You can't make a Mentos geyser without the Mentos

It was Book Fair night at my daughters' school last night and the guest of honor was a scientist at a local science attraction for kids. The girls wanted me to go so I dashed home early to do the final prep work on supper (steak and beef enchiladas with beans and rice) so I could meet them at the school in time for the show.

I got there and my girls led me out to the courtyard where the scientist and her husband were getting set up. Of course, having just gotten there without having tried to set up earlier in the day they couldn't get their projector to work - whether is was because the outlets were turned off, the extension cord was bad or the projector just didn't work, we don't know. It was a sign of thing to come.

Once the search for a working outlet ended (unsuccessfully), the parents and kids gathered in the little amphitheater as the scientist began her spiel. Behind her on a table were five soda bottles. There was but one thing this could mean -- the Mentos explosion!

First she told us about polymers because that's apparently what she worked on in a previous life. Then we talked about all the horrific ingredients in soda. As much as I like Dr Pepper, I'm not so certain I can ever drink another one again. At least I know what's in my homemade beer and there aren't any chemicals that can eat right through a metal can.

Next she talked briefly about the Mentos. She told us that there's a conference every year in which scientists gather together to discuss just why in the hell Mentos and Diet Coke create the crazy cascades of bubbles they do. The conclusion is that nobody has the slightest idea why.

Now it was time for the main event. My oldest daughter manned the Diet Coke bottle with her best friend (at least for this week) next to her at the Diet Pepsi bottle. The anticipation was building. The tension was so thick you could cut it with a knife.

"Um, does anyone have any Mentos? We forgot to bring them," the scientist said.

Excuse me? You're coming to the school to do one freaking experiment and you forgot the main ingredient? Is there not a checklist at the science place that lists Mentos as one of the things you need to pack in your bag? My wife eventually found some Mentos in the teachers' lounge - but I missed the explosion because I had to get back home to put everything in the oven so that dinner would be ready by the time everyone got home.

Please take this as a cautionary tale not to take for granted your shiny gadgets are going to work properly at trial or that the equipment in the courtroom is going to cooperate. If you can make the trip ahead of time, check out the courtroom before you have to show up for trial. And always, always, always bring along a backup just in case the electronic gremlins decide to take the courtroom hostage on trial day.

Oh, and here's a Mentos meltdown for your enjoyment...

Anyone interested in testifying?

All I can say is "Thank God for New York." Texas may be known as the Killing Fields for the number of inmates we murder year in and year out, but at least defendants in Texas courts don't get screwed the way those facing trial in New York do when it comes to jury instructions.

Sure, juries down here want to hear your client testify just as much as they do up in New York. I once had a juror tell me she kept on waiting for us to put on some evidence but, because we didn't, she felt she had no choice but to convict. I just shook my head and stuck my fingers in my ears to keep the blood from spilling out.

At least when our client takes the stand to testify we don't get the instruction they use up in Scott Greenfield's neck of the woods.

Ironically, if a defendant does testify, the prosecution then gets an instruction about his interest. 

Interest/Lack of InterestYou may consider whether a witness has any interest in the outcome of the case, or instead, whether the witness has no such interest. 

[Note: Add if appropriate:
A defendant who testifies is a person who has an interest in the outcome of the case.] 

In other words, it's up to the jury to decide whether every other witness has an interest in the outcome of the case. The jury is instructed that the defendant, on the other hand, alone, is an interested witness.  The defendant, alone, has a motive to lie.  The jury s told that defendant, alone, is the only witness whose testimony is inherently biased. 

Down in the Lone Star State that would be a comment from the bench about the weight of the evidence - and that's a big no-no. Well, that is if the comment would be beneficial to the defense.

Sounds like you're damned if you do and you're damned if you don't up there.

The decision to put your client on the stand is one of the most difficult decisions we have to make. Sometimes it can be the difference between a one- and a two-word verdict. But, if it goes wrong there is almost no way to fix the damage.

You can prepare a client all you want but you can't make them pay attention to what the other witnesses are saying and you can't prevent them from falling into the prosecutor's trap.

I once had a client who insisted on testifying. He had been charged with driving while intoxicated. He told the officer he had had seven or eight beers over the course of the evening. That, of course, was enough for Deputy Fife to slap the cuffs on him and take him downtown.

