s tool. The basic strategy of chess is to attack another player’s side and weaken their position, eventually taking several pieces. One way to do this is by luring an opponent into a trap and then take a key piece. It might be done by sacrificing a less important playing piece of one’s own in exchange for an opponent’s important piece. The idea is to use misdirection to possibly hide which piece will move in to capture the exposed piece.

Misdirection in trial is a form of deception in which the attention of a jury is focused on one thing in order to distract its attention from another. It is used to cause the jury to become so concerned about other disturbing facts that are unrelated to the elements that must be proved that they forget about the offense and are encouraged to convict because of the other, shiny coin facts that are not even relevant to the offense.

Granted, this is a trial strategy that can be incorporated by either side, but I see this being used frequently by the state. In their defense, most of the time it isn’t even intentional. The reason I say it’s not intentional is because sometimes all the extraneous drama and other facts that are not relevant to the actual elements are just too attractive and too tempting to avoid presenting. The state has trouble separating them from the elements they must prove. They cannot resist the urge to misdirect the jury by waving the shiny, irrelevant facts, around like a flag, like a magician trying to distract his audience from what is really important.

For the state, it can be a very effective way to draw jurors’ attention away from what must be proved and instead have the jury focus on other facts that just make your client very disliked. In a DWI case, for example, these misdirections can include bad driving facts that even non-intoxicated people commit all the time (like disregarding a red light, driving with no lights on, being asleep behind the wheel, being in an accident, weaving because of texting while driving, or making derogatory statements to the police).

It is your job as the trial lawyer to recognize attempts of misdirection and expose this type of trial tactic. You must begin exposing this misdirection in voir dire, talk about it in opening and then re-emphasize in closing that the state is trying to re-direct the jury’s attention away from what must be proven and towards some shiny coin that does not prove anything.

We must expose the misdirection.

We must draw a line of separation.

You must draw a line with physical gestures in your closing. Consider using a flip chart to distinguish for the jury between facts that prove the offense and irrelevant facts that were introduced in an effort to misdirect.

There are opportunities for the state to mislead and misdirect a jury in any type of criminal offense. Jurors do not like lawyers who try to trick them. If you expose these attempts of misdirection, the jury will turn on that lawyer in an instant. Jurors will be so offended at this attempted deceit that you will be in a position to win them over and greatly increase the chances for a favorable verdict for your client.

The only real lawyers are trial lawyers, and trial lawyers try cases to juries.

—Clarence Darrow

Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win.

—Sun Tzu

The key to victory in trial is to prepare and plan a winning strategy before trial, not after trial has begun. Keep these seven effective strategies for success in mind before your next battle.

1. Keep your opponent off balance

Pretend inferiority and encourage his arrogance. If you know the enemy and know yourself, you need not fear the results of a hundred battles.

—Sun Tzu

Get to know your opponent. Study your opponent and his moves before you ever sit across from him in battle. Ask others for information about him and about experiences they have had with him. Identify his strengths and weaknesses. Try to determine his level of honor and integrity. On the other hand, don’t ever let your opponent learn about you. Keep him in the dark about who you are and what your plan is. The more you talk, the more information you give your opponent about your plans and your personality, temperament, and preparedness. Don’t give your opponent a chance to figure you out. Keep him guessing. Appear mysterious, aloof, or even a bit crazy and unpredictable.

2. Start strong—have an opening strategy

I first heard from Robert Hirschhorn that you should never forego an opening statement. It should be a strategic storytelling event. If your opponent objects to you telling your story, stop . . . pause . . . say, “The evidence will show,” and go right back to where you were in your story. Don’t give away the whole movie in your trailer, give them just enough to pique their curiosity. Whet their appetite but stop short of showing them the whole enchilada.

3. Don’t capture just to capture

Taking pieces just to take pieces may not advance your strategy in chess. It might actually hurt you. You may be helping your opponent by taking easy pieces while he advances into a more strategic position earning more points. In trial, don’t object just to object. You should be trying enough cases to be able to begin to predict with some accuracy what objections will be sustained or overruled by what judges. A good rule of thumb is to only object when the question or answer will hurt your case. If it doesn’t hurt, why object? It only disrupts the trial, draws possibly unwanted attention from the jury, and if you are overruled, then you lose points. Another good reason to object selectively is because what goes around may come around. If your opposing counsel is leading a ton on direct or making lots of speaking objections (that don’t hurt you), then you will probably be given the same latitude from the Court when it’s your turn. Use it to your advantage.

