SPEAKER_02 0:00

Welcome to Beat the Prosecution, presented by Northern Virginia Criminal Defense and DUI lawyer Jonathan Capz. We're here to regularly present you information and ideas for beating your prosecution as best as possible. Now for your host, John Katz.

SPEAKER_00 0:16

Hello, everybody. This is John Katz of Beat the Prosecution. I'm a criminal defense and DUI defense lawyer in Fairfax, Northern Virginia. I have hit the jackpot. I really have. Our teacher today, our speaker. Our guest is Larry Posner. All of our guests are great. I am beyond giddy to have Larry here. You're going to find out why. He is a cross-examination wizard. He is a Mensch, a great guy. He is so generous of his time. He's a great lawyer. One of my, I don't want uh to have happened what happened to John Lennon after he said that uh uh something that then caused him to be uh harmed. So I'll just say that one of my previous guests, when I told him Larry would be on, just uh would was extolling him uh to no end, just like I do as well. Without further ado, Larry Posner, please introduce yourself to everyone.

SPEAKER_01 1:13

I don't know if I can live up to that. I'm just Larry Posner. I'm a criminal defense lawyer. That's that's all I I set out to be.

SPEAKER_00 1:21

I don't buy it.

SPEAKER_01 1:23

Uh I did get dragged into commercial litigation, uh, but uh criminal defense is my love.

SPEAKER_00 1:30

Well, I know that. Uh when did you start doing criminal defense? Why did you do it? And uh were you one of the uh line of great um uh what do they call them, education directors at the uh Colorado or Denver Public Defender's Office?

SPEAKER_01 1:48

Well, I uh began my career in 1973 as a public defender in Colorado. And uh I did two years in the Colorado Springs office, two years in the Denver office, and uh when I left, I was the training coordinator for the public defender system. Uh then I went into uh private practice and uh since about 1974, I I taught college at night, and then uh I I graduated from teaching undergraduates to teaching law school, uh, and then I moved on from teaching law school to teaching lawyers, but I've been teaching in some form since 1974, and now I tour uh the United States, Canada, uh, recently came back from a series of lectures in New Zealand uh teaching cross-examination.

SPEAKER_00 2:47

Please correct me if I'm wrong. My understanding is this there's this amazing lineage of uh training directors at the Colorado Public Defenders. So, first of all, I want to know: were you the training director for the whole state for the public defender system? Was Steve Wrench a predecessor? Was there a lineage of you, Sunwolf, Lisa Wayne? Do I have that right somehow?

SPEAKER_01 3:08

It was Steve Wrench before me, and he was the one who really taught me, and then I became the training coordinator for the state. And then uh after I left, I'm not sure what the uh what the lineup was, but it you you know, the Colorado Public Defender is a gigantic office. It has always stressed training, and it has marvelous uh people. Uh, and uh I think it makes a big difference in the careers of young lawyers.

SPEAKER_00 3:35

Okay, so have I already uh heard the answer? What made you decide to do criminal defense?

SPEAKER_01 3:41

I knew I wanted to be a criminal defense lawyer since 13. There was never a question in my mind that made law school very easy. Didn't make the grades easy, but I didn't care much about the grades. What it what made it easy was I know why I'm here. I I have to get a law degree because they won't let me be a criminal defense lawyer unless I graduate law school.

SPEAKER_00 4:03

So, what made you decide to become a criminal defense lawyer at 13?

SPEAKER_01 4:07

I just think it was for me, it was obvious. Uh I think uh growing up in a Jewish home, one uh understands oppression. Uh one understands what uh bullies uh are like, uh especially governmental bullies. And uh I just thought it was the right side to be on.

SPEAKER_00 4:30

So the the dictators and human rights violators were a big reason why I chose criminal defense. And uh there was, I'll call her Mrs. Smith. Her last name was something else. When I was in fifth grade, Mrs. Smith pulled me over in the hallway in uh public school and said, Why were you playing at the garden apartments last week across the street? And I said, Well, what makes you say that I was doing that? And she said, Well, we had a report of a uh brown-haired uh boy, I had dark brown hair at the time and a blue jacket playing over there. So I said, You just described half the boys in the school, Mrs. Smith. She was she she was silenced, and and and that uh that that was the way I had to go.

SPEAKER_01 5:13

Well, I think uh a big influence on me with the civil was the civil rights movement. Uh you saw the price these people were paying just to eat at a lunch counter, just to to drink at a drinking fountain, just to be able to check into a hotel, to ride a bus. Uh and you saw the oppression on the nightly news. Uh and so uh one witnessing this battle for civil rights, for human dignity, could not help but be impressed and think if that's what you do with your life and fight for human dignity, that's that's a worthwhile thing. You know, that's that's something you could be proud of.

SPEAKER_00 5:57

Well, that's right. And you know, so I know my answer to the following one, Larry. Uh uh, I would imagine that you don't refuse to represent the uh the alleged and actual bullies and the bigots and the racists and the anti-Semites. And if you don't create a barrier there, then how do you uh justify representing them when you say you're trying to fight oppression?