One Sunday morning I had a friend of mine come to the office so we could let my client get a taste of cross-examination. My friend lobbed the softballs for the defense. I was going to throw the nasty stuff as the prosecutor.

Somewhere between "have you ever drank to the point that you were intoxicated before?" and "would you drink seven or eight beers and then go pick your daughter up from school?" he decided that taking the stand wasn't the best idea in the world.

He just wanted to tell his side of the story - like most defendants new to the drill do. What he didn't realize is that you don't get to tell your side of the story in isolation. Once you take the stand you have to deal with the prosecutor who knows the trap questions to ask.

So why does the court insist on such a prejudicial instruction should the defendant take the stand? The arresting officer has an incentive to lie. He can feel free to exaggerate all he wants because he knows what's on that video and what's not. He can tell the jury the defendant exhibited all six clues on the HGN test because no one can see his eyes. He can tell the jury the defendant reeked of alcohol or that his eyes were glassy. There's no one to contradict it. Was he speeding? Did he change lanes without signalling his intention to turn? Was he weaving? Hell, we don't know. But there's the officer testifying to the dangerous way in which your client was driving.

Nope. He doesn't have a motive to lie. But there are times you can catch him in a lie. They don't come often, but they are sweet. And, once the jury realizes the officer was lying, there's no stopping that runaway train.

Reciprocal discovery would only harm defendants

Wouldn't it be great to have a laundry list of items that the state is required to produce prior to trial?

No more drafting discovery motions to get any recorded statements made by your client or anyone else the state intends to call at trial. No more drafting discovery motions to get a listing of any prior convictions for your client. No more drafting discovery motions to obtain search warrants, affidavits and returns. No more drafting discovery motions to obtain a list of expert witnesses the state intends to call. No more drafting discovery motions to get your hands on those experts' reports.

Sounds pretty damn good, doesn't it?

That is if you don't mind giving the prosecutor any written statements you client made, any information you have about his criminal record, a list of evidence you plan to introduce at trial, the names of your expert witnesses and any written reports they may have produced.

Reciprocal discovery only sounds like a good idea to the civil attorneys who are trying to find a way to replace their income after tort reform and attorneys who are too damn lazy to do any work on a case outside of standing alongside their client as they accept the state's latest offer.

The proposed legislation makes a mockery out of the 5th Amendment's protection against self-incrimination, emasculates the presumption of innocence and lowers the state's burden of proof.

Taking a stroll down by the stream of consciousness

So here I sit at my wife's computer in her study because I'm tired of going back to the office every night. I'm working on my opening statement for tomorrow morning. After being gone for over 12 hours today, the last thing I wanted to do was drive back to the office after I put my girls to sleep. So I did my research on my phone while sitting at the dinner table after cleaning the dishes.

It's amazing to me that my little smartphone has more computing power than the first Apple IIe my dad bought 26 years ago -- and for a fraction of the price. My phone doubles as my calendar and scanner. I can look up any provision in the Texas Penal Code, the Transportation Code or the Code of Criminal Procedure in an instant. Need some quick legal research? There's always Google Scholar in my bookmarks.

It hurts my brain to think about how attorneys practiced law before computers. I can't imagine having to have type every motion or pleading -- even those you used in most cases (the "throwdowns" as we say). Of course, as Brian Tannebaum and Scott Greenfield are wont to point out -- it's not the technology that makes the lawyer. A good lawyer still has to know what the hell he's doing in the first place. If you don't understand the 4th Amendment then it doesn't matter how many toys you have...

It's all in how you use it. Why did that guy buy a Porsche and then proceed to drive the speed limit down Memorial Drive? If you're going to drive it like that, you should've saved your money and bought a Malibu or a Focus.

At the end of voir dire this afternoon I had a lady in the panel ask me why I kept referring to the prosecutor as the "gummint lawyer." It was all I could do to keep a straight face. I mean, I can't reveal all my secrets, can I? I eventually explained to the lady that it was because she was a lawyer for the government.

I love what I do. The challenge of finding any escape from a hopeless case appeals to me. But it carries a heavy burden. We like to sit down and tell war stories over a few cold ones - the more outrageous, the better. It seems like a game at times. But then you suddenly realize that the client sitting next to you at the defense table is a real person and the consequences of a conviction are very real. It's sobering to look into your client's eyes and see the fear of what might happen.

