I’ve been doing this for a while, first as arresting officer testifying on the stand, and later as an expert witness for the courts. I’ve attended (some say “infiltrated”) more than my share of CLE (Continuing Legal Education) credit courses for practicing attorneys. I lost count of the exact number of cases a long time ago.
Most of my cases as an expert witness have involved someone who fired in self defense. I’ve seen lives fought for and won, lives bargained for and lost, and a few times, vice versa.
What I’m here to share with you today is for the next time someone who sold his soul to the bottom line of his law firm’s profit/loss sheet is talking to you in a situation where your credibility, your career, your future, your very life could hang in the balance. You’re familiar with the phrase, “What you heard is not what I said”? And you remember the character in Alice in Wonderland who said, “A word means what I mean it to say”?
OK, then. Let’s begin the translations.
What they say: “Like you, I need a life of my own. You’ve hired me professionally as your lawyer. I don’t give anyone my home number. If you need to reach me, here’s the 24-hour number at the law firm.”
What they mean: “I don’t want to be bothered by you. I don’t personally give a damn whether you go to prison or the poorhouse, or not.”
Let me tell you right now, any attorney who won’t give you his home number isn’t sufficiently committed to your case to be your attorney. He’s telling you, “I don’t want to be bothered,” and I don’t know about you, but I’m not about to trust my life and future to someone who “doesn’t want to be bothered.”
An attorney who’s good at the kind of litigation we’re talking about here eats it, breathes it and sleeps it. If you did things right, you brought him the kind of case such lawyers should dream about: the innocent, wrongfully accused person.
If he’s been bothered at home at night by so many losers who keep whining at him that he can’t stand it, I can accept why he doesn’t give out his home number or at least cell phone number isn’t sufficiently anymore…but understand that he’s telling you or me that he considers us to be whining losers, and he’s just given us a preview of where he thinks the case is going. And that’s just where it is going, if the guy at the helm of the defense thinks so little of you.
What they say: “I will reduce this heinous murder case to manslaughter and allow the defendant to plead to a sentence that will work out to, oh, seven years hard time.”
What they mean: “Oh, God, I’ll never find twelve honest people who wouldn’t have shot the scumbag themselves in the same situation as the defendant. Maybe if I can scare Hell out of him, he’ll buckle and plead to a ‘slaughter. That way, it goes on my record as a conviction I won, and I’ll look good!”
I have lost count of the prosecutors in cases where I stood for the defense who buckled just before trial and dropped the charges, saying at the press conference something like, “We thought he was guilty, but we didn’t think the jury would convict him.”
Hey, excuse me, kids, but I’ve been to prosecutors’ school, and we were taught there, “If you don’t think you have enough to convince the jury, you probably don’t have enough to bring the case.”
Cases like this will usually involve some element of political correctness. An armed citizen who shot someone in a town where the main newspaper and its puppet politicians are anti-gun and feel the need of a scapegoat…a cop who shot somebody while the Rodney King trial was going on…a situation in which the slain perpetrator was either very young, or female, or insane, or for some other reason “not responsible for what they did.”
What they say: “Citizens can’t be taking the law into their own hands! If we don’t make an example of this person, we’re saying that vigilante justice holds sway!”
What they mean: “Hell, I would have shot the dirtbag in question myself, but he and his friends had political connections, and if I don’t prosecute this case, I might not still be prosecutor after the next election!”
You fall into this trap with particular ease if you chased a fleeing felon who then turned on you and offered you lethal violence, necessitating your response with deadly force. Never mind that the law allows any citizen to make a citizen’s arrest, something the prosecutor knows as well as you if not better. Never mind that when the fleeing felon lawlessly turned upon you and attempted to take your life, you were absolutely justified in blowing him away in self defense, which the prosecutor also knows. This argument makes you appear to have been spoiling for a fight, and gives him a hook on which to hang the hat of his case if his political manipulators tell him to go after you.
What they say: “Never mind whether what you did was right or wrong. I’m going to tell the world that you’re a scumbag unfit for decent people to associate with. You’ll never make a living in this town again, when I’m done, and your spouse and children and parents won’t be able to hold their heads up in public. Of course, if you let me ‘wet my beak’ and give me, oh, a hundred thousand dollars or so, I’ll just go away and not make your life a living hell after all.”
What they mean: “Hey, I know what I just threatened you with should constitute felony extortion that would send me to prison for a year or more. However, I’m exempt, because you see, I’m a plaintiff’s lawyer and what you and the rest of the civilized world would call a felony extortion attempt, I and my people call ‘our first settlement conference.’ ”
Yes, as a matter of fact, a good deal of “plaintiff’s law practice” is nothing less than “legalized extortion.”
How do you deal with that? I’ve found it remarkably simple.
What would I do on the street if someone came up to me with his hand in his pocket and sent the clear message, “Give me your money or I’ll kill you?” Been there, done that. The next time, like the last time, I expect I would draw my licensed weapon, point it at him, clarify the situation to him appropriately, and await his next move. If he fled, I would of course let him live. If he tried to shoot me, I have been trained to neutralize him with countervailing lethal force.
So far, they’ve always fled, and nobody got hurt, but everybody learned some lessons.
What would I do in court if someone came up to me and said, “Give me your money or I’ll lie about you and publicly humiliate you?” Been there, done that. Instead of the gun, I’ve always drawn a large caliber attorney and levelled it at the opposition, stating something to the effect that, “You can start a pissing contest if you want. You know or should know that in a pissing contest, everybody gets wet. I’m prepared to get wet, but I’ll dry off. You, however, will be drowned. Go ahead; the next move is yours.”
It’s worked so far. I haven’t even got wet yet. And in every such case in which I’ve been involved, everyone has learned some lessons.