SPEAKER_01 6:18

Yeah, and that's uh that's an issue that's worthy of discussion for me. Um it's it's pretty simple. It's uh it's why the ACLU uh supported the rights of American Nazis to march in Skokie, which cost them funding for decades. But you can't you can't draw a line. You can't say who's uh covered by the Bill of Rights and who is uncovered by the Bill of Rights. Uh so uh I you know I I represent I represent the package of rights that my constitution told me should belong to everybody. You know, I I look at the system and say, don't don't blame me for this. Why are you questioning me? You you gave me a constitution and said obey it, and now I'm saying back to you, okay, I'm obeying it. Why are you not obeying it? So you know, you you represent all comers um pretty much. Uh in you know, there's there's some challenges, but uh you know, everybody is it's more than everybody deserves their day in court. That's that's not saying it uh fully. It's it's the system must be fair every day. Or another way I've heard it phrased is you judge a society by how it treats its its worst citizens, not by how it treats its best citizens. But I don't I don't love that because it characterizes some people as worst citizens. So, you know, for me, hey, you guys said that the government has to prove guilt beyond a reasonable doubt. Why are you bitching at me for just holding you to the standard?

SPEAKER_00 8:12

Right. And so uh how much do you uh are you also influenced uh by Publius or whatever his last name was about, you know, I'm human and anything a human does is not alien to me, and we're also just representing people's humanity, which I think you've touched on already.

SPEAKER_01 8:28

Yeah, I think uh I think criminal defense lawyers, by and large, have a deep well of compassion. We can take people who not only are accused of doing terrible things, but who the evidence shows did do a terrible thing, and we can still feel compassionate about them. How did they end up in this situation? What caused them to be what they are? Now, at the you know, at the lower levels the American educational system has failed large chunks uh of our people. And uh when we give people substandard educational opportunities and and uh and all of the things that goes with that, and we limit their horizons, we should not be surprised when they grow up with a disdain for the system that did that to them.

SPEAKER_00 9:27

Right. So with all the conservative uh people that are often on our jurors and the so-called law and order people, and the people who are bigots that we aren't able to catch through uh jury selection war deer, if we can't uh keep such people off our juries, how do we connect with them and still persuade them to either say not guilty or to get a hung jury?

SPEAKER_01 9:52

Well, you know, I've always wondered about the definition in in legal work of conservative and liberal. Uh a liberal in theory worries about government overreaching, but a conservative worries about government overreaching. I I view uh potential jurors not on a political spectrum, but but on uh have they had experiences in their life uh that cause them to see the flaws in the system that cause them to beware of overreaching, to be skeptical of snitches, to be skeptical of cops who cut cut steps, to be skeptical of situations where it is easy to blame somebody to have tunnel vision, to uh to have a view from the first uh moment of the case who's guilty. Uh that these are dangerous traits and and they lead to false convictions. So, you know, I I'm not I'm not particularly concerned about uh the political leanings of a potential juror.

SPEAKER_00 11:08

So, Larry, are you still based in um in Colorado or do you split your time between one or more states?

SPEAKER_01 11:14

I'm speaking from Colorado because um uh I have a series of lectures coming up, and it's easier to base out of Colorado than my other home in uh Kona, Hawaii. Um I'm also here because I never miss the Cherry Creek Arts Festival, a three-day arts festival that is just fabulous, and I love going to art festivals. Um and I love fireworks, and there'll be some good fireworks shows here, actually, better fireworks shows here than on my island, the big island of Hawaii, which has a much smaller population. But most of the time, you know, if I'm if I'm lecturing on the mainland, it's just easier to start by flying from Denver than to start from flying from Kona.

SPEAKER_00 12:06

So are you still practicing with other lawyers, or do you just uh do what you want to do and put together the teams you want to put together?

SPEAKER_01 12:13

Well, I do consulting work now. I don't let lawyers, I don't let clients hire me. I won't accept a fiduciary obligation that ties me to a client's case because I don't know how many years that case is gonna take. And I'm at a point in my career uh when I really like like waking up in the morning without a to-do list. Uh one thing I remember about the practice is every day is tense. Every day, no matter what cases you have, you wake up with a to-do list, and the to-do list is never done. Uh, it gets replaced by the next case or the next five cases. And there comes a point where I said, enough, I've done enough in that way. Now I never stop teaching, and in fact, I'm teaching more now rather than less. Uh, and I consult. Lawyers hire me uh for from means I don't know. I I don't I don't know how they find me, but they find me, and I come into a case and I work with a lawyer or a law firm and say, you know, what are the crosses we need? I just did that yesterday, spent a day analyzing a case and said, here's where I think the complaining witness is is vulnerable, and I do that civilly and criminally, and here is the opening statement that I envision, and here's the demonstrative aid that I think is the most powerful. And I work directly with the lawyer and I enjoy that very much. It's very collegial. Um and then they try the case, and and frankly, I sit in Kona.

SPEAKER_00 13:53

So, what is your web address? And I think you told me about an upcoming CLE you have in Richmond, for instance.

SPEAKER_01 14:00

Yes, uh, well, I you know, I I'm gonna be at the NACDL annual meeting in Seattle, uh, July 25, I lecture. Before then, I'll be in Maine, I'll be in Connecticut. Uh, and then uh in Virginia, I'll be in Richmond for Virginia CLE on Tuesday, October 22nd. That will be a live presentation out of their classroom in Richmond, but as I understand it, it'll also be Zoomed. Uh, then I go from Richmond to Philadelphia and see, you know, it's it's uh it keeps me in the business, it keeps me spontaneous, it keeps me thinking about cross and writing about cross. And uh I I write in the NACDL Champion, and of course, uh my book's in the third edition. And uh so, you know, uh I'm active. It's just that I'm very active in a different way.

