Abraham Lincoln famously said, “You can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time.”
Lincoln’s quote applies to the voting public as well as trials before a judge or jury.
Former President Trump appears to be trying to win his legal cases with political arguments. He cares little about judges, but is determined to win an election, in order to pardon himself or have another Republican pardon him if he doesn’t run. Trump is leading in the polls, so this should be easy for him to do.
I learned how to do this from a chicken.
Years ago, I represented one defendant of four that were accused of stealing trade secrets that were provided to the lead defendant who allegedly included them in a patent for software designed for huge construction projects.
The plaintiff was a self-taught computer programmer. He was represented by a prominent New York patent firm.
The lead defendant was represented by a large Chicago law firm, which had contracted for the entire floor of an NYC hotel for the two month trial. The four trade secret defendants were represented by separate individual lawyers. I was one of them. The case was tried before a jury in the federal court in Manhattan.
I liked my client. I believed in his innocence after watching how he lived. Over the two years of depositions and trial prep, I became convinced of his innocence.
He had gotten a scholarship to college as an athlete. He struck me as a fellow who played hard, but he played by the rules. He was remarkably oblivious to how personal impressions shape jury decisions, perhaps because he was so straightforward.
The large Chicago firm gave the opening statement for the defendants that ran for a day and a half. They kept open every possible defense available and there wasn’t a defense that they didn’t like. One juror went to sleep but the lawyers seemed too busy to notice.
The other four defendants, the trade secrets defendants, each argued in their openings for at least two to three hours each, except for me.
As I watched those opening statements, I abruptly changed my strategy given the jury’s reaction to the openings.
I told the jury my opening statement would be no more than 15 minutes and whenever this trial ended, my closing summary would be no longer than 15 minutes and they would find that my client was not guilty.
I told them a little about my client and his little company, and then I sat down easily within the 15 minutes I had slotted for myself.
Every day of the trial, all the lawyers for the defendants went to lunch in Chinatown, which was right behind the Federal Court in Manhattan. The restaurant we went to had two attractions: 1) the dancing chicken, and 2) the chicken that would play tic-tac-toe against you.
You put the coins into the slot, and out would come the chicken. It would stare at you until you made your first move, tapping on the tic-tac-toe board that was on the glass that separated you from the chicken. An “X” would appear. The chicken would then make its counter move, pecking its choice of position, where an “O” would appear.
Even though all of the defense lawyers went to eat at this Chinese restaurant, none of them played this game because, I’m convinced, they didn’t want to dim their genius by losing to a chicken. That is certainly why I didn’t play against the chicken.
This was a serious chicken. The chicken was really good. It was so good that years later when the chicken died it got an obit in the New York Times. It was all a con job, but everyone was captivated by it. The chicken was given a signal where to pack in order to get fed, and thus peck the correct box.
As the trial progressed, I grew more worried that this case was so complicated that nobody understood it. Worse, now there were at least three jurors who were dozing off.
I became convinced that the defendants would not be considered individually. I feared that they would be lumped together with the patent defendent, and the smaller trade secret defendants would be found guilty as well, including my client.
When it became my client’s turn to testify, he came to town and, before he took the stand, we went to the Chinese restaurant. However, on the way to the men’s room, when I wasn’t looking, my client challenged the chicken.
The lawyers stopped eating and watched my client as he lost to the chicken about an hour before he was going to testify. After he lost to the chicken, everyone was remarkably quiet and nobody seemed to be eager to talk to me.
In a funny way, the loss to the chicken confirmed for me my client’s integrity and it fit quite nicely into my new strategy.
When I put him on the stand, I abandoned my prepared outline and changed gears. I kept it short, simple and direct. I flat out asked him whether he had stolen anything that became part of this purloined patent. He was surprised that I had changed our planned testimony. He replied instinctively without reservation and answered no.
I then announced that was the only question I was going to ask and then I sat down. The plaintiff never cross-examined him because he was small potatoes, and there wasn’t much testimony to cross examine.
Thereafter, I also changed gears and cross-examined the plantiff’s patent expert witnesses about the trade secrets case, which they knew nothing about. They cared only about the patent, not about the claim of trade secrets theft.
I asked each expert witness the same question: “After the years that you have put into preparation for your testimony, did you find any evidence that convinced you of my client’s guilt?” In each case, they shook their heads and answered no.
The other lawyers thought I was crazy and looked down at their papers in an effort to avoid laughter.
I added insult to injury by dramatically turning to the court reporter and saying that I wanted a copy of the answer to my question and, in each case, the court reporter nodded and I would get a couple of pages of transcript the next day.
After almost two months of trial, we went to closing, and again all the defendants gave days of closing arguments. When it came to me, I put my watch on the lectern and I looked at the jury and said, “Remember my promise of almost two months ago? I am going to give you a closing that will not exceed 15 minutes.” Then I quoted from the transcript pages that I had requested from the court reporter, the answer from each expert witness that stated they had found no evidence relating to my client.
Back then, during breaks, everybody could smoke cigarettes in the hallway. I got to know the plaintiff because he smoked a pipe and I smoked cigarettes, so we shared matches and talked.
He saw what I was doing and actually appreciated it. He would always start off after we inhaled and then, with a smile, would laugh and say, “smoke and mirrors.”
All the other lawyers waited three days for the verdict. I had to catch the train back home because I had a small trial starting the next day. After three days, the jury came down hard against all of them, but acquitted my client.
A day later I got a faxed letter from the plaintiff. He had won big, but he still sent me a letter with a smiley face and “smoke and mirrors — congratulations.”
So much of the time, appearances are more powerful and persuasive than the facts. We will see if Trump “fools the people” in the end.