And no little gadget can make that feeling go away.

Now it's time to get back to work. My client's depending on me.

The playlist for trial prep

It's time for some serious trial prep.  I'm in a jazz mood today so here's what I'm listening to as I put together my trial notebook and materials:



Dave Brubeck



Charlie Hunter



Medeski, Martin & Wood



Weather Report



John Scofield

Enjoy.

Living 30 seconds at a time

I was up in Huntsville this past weekend for my annual 50k trek through the state park with a band of other equally crazy people who thought running through the woods all day was a good idea.

The weather forecast was far from ideal with afternoon highs expected to top out in the mid- to upper-70's (not the best of scenarios for distance running). It wasn't all that bad in the end, though.

I ran the race (for the second year) with my colleague Rand Mintzer. Since he was recovering from an injury he was planning on running 30 second splits (run 30 seconds, walk 30 seconds, repeat). Given the weather forecast, it ended up working like a charm.

That's not to say it was a walk in the park, however. After 26 miles on course I was worn out. It became a mental game. How can I convince my legs to keep moving when I'm tired and hot?

I suspect most folks rarely, if ever, reach a point they have to push themselves past their physical or mental limits.  And that's a shame - because it's when you've reached that point that you find out just what you are capable of doing. It's when you reach that point that you have to decide how badly you want to go further. It's at that point that you are the most alive.

Over the last 2+ miles Saturday, my world consisted of the two or three feet in front of me and the next 30 seconds. I don't remember the last time I felt so alive as I did for those 30-40 minutes.

Is trial prep a dirty job?

I once caught an interview with Mike Rowe and he was being asked what he thought made Dirty Jobs such a big hit. Now first I must admit that I love the show. Back when my youngest was having trouble going to sleep at night I used to rock her while I watched the tube -- and one of the shows I watched was Dirty Jobs.


It would have been so easy for Mr. Rowe to mock the people who worked jobs that nobody else wants to do -- but he never made the workers the butt of the jokes. Quite the contrary, Mike Rowe was always the punchline. He treated everyone who came on that show with respect and dignity.

Mr. Rowe's answer to the question was quite profound. He said that most of us (me included) have jobs that we can't tell at the end of the day whether we've accomplished anything. My desk, for instance, is as big a mess when I walk out of the office as it is when I walk in the next day. I see a bunch of paper, letters and files on my desk and it doesn't make any difference how much paperwork I do in the afternoon - or at night - because there's always more to do. Mr. Rowe said what made the jobs he featured on the show so compelling was that each job had a starting point and an ending point. As an example he talked about a ditch digger. At the beginning of the day there was no ditch - but by the end of the day, there was a ditch.



My "dirty job" is mowing the lawn. When I wheel the mower out to the driveway and pull the cord I can see how tall (and ragged) the grass is. But as I walk across the yard I can see where I've mowed and where I haven't. The contrast is a constant reminder that I am accomplishing something. There is almost a Zen-like quality to pushing the mower as my mind keeps being drawn back to the contrast between the cut and uncut grass.

Brother, can you spare a question or two?

I see and get last minute requests for voir dire questions and questions for cross examination of technical supervisors and other experts on a fairly regular basis. The problem is, I can't provide any. I don't know the details of your case. I don't know the issues involved. I don't know what defenses are going to be raised. I don't know the theme of your case. I haven't seen the documents produced by the State in response to your discovery requests.

I'm shocked that some folks out there think there's a magic bullet just waiting to be fired and that you can obtain it at the last minute. Every case is different. The fact patterns are different. The witnesses are different. Test results are different. The issues are different.

Now there are some universal themes you can use during a voir dire. You can, and should, question the panel regarding their attitudes toward the presumption of innocence and the burden of proof. If a police officer is going to testify as a fact witness I think you should question the panel about whether they would lend more credence to the testimony of an officer simply because he is a police officer. Beyond that, the questions asked during voir dire should be determined by the facts of the case and the story you want to tell.

Yes, that requires work. It requires you to sit down and review your case and construct an overall theme and figure out how each piece of the puzzle fits and what pieces aren't necessary. If you've worked your case up properly then you've lived and breathed it for weeks, if not months, leading up to trial. It's your baby. Get in there and change that diaper and feed it and cuddle with it and rock it to sleep.