4. Attack where weak

The opportunity to secure ourselves against defeat lies in our own hands, but the opportunity of defeating the enemy is provided by the enemy himself.

—Sun Tzu

In chess, if your opponent has a weak side, attack it. If he has an underdeveloped middle board, exploit it. In trial, attack the issues that are weakest for the State. Don’t use a shotgun approach by attacking everything in sight. Focus on the several good issues you have spotted that are weak for the State and only attack those. Use a focused approach to exploit the weak parts of the State’s case.

5. Keep the pressure applied

When you’ve got your opponent on the ropes, keep him there. If you have gained a powerful position, don’t let off the pressure. If the king or queen is being attacked from multiple directions, one wrong move lets him off the hook and reverses all your good work. With witnesses in trial, you must continually work to cut off all escape routes. Look for and anticipate all the outs your opponent may have. Keep the pressure on them so they can’t get away. Lock them down to their favorable testimony by repeating the testimony in the form of your next three questions.

6. Close it out strong—have a closing strategy

Even the best opening strategy and midgame attack is useless without a strong closing strategy. If you can’t close it out, you lose. You must not let all your good moves go to waste by not being able to pin the king! Your closing statement is your chance to shine and checkmate your opposing counsel. The object of closing is to take all the points you made in trial, bring them together, and deliver a powerful blow to the State by arguing that you have presented so much reasonable doubt that the only decision is Not Guilty. I’m a firm believer in gut feelings. I tell jurors in all my closings that if your first reaction, or your gut feeling, is that you have some reasonable doubt, then you are done and your decision is easy . . . Not Guilty. Tell jurors that if they start deliberations with a gut feeling that the case wasn’t proved, they are not to go searching for ways to explain away the reasonable doubt. I challenge them to stand strong in their beliefs to not let anybody change their mind—no matter what the foreperson thinks, no matter what time it is, no matter how uncomfortable deliberations become . . . Be strong and never let anybody change your mind for you if you feel there is reasonable doubt.

7. Consider offering a draw

He who knows when he can fight and when he cannot, will be victorious.

—Sun Tzu

Sometimes the best outcome, if you are losing, is a draw. Offer it and take it gladly. As a general rule, if you go to trial and your client is not convicted, then you won! In trial, if you feel things did not go your way and the jury is hung . . . ask for a mistrial. It may be a big victory under the circumstances. This is not a general, across-the-board rule, though. If you feel the jury is on your side and there is only a minority holding out . . . consider foregoing the draw. If you are confident the vote is in your favor, do not ask for a mistrial.

Remember, good things happen when you announce ready for trial. Be a trial lawyer. Go to trial.

When we are able to attack we must seem unable, when using our forces, we must seem inactive, when we are near we must appear far away, when we are far away we must make the opponent believe we are near. Humble words and increased preparations are signs that your opponent is about to advance. Violent language and driving forward as if to attack are signs that your opponent may retreat.

—Sun Tzu

Before Bobby Fischer became the World Champion Chess player in 1972 by beating Boris Spassky, Spassky was known as the Demon of Deception. He played some of the most exciting and surprising moves ever seen in chess. Many were designed to deceive his opponent and take advantages of opportunities that resulted from those deceptions.

The Sun Tzu book The Art of War teaches deception, prepa­ration, and skill on the battlefield. All warfare is based on deception, using surprise maneuvers and using your opponent’s psychological predispositions against him to gain tactical advantages.

In chess and martial arts, attack by deception is the attack of the master. We must surprise our opponent and catch them in the moment of his helplessness.

This applies to trial. If you are prepared and know your case inside and out there will be at least one moment, one point in the case, one opportunity you can seize and take advantage of to surprise your opponent. However, if you are unprepared, opportunities may present themselves without you even being aware of them and you will not be able to exploit them.

When the time comes for your attack you should “look as boldly aggressive as a beast of prey—without becoming reckless—in order to bring pressure at once upon the adversary’s morale.”