SPEAKER_00 15:02

Well, Larry, you're one of the first people I met through the National Association of Criminal Defense Lawyers. It was the Philadelphia Quarterly Meeting in 1991. I was in my second year at a small corporate law firm with 25 lawyers in DC. And what happened was that I uh I really wanted to do something uh much more public interest-oriented or helping the people, but I went ahead and took that salary, and uh I was reading an index on censorship a few months before that the uh chief federal prosecutor in New Orleans had issued a subpoena for the advertiser records of High Times magazine. And that pissed me off to no end. So in protest, I took him at a subscription to High Times. This was 1991. We didn't have the internet then. And I sent out a letter to Attorney General Thornburg, who ended up getting along with great one. I met him a couple of times later on, and also the High Times saying, This is my protest. And through that, that's how I found out about Don Fiddler, who was at the time national director of normal, national organization for the former marijuana laws. We broke bread together and I said, Don, how do I get into criminal defense? And he said, Well, it won't be easy. Uh, you can try to become a public defender, and that's what I did. So I went to an NACDL meeting, I put the NACBL on my resume, I put the Maryland Criminal Defense Attorneys Association on my resume, and then I got a public defender job. And I was a public defender for five years. And we speak of Steve Wrench. I met Steve Wrench for the first time around 1994, and he was speaking to public defenders in Baltimore saying how great the trial horror's college was. I know you have your own views on that, I think. But when I found out that Steve was going to be there the entire summer of 1995, I jumped at it. But you know, Larry, is uh my listeners sometimes hear one of my martial arts teachers says, don't let your teachers forget how much you uh how much you cherish them. You're one of my greatest teachers. I have many, but you're one of the greatest. And I and I really appreciate you so much. And to tell you the truth, you know, you're talking about these to-do lists and all that. I don't always see your name there for make. And I don't know if you still do make in the National Criminal Defense College and uh these CLEs left and right. So I kind of wondered how you got any sleep because you're also trying cases and winning cases, together with all the Mensch stuff you did with uh training people.

SPEAKER_01 17:42

I might have been a better person if I'd have spent more time at home with my family. Uh, you know, I I loved work and and I think it may have been a fault that I worked more hours uh than uh I should have. Steve Wrench uh was key to my career. He he in many ways saved my career, made my career. Uh, and the National Criminal Defense College uh is just fabulous. It under Daryl Dansler, it was it was game-changing and it is it is transitioned to new people, but it has the same vitality uh and commitment. Uh, and I think it's just a fabulous place. I no longer uh teach in the summer sessions uh simply because I I enjoy more lecture style where I can do an entire day and lay out a system of analysis and cross-examination because I believe in that way I can have a greater impact. I can I can change a career, I can show a hundred lawyers in NACDL 400, 500 lawyers at a time. Here is a method. And it's important that lawyers understand the method does not ask us to put in more time. It asks us to be more efficient with the time we're putting in so we can all go home uh a little earlier and spend more time with our families.

SPEAKER_00 19:09

Well, you know, thanks for what you reveal there. Uh you're far from the first lawyer who's uh so accomplished, you told me, or first person, that uh their their family life suffered for their advantage. A defining moment in my learning from you was uh, I don't know how I lucked out, you were one of my two cross-examination teachers and at Macon at the airport. It's like if I could, if I had a choice, if I had a choice of who my cross-examined cross-examination teacher would be. In 1994 at the Atlanta Airport, when Macon uh hurricaned out, it would have been you. And uh there you were. I guess it was one of the actors that you were uh cross-examining, and you were cross-examining a lead detective in a murder case. And you the the facts included that uh no one bothered having the audio taping of the uh uh of the defendant uh when he was giving his confession, and there was missing this and missing that. And you were doing these full narrative questions to the cop, where you didn't even necessarily know uh if you had a right what your narrative was, but you knew you weren't going to get hurt. For instance, you said, Well, you were the chief of this division, you had control over the budget, you could have bought the, you could have bought this uh the audio equipment. So, what this was showing me was there there was this going beyond what is was in your uh book with Roger Dodd at the time. To first you learn the rules, but you need to know when to break them and when to just be in the moment. So can now, so we're at a crossroads here, therefore, because we have prosecutors hearing us, we're having other people hearing us. I would love to say that it only works by being on the side of the light. Uh, maybe can start off by saying, are there things that you don't reveal in public that you only reveal to your kinfolk? And uh then beyond that, what's your answer to to what I said about first learning and then breaking the rules?

SPEAKER_01 21:09

Well, let me take them in the order you asked. Uh, I don't lecture to prosecutors. I will not accept the offer. I, you know, what they do is what they do, but my mission statement is to serve the criminal defense bar. Um and I also lecture to bar association meetings where there are a lot of civil lawyers, and I lecture to trial lawyers organizations on both sides because I've done both sides, but I just don't accept an invitation to tell prosecutors how to better prosecute. Now, if I'm like like Virginia uh in uh October 22, that's by Virginia CLE. And so a prosecutor can can register, but you know, there's not much a prosecutor gets to do in cross examination. Uh, we don't. Call a lot of witnesses. Uh, we're trying to win the case off of our crosses so it's over at when they rest. Uh, and so, in a general sense, prosecutors don't do well at cross. They don't, they don't prepare it well, and they don't have enough experience doing it. Uh, but you know, I as I tell them, look, the judge is on your side, the jury's on your side, the instructions are on your side. What more do you want? You know? Um now you you mentioned something that I was talking about in 1994, and I'm surprised I was talking about it then. But one of the things we have said forever in teaching is wrong. So many things are wrong, but one of them is don't ask a question to which you do not know the answer is just wrong. You can ask a leading question to which you do not have the answer in discovery as long as you have thought through the logical answers, and every logical answer helps you. The danger is asking a leading question when you don't have any backup in discovery, and there are logical answers that hurt as well as logical answers that help. Now you can't run the risk because the witness could give a bad answer that is completely logical. But let's just take the cop in 1994 before body cams and all the technology. To say you had a budget, you know, to say you could have had, come on, you could walk down the hall and get a tape recorder. Don't tell me you have an entire crime lab and you don't own a tape recorder, which you can buy in 1995 at Walmart. You know, there's an example. Or you went to the academy, and at the academy they teach you how to preserve a crime scene. And you learned how that fingerprints exist on glass or metal, and you know that you know how to how to how to lift a fingerprint, or you know to call the crime lab. All of these things aren't in discovery, but they're available to us as leading questions. So I I still teach that.