The same approach should be taken to cross examining the state's expert. While there are certain questions I would ask the technical supervisor in any case, other questions arise based on the particular facts of my case, the documents I have in my notebook and the theme of the case. My cross examination in a low breath test case will be quite different from my cross in a high breath test case. Some questions will be generated by my review of the maintenance records and test records from the state's breath test machine. Others will be generated by my familiarity and prior interactions with the witness.

There are no shortcuts to trial prep. There is no magical book of questions from which to draw. So, while I am more than happy to make suggestions and let someone bounce ideas off me, please don't expect me to do your job for you.

Making a molehill out of a mountain

I was watching Everest: Beyond the Limit on Discovery Channel the other night and was struck by the complexity of organizing an expedition to the top of the world. The expedition leader must account for the weather, the health of the climbers and what everyone else on the mountain is doing. Make a wrong call and you can end up with a tragedy.

• For a harrowing account of the deadliest day on the mountain, check out John Krakauer's book Into Thin Air.

Guides must decide what time to leave camp each morning (more like middle of the night) in order to avoid unstable conditions in the day light and to stay out of traffic jams on the upper slopes. Some leaders impose rigid time limits on climbers on "summit day" in order to conserve bottled oxygen. The organizers must also decide who gets to pursue their dream and who goes home without seeing the summit. Send up a climber suffering from illness or injury and you could wind up with two or more dead climbers.

On one day this past May, over 100 climbers assaulted Everest's summit on the busiest day ever on top of the mountain. One error here, one misstep there and one miscalculation in base camp and the day could have turned out tragic. Fortunately for all involved, the day was a success.

Trial work is also about handling the details, managing those around you and coping with the things you can't control. Do it properly and the most unmanageable matter becomes manageable. Do it wrong and the consequences can be no less catastrophic for your client.

Eight hours of Zen in the woods

A view of Lake Raven (Huntsville, Texas) before dawn on 12/5/09.

On Saturday I spent an amazing eight hours running 33 miles (should have been 31 miles, more on that later) through Huntsville State Park (an hour or so north of Houston).

Up until last year Sunmart sponsored the Texas Trail Endurance Runs (50 miles/50K) but this year Sunmart ran into a little legal problem and dropped their sponsorship of the race. There was concern that the popular trail run was finished but thanks to Roger Soler, the trail run lives on.

By complete coincidence I met a fellow Houston attorney as I braved the freezing cold and climbed out of my car. He was running the race with a running buddy of his and asked if I'd like to run with them. Why not?

Everything went well on the first 7 mile loop. We got back to the start/finish line and ditched some of our gear and headed out on the first of two 12-mile loops through the trails. What we didn't know at the time was that the course had been changed - we would be running on the same trail the 50-miler was run on. The run was great, the weather was fantastic and the company couldn't be beat.

We crossed the start/finish line in about 4 hours and 20 minutes as we headed back out for our final loop. After 19 miles we were tired and our legs were getting heavy. I've always found that one of the hardest things to do was convince myself to go back out there for the final lap. But off we went.

Everything went swimmingly until we got to the aid station by the dam. Even though we had already been through there earlier the three of us managed to take a turn to the left when we should've turned to the right. We all had a weird feeling as we headed out to the back of the park. Something didn't feel right but we weren't sure what happened. Finally we stopped and assessed the situation and realized we were off course. We had no idea how we got off course or how far we had gone off course. It was time to backtrack.

And so back we went until we found the bridge and the trail markers. We still don't know how we managed to miss them -- but we were back on course. The upside of it was we covered an extra two miles. On we went and about 90 minutes later we crossed the finish line three abreast.

I've written about it before, but the beauty of trail running is living in the moment. You can't take your mind off the task at hand because of the roots, holes and other hazards on the course. My run partners and I spent eight hours on Saturday living in the present -- and there is no better way to live.

While you can't forget your missteps in prior trials, you can't let them ruin your trial prep. Every trial is its own beast and instead of dwelling on past mistakes, learn from them.

As our run shows, it's easy to get off track in the trails and in trial preparation. Sometimes you just need to step back and look at the overall picture to determine whether you're still on course. If you're not, stop and backtrack. If you look carefully enough you'll find the correct path.