—Bruce Lee

Attack your opponent where he is unprepared and appear where you are not expected to attack.

If your opponent’s pleadings are open to attack, weigh the costs and benefits of bringing pretrial motions as opposed to using the deficiencies to your advantage in trial. Not all problems with your opponent’s pleadings require or deserve a “motion to fix” (otherwise known as a motion to quash). And you do not have to raise a motion to suppress by written pretrial motion. You can raise a motion to suppress at any time during trial before the objectionable evidence is admitted. Roberts v. State, 545 S.W.2d 157 (Tex. Crim. App. 1977).

Ponder and deliberate before you make a move. Sun Tzu teaches us:

He will win who knows when to fight and not to fight.

He will win who prepared himself and waits to take the enemy unprepared.

Trial is about opportunity. You must think about and plan for all possible outcomes, 99% of which will never occur. In all my trials in 17 years of practice I have yet to have one go exactly as expected. There is almost always something that happens that I wasn’t expecting (but hoping for)—and I was prepared for and ready to take advantage of the surprise opportunity. The successful trial lawyer is an opportunist. Be an opportunist.

There is no need to stick your chest out and talk loudly and make a public show of confidence unless you want to tip your opponent off that you are not prepared. This usually is a signal that you are desperately trying to obtain a dismissal so you don’t have to go to trial. This is what I see many lawyers do who are either (1) dealing with a weak defense case, or (2) scared to go to trial.

Being a trial lawyer is the only way to do this job correctly. The small number of lawyers setting their cases for trial that I see is embarrassing. I want to encourage all attorneys to go to trial more often and reap the rewards of taking advantage of opportunities that present themselves during trial. Opportunities that only present themselves when in trial. Opportunities that would never be realized if the attorney did not thoroughly prepare for trial, and opportunities that would never be seen if the lawyer pleads out a case when there is no risk in trying it.

Much success in trial comes from out-preparing your opponent and finding issues to use—and then waiting for the right opportunity and the right time to make use of those issues. Don’t spoil your chances by bragging or boasting beforehand about problems you have found with your opponent’s case. Telling your opponent about issues beforehand will cause you to lose the issues completely. The issues will be “fixed.”

What could be better than knowing your case inside and out and keeping quiet about it and luring your opponent into a false sense of confidence? You go to trial and then unleash your attack, taking your opponent by surprise.

To be successful in trial, why not prepare, prepare, prepare, then be quiet, appear unprepared, and wait for your day of triumph? Don’t telegraph your level of confidence in the case.

On that note, if you study people you can pick up on so many cues that tell you everything you need to know. For example, during a break in trial the other day I was about to move to suppress the HGN (motion granted), and I asked the officer in the hallway a question about it before we went back on the record. His answer was evasive as he paused, looked accusingly at me, and then stated, “I’m not supposed to be talking to you.”

I explained that it was fine for him to talk to the attorneys just not other witness, but then I said, “Thank you though, you just answered my question for me.”

He was weak and was trying to appear strong. If he was strong and had no problems with his HGN test, he would have responded differently I think.

The idea of being quiet and confident goes both ways, though. The prosecutors I am most concerned about, the ones who I worry the most about, are not the ones emailing me or calling me asking me if I am ready on a case. It’s the ones who I ask if they are ready and they simply give a one-word answer: “Yes.”

If they are bugging me, asking why we aren’t pleading and if I am really going to be ready for trial, then I know they are not wanting to go to trial on that case for some reason. You can learn a lot by paying attention to people’s actions.

So be prepared but don’t advertise it. If the State is definitely going to try your case, then informing your opponent of all the work you have done in preparing for the trial and letting them know that you are very ready and very prepared will cause them to work harder and be even more prepared to fight you. If you know for sure it is a trial case, then consider following the ancient lessons learned from warfare and from the game of chess. Act weak and unprepared and you can catch your opponent off guard. Feign weakness and your chances of success increase. This doesn’t necessarily apply to cases that you know are very weak for the state. In this situation you want them to see and hear how prepared you are so that you can increase your chances of a dismissal or a reduction.

Now go out there and fight with a winning strategy in place. Set your cases for trial and announce “Ready” on trial day!

Fate whispers to the warrior, you cannot withstand the storm,
the warrior whispers back, I am the storm!”