SPEAKER_00 24:11

Okay, so um what made you decide to focus on the cross-exam and what made you stick with it for all these decades as a teacher?

SPEAKER_01 24:24

You know, if you're a criminal defense lawyer, the cross is the major weapon. Um calling clients is a is is dangerous, it's difficult, sometimes it's not realistic. Uh, and especially as a public defender, these people are vulnerable, they've been beaten down by the system. Although I must tell you, having having done commercial litigation, well-educated people who've been the head of corporations and own pretty clothes don't do any better at when they're being cross-examined. That's my experience. Think of the tension in our bodies when we go to trial. And that's an occupation we picked. Now imagine what it's like for the citizen who didn't pick this as a career. We're we're just loading too much pressure on the shoulders of our witnesses, and I think we are better at telling the client's story than often they are. And in a system in which the opponent has to prove guilt beyond a reasonable doubt, the shortest route to victory is a reasonable doubt in the opponent's case, and how you show a reasonable doubt is primarily with cross, not with direct. So it just seemed to me that I had to learn cross, and that once I understood cross better, with the help of Steve Ranch, I understood the opening statement exists to give value to the crosses, to envision the crosses and discuss the crosses. Not I'm going to cross someday, you know, keep an open mind, but let me tell you how she changed her story. Let me tell you what the eyewitness says she saw that doesn't fit my client. Let me tell you things the cop didn't do. Let me tell you the things in opening so that the cross becomes verification, not revelation. And then closing is about the crosses that work best. It's it's a cross-centered preparation.

SPEAKER_00 26:39

So uh, Larry, I'd like you to address what you think about my view of analogizing a lot of what cross-examination and criminal defense is to my Chinese martial art of Tai Chichuan. Uh, it's a good thing that I interviewed uh my Tai Chichuan teacher uh a few shows ago because that forced me to get back into it, not let up. And when we do the Tai Chichuan sparring, a key part is that we yield to the push. We don't yield any faster than the other person's pushing us. We're being sensitive what's gone, we're engaging the person because when we're yielding to it, we know where they're coming from, and then we uh turn our bodies away so we're so they even have nothing to push against, and then we push them. And sometimes we're just discharging them, knocking them on their ass. And uh the way I look at this is if I always am going to apply yield, turn, and push. It's very hard for me to get angry at the opponent, it's very hard for me to lose my track, it's very hard for me to lose my page, and I'm much less likely to do what I, you know, you tell me if it's ever even justified to ask the judge for any help when we have a runaway witness. So if you could address any or all of that.

SPEAKER_01 27:56

I don't view uh the opposing counsel as my opponent. Uh it's not at me versus them. My opponent is the burden of proof. And the burden of proof is satisfied or not satisfied through witnesses. And I don't even view the witnesses as my opponent. I view the witnesses as what do you know that I can get you to talk about that helps me? What are the things you left out? What are the things you minimized? What are the things you'll concede? Uh, it it's using the witness to tell our stories. Uh, and and what we're doing is we're doing asymmetrical cross-examination. The old style of cross was was they are coming at you with force, the force of an argument. There is a fact. And we were coming back and fighting that fact. And so it was symmetrical. They say X and we say not X. But the problem is that sets us up for an endless series of battles, many of which we can't win. Clients do things we wish they hadn't done. We in civil they send emails that we dearly wish they hadn't done. Uh, there's there's paperwork, there's statements. There's what we do in modern cross, asymmetrical cross, is we say, what do you know that you haven't talked about because it helps me? What did you do that I want to talk about? You know, you kicked my client. Let's talk about where you kicked my client. Let's talk about the force you used. Let's talk about having kicked him and he's on the ground. You didn't retreat. Let's talk about the swear words you used. Let's talk about uh the racial statements you made. Let's talk to the cop about you know how to be a good cop. And one of the things that's fundamental is separating the witnesses so they don't hear each other during the interview. And you didn't separate the witnesses. So we're we're doing, we're taking the witnesses into areas that favor us. And and I think there's a martial arts component to it in that in that we're using the force of the witnesses' credibility against them. Where, you know, it's very hard for a prosecutor, well, actually it's impossible, for a prosecutor to say, I know my witness conceded X. Please don't believe my witness. So when in modern cross, we are using the opponent's witnesses against the opponent's case. It's not so much, ladies and gentlemen of the jury, I ask you not to believe the witness. There are those moments, there are those parts of it, but a lot of it is, ladies and gentlemen of the jury, let's remember what the opponent's witness conceded.

