Podcast - There's More Than One Way to Win
In trial work, courage often means pressing forward even when the outcome is uncertain. In this episode of "The Trial Lawyer's Handbook," litigation attorney Dan Small continues his discussion of the mock case State v. Faulkner and explains how he used it in his pro bono work in Uzbekistan. Referencing themes from his book for the American Bar Association, Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers, Mr. Small reflects on cases with significant legal obstacles and why believing in the right result can justify taking risks. He describes how the mock trial revealed deep cultural differences in legal systems, including the Uzbek participants' resistance to trying a case they might lose and their unfamiliarity with direct and cross-examination. Mr. Small recounts a pivotal moment when one of the defense lawyers questioned whether it was even possible in her country to challenge a government witness and describes how the workshop offered a glimpse of what a balanced adversarial system could look like. He closes by sharing that a decade later, Uzbekistan amended its constitution to include the right to cross-examine witnesses, showing that meaningful change can begin with small steps.
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." In this episode we'll continue discussing the mock trial State v. Faulkner and how I used it for my pro bono work in Uzbekistan. These episodes are based in part on my latest book for the American Bar Association, "Lessons Learned from a Life on Trial."
The law is not static. If you believe in your case, you can often overcome substantial obstacles. You can push your side of the case by doing what is right. Sometimes that can backfire, but often it is using our skills and our system to seek the right result. I brought both the Farmers Export grain elevator explosion case and the Appling County corruption prosecution, both of which we discussed in prior episodes, knowing that we faced significant legal challenges. Knowing that I might lose, and losing such high-profile cases can not only set back the law, but it can also create martyrs out of defendants. But I believed in both cases and pushed forward. In Appling County I very nearly lost the case to the judge's concerns about the Racketeer Influenced and Corrupt Organizations Act, RICO as they call it. In Farmers Export the criminal regulatory statute was also controversial and that controversy was proven by the hung jury in the end.
Both cases were right to bring, and both cases were wins in meaningful ways. The Uzbeks had no sense of there being two sides to the story or the notion that in trial both sides could put forward their story and either side might prevail. Prosecutors assembled and handed the judge the case file. If the file was inadequate for conviction, that reflected badly on the prosecutor. They might get disciplined or even fired. Our principles of burden of proof, presumption of innocence and proof beyond a reasonable doubt, were just not commonly accepted there.
On the afternoon of the second day of the Uzbekistan workshop while the teams met to plan for trial the next day, I walked around the large room with an interpreter, going from one table to the next listening, in and answering questions. Suddenly one of the NGO Regional Dialogue staff came running from the other side of the room. "Mr. Small," she said. "We have a crisis. The prosecution team in the Faulkner case is quitting." Puzzled, I replied, "What do you mean, quitting? It is just an exercise." "I don't know," she said. "Please come with me right away." So, I did.
The balance of power within the Uzbek judicial system at that time was no balance. It was still almost entirely with the prosecution. Prosecutors were government officials and until recently had even worn military-type uniforms. I had not fully appreciated it in the larger group, but when I walked over to the table of seven or eight prosecutors sitting together, I realized that effectively they were still in uniform. All of them wore black suits, white shirts and narrow ties. Combined with a clear sense of unhappiness around the table, it looked to me like a caricature of an undertaker's convention. Grim.
Through the interpreter I asked what the problem was. The lead prosecutor responded in a way that we need to think about carefully. He said, "We cannot try this case. We might lose." In an essentially one-sided system, losing was not a tolerable option. To lose a case they put together and hand it to the judge would be an unheard-of personal and professional rebuke. It just was not done, and they were not willing to start here. I explained to them that this was just an exercise. No one was being evaluated or graded. Like any mock trial, it was designed to be fair, to be even, to give both sides a chance to put on witnesses, to cross-examine and have a chance to win. In real life they might decide not to even bring the case if it was too close, but here, they could relax. And because it was so close, whoever took it most seriously, worked hardest and planned hardest had a better chance at winning.
Still facing a skeptical audience, I launched into my best Vince Lombardi imitation, the great NFL coach who famously said, "Winners never quit and quitters never win." "Just because it is hard," I said, "does not mean that you should not try. Just that you should try harder. I know this is a new world for you. We are here to help you try out something new with no one telling you what to do or passing judgment on you or carrying it over to your other work. Just offering to show you some options." Slowly they overcame their doubts and fears and ended up being enthusiastic participants in the mock trial.
Winning and losing, pushing for what you believe is right. And even though it may not be easy or a sure thing, these are aspects of our system that we take for granted, but we should not. They allow us to do what is right, what we believe in. Even when it is new or unpopular or challenging.
To the Uzbeks that was opening the door to a brand-new world. Scary but exciting. The one-sided nature of their system pervaded the defense counsel as well. After two days of discussing trials, direct, cross, the nature of mock trial exercise with two witnesses on each side, the teams plan for trial, plan for cross-examining the other side's witnesses, but that night, sitting at a dinner table full of defense counsel, one of the best of them turned to me and through an interpreter asked in disbelief, "Mr. Small, we are not actually going to ask questions of a government witness?" as if I had suggested something absurd, unreal. I was taken aback. I said, "Yes." And I explained yet again the structure of the mock trial with direct and cross of two witnesses by each side. At which point this mature, intelligent woman started to cry. And she asked, "Do you think that could ever happen in my country? That a defense lawyer could ask questions of a government witness?" I could only answer that I did not know. I had no power to impose change. Only to offer a look at what might be available, a look at the menu. At that moment in time that was enough for her. Things we in the U.S. take for granted were still a far-off fantasy. But with the NGO leading the way we kept at it slowly, step by step.
Ten years later I was honored to be invited to speak at an international conference celebrating amendments to the Uzbek Constitution, including the right to cross-examine witnesses. They still have a long way to go on their journey. It is still unreal to them a little bit. But so much of what we take for granted is becoming a new reality there.