What we’re saying here is, don’t back down when you’re falsely accused. Hire the best lawyer you can, get in the accuser’s face, and tell ‘em where it’s at. Make it clear that you’re ready to fight and that you expect to be vindicated.
Opposing counsel now realizes he didn’t have the easy walk-over he expected. In fact, if he knows his client and has actually analyzed the whole case, he probably realizes he doesn’t have a leg to stand on. Quite apart from meekly surrendering to his “nuisance suit,” you’re going to make him actually put on his case, which will cost him and his law firm a whole lot of money, especially if they’ve taken the case on contingency.* Their bluff has been called.
Sometimes, the calling of the bluff is enough to make them fold their tents. Sometimes, though, they’ve already thrown away enough money and billable hours starting the case that they’ll take it to completion, like a throw of the dice against the odds at Vegas, hoping against hope that they’ll get a favorable jury and win. In that case, you have to finish the fight.
With that in mind, make sure at the beginning that you’re in a jurisdiction where when a defendant is civilly sued and wins, he or she can recover legal fees from the plaintiff…and make sure the plaintiff and his or her lawyer know that this is indeed the way it is. This can create, shall we say, a certain deterrent effect.
What they say: “Oh, heck, just settle the case for a penny on the dollar. It’s cheaper than trial.”
What they mean: “I know the US Codes better than you do. The moment I, the plaintiff’s lawyer, prevail, the law/caselaw says that I can charge all my enormous legal fees to the defendant who was stupid enough to settle…heh,heh,heh.”
Check it out, kids. Unless it is expressly worked out otherwise in the settlement agreement, your giving even a token one dollar to the other side indicates that their side won, and the plaintiff’s lawyers can come after you with a fat, inflated bill for his legal fees. Some million-dollar fee judgments have been given out in this sort of thing.
The only cases I’m personally familiar with where this happened were those in which police departments were being sued, but I’m not at all certain that this caselaw couldn’t be applied in a person against person lawsuit as well if the opposing lawyer was sufficiently creative and adamant. I’m not a lawyer and I don’t give legal advice, so put this high on your list of things to check out with your own attorney when things get so bad that it looks like it’s going to court.
What they say: “Don’t worry, kid, they can’t prove a thing! You won’t even have to take the witness stand!”
What they mean: “Every other client I ever had was either guilty as hell or unbelievably stupid or both, and if I put him on the stand he would have either hung himself or perjured himself. Never mind that I never defended an innocent person before; you’ll be the first, so I’ll fight for you harder!”
I would estimate that some 97% of those accused of crimes are guilty, either as charged or of a lesser included offense. In anything but the criminal justice system, getting anything 97% right would be an “A” if not an “A+.” Unfortunately, 3% wrongfully accused people, multiplied by the volume the criminal justice machine processes in America, equals a terrible portion of injustice.
This fact also means that most of the time, the lawyer representing you has little if any experience defending innocent, wrongfully accused people. However, he has a lot of experience doing damage control for guilty scumbags. Professionals go with their experience.
If you let a “guilty man’s lawyer” talk you into accepting a “guilty man’s defense strategy,” my experience is that you’re going to get a “guilty man’s verdict.”
When you fired in self defense, Fate painted you into a corner that is called “the affirmative defense.” The affirmative defense says in essence, “I did the deed that led to my being here today, but I was justified in so doing.”
I’ve discussed the affirmative defense principle in these pages in the past, briefly. I’m probably overdue to discuss it here in depth, and if you’re interested, let the Editor know, and we’ll do it. But, for now, the bottom line of the affirmative defense concept is that, at law, it is a perfect defense, but it generally shifts the burden of proof to the defendant.. This means that, for all practical intents and purposes, you’ll have to take the witness stand to tell your side of it.
Almost any defense attorney experienced in the defense of justifiable homicides will back me up on this. Which means that any attorney who says to you, “Shut up, dude, the State can’t prove a thing” doesn’t have a clue as to how to defend you and, without necessarily meaning to, has probably already sold you down the river with a strategy that won’t work for an innocent person who fired in self defense.
I’ve seen cases where the defendant couldn’t be put on the stand even though the killing was justifiable. The defendant was illiterate and would have been putty in the hands of the silver-tongued prosecutor, or didn’t even know the language, or was likely to have a stroke or heart attack if questioned aggressively by a professional. But, most of the time, it’s going to be your testimony as to why you had to shoot that makes you or breaks you, and when an attorney tells you he doesn’t want you to take the stand and can’t give you a good reason why, your BS alert should go off.
There are a whole lot more lawyers in America than cops. Some of them are the finest human beings on this earth…and some of them make Count Dracula seem as benevolent as the Blood Bank.
After you fire your gun in self defense, it’s inevitable that criminal lawyers will determine whether or not you are to be accused of a criminal offense…and it’s almost as certain that some shyster with a bandage on his nose from when the last ambulance he was chasing stopped too fast will convince someone known to the deceased to file a wrongful death lawsuit against you.
I’ve lost count of the number of people who told me that, after having had to kill a criminal, the agony of court was far greater than the pain of the near-death experience or having been forced to kill another human being.
Whether the arena is The Street or The Court, forewarned is forearmed.
*Contingency: An arrangement in which the plaintiff’s lawyer agrees to sue you without charging the plaintiff anything, but with an agreement that the lawyer will take a large share of the winnings if the case goes their way, and taking expenses off the top. Many lawyers will have in the fine print that the plaintiff must pay up front for costs like filing fees, expert witnesses, depositions, etc.
I’ve been doing this for a while, first as arresting officer testifying on the…
by Tactical-Life.com / Dec 23, 2009