SPEAKER_00 30:57

That's all well said. I mean, I tell my clients so often, I said, you know, you've lost a lot of this war. If you're getting angry at the prosecutor, you're getting angry at the cop, this is not us versus the opponent. This is us seeking as much justice as possible as we can get for you. And then getting to the Tai Chi aspect, this is about us harmonizing a disharmonious situation as best we can. I mean, I had a fun uh winning a bench trial. You know, uh, the great Terry McCarthy calls bench trials slow flea as well. You know, you and I the one bench trials. And a bench trial that I won. Well, actually, the suppression stage was fun. I pissed off the prosecutor to know. And then when I was talking to the uh drug chemist, and I said, Well, you know, let me just see your notes. And then the prosecutor, well, you don't have to show them that page to the prosecutor. You may not want to reconsider what you just said. What are you saying if the call? I said, Well, I won't have to if you don't get no way to be seeing that page. So the prosecutor puts the cop up on the witness stand and he sends the car, his uh just uh got off the uh factory in Detroit, so he didn't have any uh calibration of his speedometer, and he tried to testify that he uh saw my client's car was speeding. And the judge actually overruled my objection, but the prosecutor started that she was gonna show me what evidence the law was about, so she tried to get me evidence about what the uh policing speed was and she couldn't get it in. So she arrested. And we won the cloud possession, please, because when my client, the pastor, got out of the car and the cop said, does anyone have any drugs on it? My client said, What's in my pocketbook? And so when her boyfriend uh had his appeal, like he probably did jury trial, which you can do in the state, or in when he had his case and he hired me, the prosecutor called me up, and she still didn't understand what she had done wrong two months later. So she had done opposite to what you say, Larry. She saw me as the opponent.

SPEAKER_01 32:51

Yeah, they get they get emotionally invested. They think that it's they want to say they beat us or we beat them. This is not like an athletic event. It doesn't start at zero, zero. It starts with the the jury knowing zero, but it doesn't start at zero. The facts have been dealt out largely, and they're never equally dealt out. The prosecution gets far better facts, but they they have to shoulder the burden. And and our job is to show a reasonable doubt, not innocence, and and it's not beating the prosecutor, it's not even beating the witness, it's not beating the case. It is there are standards and they can't meet the standards. And how do we get there factually? And one of the great things you can do is find a fact that the prosecutor loves and build it into your theory of the case. So you say, I love it too. Take it away from the prosecutor and say, you know, I'm glad you talked about that. Let's get deeper into that. And it just unnerves them. But you, you know, you're right, Jonathan. When the opponent makes it personal, they make mistakes, they do things, they ask things, they use a tone of voice that gives away that they're getting hurt. And we see this a lot in redirect examinations by a prosecutor. You get up, you do a powerful cross, it scores points, and then a prosecutor who's worried about it gets up and with a witness who is not prepared on these points and using open-ended questions tries to repair the damage, and it just gets worse. Right. Prosecutors in general shouldn't do redirects, and it's almost never that I do a recross. You want to say to a jury, I the damage is done. You know, I don't need to stand up again. There's and there's nothing happening here in redirect that makes a difference. And then we hear prosecutors say in this dramatic voice, now, having heard all of this crossed by defense counsel, does that in any way change your testimony that that's the man who did this? Or they say to the lab examiner, does that in any way change your opinion? No, that's that's worthless stuff. That's just conclusory stuff.

SPEAKER_00 35:21

Right.

SPEAKER_01 35:21

Yeah, it has no bearing.

SPEAKER_00 35:24

Okay, so there's a great story about Bob Ritchie, whether it's true or not, the great Bob Ritchie from where was he from?

SPEAKER_01 35:30

Kentucky and uh Knoxville.

SPEAKER_00 35:32

There, there you go. Tennessee.

SPEAKER_01 35:34

Ritchie Fells and Daniels was the case, and it's still there, and it's a fabulous law firm.

SPEAKER_00 35:40

Well, well, there you go. And uh, so the story goes that there's tension that he could cut with a knife that some criminal defense lawyer senses when he goes to the police station and in walks this unknown man in a trench coat, probably not showing all his riches, and he goes right to the coffee maker and pours some three-day old coffee into the cup, and and he's just chatting up with the cops, and then he leaves. And the the remaining lawyer who who felt the tension in the air said, Who was that? He said, Bob Ritchie. Bob had this way about him, I guess, of just seeing the human beings in everyone. And of course, his former law partner, uh Charlie Fells, I think at some point he was a minister.

SPEAKER_01 36:20

And I think he is a minister, that's my understanding, or was a minister, right? That's my understanding. He left the practice to to be a minister, and he was a fabulous, fabulous lawyer. And what he would say at the National College is you know, justice is not uh a destination, it's a journey. Uh and you know, it's true. We it it we we stand up and we bring life to the law, to the Bill of Rights, to uh the nation's belief, if it's still there, that people should be presumed innocent.

SPEAKER_00 36:58

And so that's that's excellent. And where I'm coming from, you know, I was like a bull in the in a China shop that I had to restrain when I started as a criminal defense lawyer, because I saw it as an us versus them kind of situation. I was two years out of law school, I was angry at humans or human rights violations, that's why I'd gotten involved with Amnesty International. And it's a good thing that I got involved with the Buddhas, for instance, uh, who point out that everyone has Buddha nature. So if I smile at a judge who's uh steamrolling over justice or urinating on the constitution, do the same thing with a cop, or a prosecutor seems to do the same thing, they do have Buddha nature. Now, whether they're going to reach Buddhahood in this life for many millions of years later is a different thing. But there was a prosecutor who was sent to me when he wouldn't settle a DWI case for reckless job and say, let's just let's just go to trauma cats. You smile when you object, and I do often smile when I object because I know every time I object, every time I make an argument, I might get pearls back from the judge that I just never expected.

