Tunnel Vision, Textbook Arguments, and Isolation

I have a confession: I had no idea that Chunk Palmer was attending law school, did you? If there was any doubt, it certainly cleared up this week because he represented his first client. All by himself. As a “student defender.” Without an actual law license. Or a bar card. In federal court. Fighting charges involving copyright infringement and selling counterfeit merchandise. Dang. Nothing like whetting your teeth on a federal criminal trial.

To be fair, Chunk, the “witness whisperer” on the CBS drama “Bull,” is apparently participating in a law school clinic where he is (allegedly) being supervised by a professor and a licensed attorney, yet viewers never see these supervisors or get even the tiniest hint that either is providing any oversight whatsoever. But hey, Chunk says the “city thinks he’s good enough” to represent a criminal client—and he’s certainly confident—so what’s the worst that can happen? (How about this: a 10-year prison sentence for your client.)

In “Forfeiture,” a 20-year-old kid named Darius works in his grandfather’s barbershop. Grandpa is having some financial problems, so Darius decides to help him out by selling some goods on the side from the shop’s backroom. He knows the merchandise is fake and his customers know it’s fake. The FBI raids the shop, confiscates the merchandise, arrests Darius, and issues Grandpa a notice of forfeiture, claiming the shop is an instrument of crime. We have a two-fer this week! Chunk swoops in to represent Darius in the criminal courts while Bull and Benny save the day by representing Grandpa in the civil courts.

In typical “Bull” fashion, both cases are fast-tracked to a jury trial, and conveniently begin on the exact same day. The trial gods are certainly friendly to Bull, et al.

A Winnable Defense?

Although Chunk and Benny technically represent individual clients who are fighting vastly different legal battles, the clients are related, their stories are uniquely intertwined, and the outcome of one might easily impact the outcome of the other. Most likely, the outcome of Darius’s trial could have a significant impact on that of Grandpa. Why? If Darius is convicted of selling fake goods out of the barbershop, it’s a lot harder to prove that the shop wasn’t an instrument of crime. Everyone loses.

Danny decides to help out Chunk, the rookie lawyer, and spends a little quality time in the evidence locker inspecting the contraband. The fakes are darned good ones, but she discovers old evidence tags in some of the bags. Hmmm … why would an evidence tag dated 2017 be inside a purse that was just confiscated in 2019? (Insert the “Law & Order” bum-bum-bum sound here.) Turns out the neighborhood guy who finally convinced Darius to start selling his wares was an undercover agent who was getting the product from the FBI’s very own evidence locker.

Benny Takes Chunk to the Woodshed

Danny shares this little nugget with the entire TAC team, who is gathered in the war room to prepare for the next day’s proceedings. Chunk almost explodes with excitement because he’s finally found a winnable defense in an otherwise loser case: entrapment. But Benny and Dr. Bull have something to say about it. In fact, they have a lot to say about it. It’s their belief that an entrapment defense carries an enormous amount of risk not only for Chunk’s young client, but for theirs, too. Bull makes it quite clear that Chunk should not go there. And Chunk agrees.

The next morning, Chunk goes there anyway. Suffice it to say, Benny is livid.

The scene that follows is perhaps my favorite from any “Bull” episode to date (at least the few I’ve seen). It goes something like this:

Chunk: “… That’s textbook entrapment. How am I supposed to ignore that?”
Benny: “You just do it! You pay attention to the people who know more than you, who are trying to help you! Nobody’s talking about textbooks. This is a courtroom, not a classroom. … You’re arrogant and ignorant, and that is a deadly combination, my friend.”
Chunk: “I’m not arrogant. I’m confident, because I’m in the right and that’s always the best defense.”
Benny: “… This isn’t Sunday school. Being in the right doesn’t mean squat. Getting the jury to see that you’re in the right—that’s the game we’re playing. And if you don’t understand, that proves to me that you’re not ready to play with the adults.”

Now that’s what I call woodshedding. And Benny is absolutely right. Here’s why:

1. Having the law on your side does not guarantee a victory in the jury box.

Parties and counsel often disregard the danger of allegations simply because they do not think the law supports the claim. How many times have you heard (or said), “Oh, that doesn’t matter because there’s no evidence; it’s just his opinion.” Or, “Plaintiff may claim that, but it’s not true so we shouldn’t spend the money on an expert to refute it.”

Just because a claim is unsubstantiated or fails as a matter of law does not make it an irrelevant or meaningless claim in the eyes of the jury. Appellate cases are won on matters of the law. Jury trials are won by persuasion.

2. Don’t isolate yourself from hearing what other people think.

Too much isolation breeds unhealthy thinking, even in the context of law.

We work in an industry where the target is always moving, and the hands on the clock seem to be in perpetual fast-forward mode. The ability to juggle multiple things at once is a requirement for survival, and sometimes, the easiest way to function is to put our heads down, shut out the “noise,” and just get it done. But there’s a big difference between solitude and isolation.

When preparing for a critical hearing, thinking through legal strategy, or even brainstorming trial themes, isolation can be a detriment. Like Chunk, when we convince ourselves that our way is the best (or only) way, we tend to go all-in and weigh every decision from that point forward based on our own perception. Which could easily have a fatal flaw that we’re just too blind to see.

Whether you’re a newbie or a seasoned litigator, knock on the doors of a few trusted peers. Not the ones who will kowtow and tell you what they think you want to hear, but the ones who will boldly tell you that you’re full of crap and need to consider something else. More than likely, you’ll hear support for some of your ideas, and be challenged on others. Which is a good thing. (This is one of the core reasons focus groups and mock trials are so incredibly useful.)

Welcome those who challenge your thinking. Don’t let isolation rob you of the opportunity to grow and, not incidentally, increase your odds of a successful outcome.

3. It’s all about persuasion.

Mock jury research and posttrial interviews reveal time and again that cases are won or lost not because jurors are influenced by a statutory legal requirement they’ve never heard of. Rather, it’s because jurors perceive one side to be “better” than the other. I wrote a whole series on this very topic, in fact.

How “better” is defined is up to each individual juror, but inside the courtroom? Everything matters. Facts. Organization. Demeanor. The ability to convey a story. Likable witnesses. Command of the evidence. The list goes on. But the one common denominator is perception.

The facts are what they are and there’s not a dang thing you can do about that. But how you portray those facts and how people perceive those facts is a whole ‘nother ballgame.

Chunk made a rookie mistake and got caught up in his own echo chamber of rightness. It could have cost him the case and his client’s freedom, but because Chunk and his “Bull” buddies live in an alternate universe, his choice to ignore the sage advice of those with infinitely more experience had a Hollywood happily-ever-after ending.

For those of us in the real world, I doubt Chunk’s approach would have paid off so well.

My best advice to trial lawyers is to avoid staying in your own echo chamber for too long. The path to victory is rarely a solitary one. It takes a village.

This article was originally published by Texas Lawyer on February 28, 2019. Reprinted with permission. © 2019 ALM Media Properties, LLC. All rights reserved.