Podcast - Not a Level Playing Field
Trials are human and thus imperfect, and sometimes those inherent imperfections can tilt the playing field before the jury ever hears the full story. Continuing his behind-the-scenes account of defending former Louisiana Gov. Edwin Edwards, litigation attorney Dan Small shares what happens when a case lands in front of a judge with a long memory and an even longer grudge. With Louisiana's tight-knit political world making neutrality hard to find, the defense team faced an extremely long uphill battle, as seemingly small rulings and daily setbacks compounded over nearly three months in court. However, Mr. Small emphasizes, the true lesson for trial lawyers is to remain prepared to vigorously advocate for their clients' interests, also making sure to keep a client's spirits up even when fairness seems impossible to obtain. As he says, "buckle up and keep playing anyway" and continue trying the case.
Listen to more episodes of The Trial Lawyer's Handbook here.
This podcast episode was adapted from Mr. Small's book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers.
Dan Small: Welcome to another episode of "The Trial Lawyer's Handbook" podcast. In this episode we will continue discussing my defense of former Louisiana governor Edwin Edwards. These episodes are based in part on my latest ABA book, "Lessons Learned from a Life on Trial."
Trials are human events and thus, like the humans who conduct them, they're imperfect. As trial lawyers, part of our mission is to track down those imperfections and deal with them as best as we can. If we can't deal with them, we simply have to keep moving forward. Judicial imperfections can be difficult to address – sometimes impossible.
Litigants in any case rely on a fair and impartial judge to preside over a trial. The jury, of course, decides the ultimate verdict, but the trial judge makes a multitude of rulings that can impact the case, such as what is presented to the jury for their consideration. In any jurisdiction, there can be judges who are considered "pro-government" or "pro-defense." Sometimes it's based on their background. Sometimes it's political or philosophical. Sometimes it's not true. But usually it's not personal.
Most jurisdictions, particularly for federal courts, are large enough that the judge is unlikely to have any real knowledge or history with the defendant. This was not true in Louisiana. The state itself is small: Its total population is smaller than Greater Boston, and politics and government are even smaller worlds. My client, former Governor Edwin Edwards, had been a dominant figure in Louisiana politics for four decades, so it was hard to find someone who didn't know him. And to know him was to love him or hate him. Polls showed that few people were neutral about Edwin Edwards.
So, if someone worked their way up the ladder in politics and government, to become, let's say, a federal judge, it's likely that they had a history with Edwin – good or bad. The judge in our case had a long history, and it was a bad one. Edwin supposedly passed him over for a position he had coveted in state government, and it was said that the judge had hated Edwin ever since. If the incident had been more recent and documented, we might have been able to have the judge removed. But it was a long time ago, and it was not documented. Grudges in Louisiana can last a lifetime, so we were stuck with a judge who apparently had a long-standing grudge against our client.
And he was so darn pleasant about it. I tried the case with my good friend and great lawyer Jim Cole. The judge acted like our best friend. He would smile and say nice things about us as he pulled our legs out from under us and cut us to ribbons. Every. Day. Nearly every day, for almost three months, Jim and I would walk to court and ask each other, "How is he going to mess with us today?" It was a heck of a way to have to start each trial day.
What could we do? Try our case. Be as prepared, zealous and determined as possible. Keep pushing. Understand that it was not a level playing field, but buckle up and keep playing anyway. Not to say it was easy. It was not. It was difficult, stressful and exhausting. And we had the added burden of trying to keep our client's spirits up as well. But that's what's required. Do the best you can for your clients, regardless of the circumstances. That's what we did. Good luck in court.