SPEAKER_01 38:03

Yeah, yeah. We, you know, a big part of modern trial advocacy is listening to the way people say things. Not just the content by word, did the witness say yes, but the voice that said yes, or the word absolutely means something more than yes. And and a delayed yes tells us where the reluctance is. We spend more time listening to how people are handling our questions, and it gives us a better idea of their softness, our ability to push on them in a particular area. Or don't go deeper into this, they feel comfortable there, they're ready for this. You know, it's uh it's it's just easier. I can't read body language, I can't pay attention to everybody in the courtroom at the same time, and just don't have that ability. So I just listened and watch the witness and work with them. Uh and it's just it's easier, and and it's I I was in front of a judge just this week, because I I was arguing something. Uh actually it was last week. Uh and and I told the judge, you know, one of the first things I learned was a judge said to me, My rulings are not debatable, they are only appealable. And so I accept the ruling, and I will not debate it, but working off of a ruling by a previous judge, let me show you how it sidetracked the trial into an area that the trial shouldn't have been in and took us all, took everybody, all the parties, away from the elements of the crime. So, you know, I don't believe in rolling eyes at judges' rulings or or showing disdain. All of that is not only a distraction, but it's rude and unnecessary. We absorb the ruling and we cope with it. We absorb the testimony and we hear it for what it is, and we examine the weaknesses in it. It's just a it's easier in it. We just need to take the personalities out of it and not fight with people, but but fight about facts.

SPEAKER_00 40:30

And of course, Steve Wrench tells us how not to get angry at judges, but if we're not Steve Wrench, I think all of us do sometimes feel anger, unless you don't. So do you ever feel anger? And what do you do with it then?

SPEAKER_01 40:41

I feel anger, but showing it just is going to to it's not gonna benefit me. If if if there were a benefit, tactically, maybe, but I can't see the benefit. Judges make rulings that I think just make no sense, but it is the ruling. Now, I have said to judges many times, I understand the court's not letting me go into X. I understand the ruling, and I will abide by the ruling. But let me make a record, a sentence at a time, not you know, this global, I understand the court will not allow this entire line of questioning. There is no such thing as a line of questioning. The appellate court doesn't know what a line of questioning is. Say, I want to read into the record the leading questions I was going to ask the witness and the answers. And the reason I can give the court the answers is because I have the transcripts, I have the police reports, I have the lab reports. So let me read in what my leading question would be, what the answer would be. I'll often even read in, Your Honor, and that comes from the lab report, page 29, you know, of the date of. And so let me make an appellate record gently, professionally. Here is what the ruling means to my client. Sometimes a judge will look up and say, Well, now that you fleshed it out, counselor, there are parts of that I think are relevant. And I say, that's my fault, Your Honor. I was not as descriptive as I should have been. And sometimes I say to courts, you know, I understand the ruling, and and I have done an insufficient job of acquainting the court with the relevance. May I talk for a moment about the relevance? And then a judge says, yes. And so you take it on yourself, not that's a stupid ruling. That gets me nowhere. You know, what I want most is to be allowed to proceed. And secondarily, if I'm not allowed to proceed, what I want most is a thorough appellate record so they can see the consequence of the ruling. And none of that happens if I roll my eyes and and I just I make a noise and hold my head in my hand and show disdain. That isn't advancing my clients' interests.

SPEAKER_00 43:16

Okay, so how are you keeping that in sync when your uh client sacked and all bent out of shape despite all the preparation you've done for your client, not to roll his eyes or yell or or keep tapping on your arm about what the hell's going on here?

SPEAKER_01 43:30

You know, most clients are well behaved. I have had I have had first-degree murder cases with tough clients and with facts that are pretty bad. And I'm amazed at how well behaved they are. I have had clients sentenced to life in prison after a first degree murder conviction. Uh and and there's no contempt of court power. I mean, they they can say and do anything they can Want what are you going to do to a life without parole sentence? And they're still respectful until recently. We taught America to be respectful of the judicial system. So I really don't have many clients who act up, but I got to tell them before trial: don't do it. It's not helping. Just listen. Write a note if you want, whisper in my ear. But we always show respect for the judge. We show respect for our opponent. When you are being questioned, if you're on the stand, you should treat the opponent with the same degree of respect you treat me. Let me worry about how to fight the case, not you.

SPEAKER_00 44:45

Okay, now that's all uh well said. Now, going back to you're talking about you can't necessarily read the room. Uh so now that ties in with what one of my previous guests wanted me to ask you about was do you have to be born with being a great trial, or can you learn it? Do you have to have some of it? What do you got to have to be able to do it well?

SPEAKER_01 45:09

That's an easy question. None of us are born with this. I really don't believe it. I don't believe these stupid things like Cross is in her DNA. I don't know what is in DNA, but Cross isn't there. Uh she's a natural. These words may describe somebody is more comfortable from the first day talking, but they don't describe what we do. Trial work is a set of learned skills. Those skills are not dependent on personality or showmanship. It's not glitz, it's not dancing, it's not dress for success that makes us good trial lawyers. It is thorough preparation. And once we have prepared, we can all get to the same verdict. We just get there, some of us more quietly than others, more directly. Uh, but it's a series. Impeachment is not a stylistic thing. Impeachment is on a previous occasion where you had the need to be accurate, you had the opportunity to be accurate, had the desire to be accurate, and then you said a thing, that thing is more believable than your latest version. Um, you know, we it's formulaic. There are things that work over and over the rest of our lives, and they work for all of us. And that's what I teach is these methodologies that repeat its prep that makes us great, and we have to be taught. None of us graduate law school knowing how to do this stuff. This isn't natural, and it doesn't then matter what our personality is. We go to court and we do what's available to be done, and we point out the weaknesses in the opponent's case, and we do asymmetrical cross that causes their witnesses to support our theory, and we can all get to the same verdict quietly. That's what I believe.

SPEAKER_00 47:24

Now, so there's methodology, but we also want to integrate this with our realness, right? And also with being in the moment, and uh Daryl Dansler is only one of the people who talk about our magic. So for you, what is what is the magic other than uh bringing out the best realness that we have and uh using the cross-examination to tell our story, our persuasive story?

SPEAKER_01 47:47

I want to leave myself alone. I uh there's so much going on in that room. It's difficult enough that I cannot begin to think about where I should stand, what should I do with my hands, what should my voice be? I want to I want to use my preparation to lock in with the witness and do goal-oriented questioning and let my body go where it goes and let my voice go where it goes and not have to think about it. I I will tell you, this is just me. I'm not recommending it. I'm just saying it's who I am. I find cross to be very intensive work, and and I hold my head in my hands a lot of times at a podium, or or put my hands under my chin, and I look at the witness and I talk to them, and my hands go where they go. I'm I'm not I'm not trying to be authentic. I'm just saying, body, do whatever you're thinking of, but I'm working here and I can't I can't add on to it. What should I do with voice and should I step away from the podium? I want it to be organic, I want it to be natural. And if somebody else looks at it and says, but that's not me, my answer is great, be you. You know, let us all be ourselves and just just be genuine. But you be genuine is as somebody said, being genuine is the hardest thing to do. What uh what is it? And so, you know, and so and the hardest thing is to fake being genuine. Well, you know, you can't do both, you can't fake being genuine. So let it happen organically. Every style can work, but what prep really works is prep. And what doesn't work is I didn't prep, but I can over overcome it with glitz, I can overcome it with glibness. No, you can't. You can be glib, but you're not as good as prepared is. So glib don't feed the bulldog. In the end, know the facts that you need.

SPEAKER_00 50:14

Okay, prepared. So I'm sure you've dealt with uh criminal cases and civil cases dealing with hundreds or even thousands of hours of audio, videotape, and film, thousands of photo and diagram exhibits and graphs, and uh thousands of pages of data. So, what do you do to condense that down to what you need, whether that's uh computer programs or assistance or whatever? And what do you do to have that information fresh if uh the case is not going to trial or retrial for up to a year or more after you first process that data?

SPEAKER_01 50:54

Yeah, well, uh and the emails, boy, in the commercial litigation, the emails uh come in by the thousands because everybody copied everything. So one email shows up in discovery eight times. Um I believe in every case, since the evidence comes in through witnesses, the first thing to do is to take whatever the discovery is and package it by witness. And an email that's sent from A to B gets packaged in A and B. It needs to be in both. It's not, I think I read that somewhere. Where else did I read it? If a cop interviews the witness, it needs to be in the cops folder and in the witnesses folder. And if two cops interviewed the witness, it needs to be in both cops folder and the witness folder. So my first thing is let's break down the material and package it by witness, and then let's read the material, not chronologically, not and not from page one. Let's read it by witness. Who is the key witness? Let's start reading in their file their material and write their crosses, and then we'll progress to another witness. But but the your initial organization is packaging material by the witness that it relates to, and that makes life a lot easier. And there's a bunch of this stuff that just isn't important, a bunch of stuff that you know we just don't get to. People we we come out of this era of no stone unturned, but in many cases, there are too many stones. In many cases, you know, I there are just too many emails. Well, you know, I find young lawyers fresh out of law school can read stacks of emails and say, here's the important ones. And if they tell me these are the important ones, I'm not gonna check their paper. They know, and so we we do a grading system and tell me about the A's, give me a sentence or two about an A. Tell me list the B's and I'll read the B's. But the C's, get them out of the case. And people say, Well, don't you miss something? Well, maybe, but how likely is it that the C document was misgraded and it changes the case? If the A's are analyzed, that's probably what the case is about. And then when we build notebooks for for these cases, the notebooks that we're gonna give the jurors, well, you know, a notebook of a hundred documents, the juror isn't gonna read it. What are the 10 key dots? What are the best documents? What are the worst documents? That's where the case is gonna be decided.

SPEAKER_00 53:52

Okay, witnesses. We do have to call uh witnesses as criminal defense lords, for instance, scientific experts. So I had a scientific expert, and I'm not gonna identify him because he ended up uh not sweating anymore. But let's just say back around 2013, I had one of the only witnesses for a very suspension of law and had a habeas corpus here when he was being paid six hundred and fifty dollars an hour, and we ended up breaking and said, Why are you sweating? He said, Because I'm nervous. I said, I'm not gonna for $650 an hour. Which one thousand dollars? So what happened was when I called in the next fundamental court, and then I won my jury trial, so at least we had to warm up with a habeas corpus hearing where there was no jury. I was able to work with him and talk to him about why he wasn't gonna get nervous. He knows the material hands down, everyone likes him. But I mean, what do we do beyond that, Larry, to make sure that our witnesses are fully prepared and they're not these gunniffs who take our thousand dollars an hour to testify and they barely prepare?

SPEAKER_01 54:57

Yeah. Um I think the the prep for direct needs to be in the same style as the prep for cross. The difference is I have to ask an open-ended question. But saying to the witness, then I'm gonna take you through your lab report, and then I'm gonna take you through the parts of her report that you disagree with, that isn't educational. What is educational is let's go a chapter at a time. I need to talk to you about how DNA can be found on clothing or on a gun that a person never touched, how the transfer of DNA can happen because it's if you mix clothes in the clothes hamper, the DNA will rub off. If you if you wash your clothes together as a family, everybody's DNA is on everything. Uh, if if you touch a friend and the friend touches the gun, your DNA can be on the gun. So I want to talk to you about this secondary transfer. And I'll ask this and this, I'll ask this, and your answer will be this, as I understand it. And and then now the experts getting involved. And I say, yes, and then ask me this. And so I'm writing out my directs the same way I write my crosses, a chapter at a time. Here is the question I'm going to ask, and in parentheses, here is the answer I expect. And now when we when we prepare for trial, the witness literally knows what's coming at them. They even know the often the order, and so they don't hop ahead and fear that I'll leave something out because we've we we gone over, I'm going to get into this, and what example are you going to give? And then and what's wrong with the tests she gave? What's wrong with the way she ran that lab? Well, there are three things wrong. Okay, let's take the first thing and talk about it. Let's then take the second thing. So we're really preparing the witness uh uh in detail, and that causes them to feel under control. They know what's coming. But this, you know, and then I'll take you through your story. That doesn't that doesn't get anybody ready.

SPEAKER_00 57:17

Okay, so you talked about how you take the witnesses due direct, but what about dealing uh with them getting bent out of shape on cross where the prosecutor asks a question of our witness that we weren't even uh ready for or preparing our witness for?

SPEAKER_01 57:32

I uh recently called a witness, uh, an expert. Uh he is uh a double-chaired professor at Harvard. That's almost unheard of. Double chaired means he holds the chair of blank and he holds another chair of blank. And you just Harvard doesn't do this, and he is he is the god of trusts in America. He is every everybody in America looks at him when it comes to trust. And he was the best expert I ever put on the stand. And if you read the cross-examination my opponent did, here's how it sounds opponent would ask a question, and my witness, the best there is, would say the word yes. Repeatedly he said the word yes. Now, why do I say he is the best expert I ever had? Because the opponent was very skillful, and he asked honest questions to which the answer was yes, and that's what I love. We say, Well, don't you love the fight back? That's for me to do. That's for me to say, now when you said yes, is there more to that? That's my choice, but but I'm not hiring you to be a lawyer if the opponent is skillful enough to ask a question to which the truthful answer is yes. Yes is the minimum amount of useful information you can give. And and so I'm not looking for them to pick the fights. I'll do that. That's my job to say, is there more? Or why does that not matter in the context of this case? So I'm not hiring experts to do battle, I'm hiring them to be honest, to keep their credibility, and to let me be the lawyer. Now, if the opponent misstates the facts, if the opponent misstates the value of a test, fine. Then you can say no, I can't agree with that. But if they're skillful enough to ask it in a way where the answer is yes, please just say yes. Think of it this way. When do we ever say to our witnesses when we are preparing them, I want you to answer long. I want you to give lots in your answers. We don't, because it's not, it's too dangerous. Let us figure out where to go, not them. So, you know, I'd want my expert to be honest, and then they'll signal where the answer should be no.

SPEAKER_00 1:00:27

Larry, you have blessed me and our audience will be here for the next few months and decades to come with your presence. I'm sure a lot of our NACBL brethren and sister will be listening. Thank you so much. I'd I'd ask you to stay with me for 10 more hours if I could, but you've blessed every minute you've you've been here as a blessing. What would you like the listeners to know or hear that uh they have not already heard?

SPEAKER_01 1:00:56

I think I said it, but let me say it uh in the shortest words. We can all do this, we can all be great cross-examiners. It it's not an art form, it is a series of learned skills. And while I have a book on it, you don't need the book, but you also don't need trials. Trials are not the places to learn how to cross. We put together the scripts in our office, and with thorough preparation, we are more at ease and we go to court and we do what we planned to do. That's how we can live it with ourselves.

SPEAKER_00 1:01:38

And the name of the book is because I think you have more than one?

SPEAKER_01 1:01:41

Cross-examination science and techniques. It's in its third edition by Posner and Dodd.

SPEAKER_00 1:01:47

That's the book. Everybody, uh, you have learned from and heard from a superhuman. He is modest about it. He is a superhuman. He may not have been born a superhuman, but he is. You've heard from Larry Posner, a great criminal defense lawyer in Denver and wherever that is in Hawaii.

SPEAKER_01 1:02:07

Kona, Hawaii, and uh if you need me, it's it's uh www.posner on cross at gmail.com. And you can call me 303-888-7063. I am just one of you. I'm nothing special. We're all part of the same family.

SPEAKER_00 1:02:27

Uh he's a mensch. Thank you so much. You've heard from John Katz with Larry Posner. I am a criminal defense and DUI defense lawyer here in Fairfax, Northern Virginia. For those who think I'm good, I'm a lot better than I would have been if it wasn't for Larry Posner.

SPEAKER_02 1:02:44

Thank you for listening to this week's episode from Beat the Prosecution. This is a regular podcast giving people a leg up against police investigations and prosecutions. We welcome you contacting us at info at beatheprosecution.com by calling 703-383-1100 or texting us at 571-406-7268.