Timing Like a Hawk

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Wednesday, October 2nd, 2019
Timing Like a Hawk

A good trial lawyer is one who watches for and takes advantage of valuable opportunities. Trial lawyers are opportunists. Spotting the opportunity takes the skill of a hawk. Recognizing the exact moment to exploit the opportunity requires quick action. If you miss the moment, you lose your prey. The most successful trial lawyers are the ones who know the most and who are the most prepared. They put themselves in a position to crush their opponent by being prepared for that one opportunity. When it exposes itself, they swoop in for the kill.

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These opportunities present themselves in and out of trial every day. While we need to pay close attention to them in trial, many times we can avoid trial and obtain favorable outcomes for our clients if we are on our game at all times. Consider the following examples from the different phases of the life of a case.

1.   Plea negotiation with the right person and the right judge. How many times have you felt like you were pounding your head against a brick wall over and over when you were trying to negotiate a reasonable plea bargain for a client? You knew the case was not a trial case, and you were practically begging for a normal, run-of-the-mill plea that any other prosecutor in the court would give you except for the one assigned to your case. It’s frustrating, and it feels unfair. It feels like you are being singled out. Then low and behold, on one court setting, that specific prosecutor is on vacation or is out sick and you get the deal you want, plea the case, and never look back. The timing was right, and you seized the opportunity. The same holds true for certain “obstacle” judges. Be patient and the opportunity will come at the right time.

2.   The State drops the ball. Have you ever been in trial and the state overlooked a crucial element they must prove? For example, in a DWI Consent Blood Draw case, Tex. Trans. Code 724.017 must be proved up for the blood result to be admissible. Many times, the states fails to provide actual proof of the blood drawer’s qualifications as well as the blood being drawn in a sanitary place. This type of evidence cannot be offered through a police officer over a valid hearsay objection or without the state proving up his qualifications to offer such an opinion (which I’ve never had them do). Yet, I see this happening in almost every trial I watch. There are real opportunities here to keep the blood out of evidence. You have to know the statute backwards and forwards, know the case law, wait for the state to drop the ball, and then you’ve got them. But keep quiet and wait for trial.

         When I see this happen, I keep my mouth shut, realizing that the state is not going to call any other witness to try to prove up the requirements of Section 724.017. They have not subpoenaed the blood drawer, either out of over-confidence, simply misunderstanding their burden, or because the blood drawer is no longer available.

         When argued correctly, this fumble by the state is that opportunity you were waiting for. Now . . . this is a two-step victory so don’t mess it up by excitedly and prematurely jumping out of your seat to object to the admissibility of the blood result right when the state passes the witness. Be patient. Wait. The opportunity presented itself, but the timing isn’t right yet. If the state releases the witness from the stand and he leaves the room, the timing is still not right. Wait, be patient. When the blood analyst is called to the stand next and the state starts asking background questions and starts going into the theory of Headspace Gas Chromatography . . . Wait, be patient. The timing is still not right.

         Now . . . after the state has just put the jury to sleep with talk about dual columns, retention time, and acetone peaks, they are finally ready to try to admit the almighty BAC lab report that could potentially destroy your case.

         NOW is the time to object. You have remained silent and maintained a good poker face up until this point. Ask the judge if you may approach, object to the admissibility of the lab report, and ask for a hearing about it outside the presence of the jury. If the judge questions if you are raising a motion to suppress and asks why you didn’t have a written motion on file, just cite Roberts v. State, 545 S.W.2d 157, 158 (Tex. Crim. App. 1977) (“The defendant’s counsel may either file a pretrial motion to suppress evidence or he may wait until the trial on the merits and object when the alleged unlawfully obtained evidence is offered”). The importance of the timing here is that you want to make sure (1) that the officer is long gone from the courthouse by now and can’t easily be called back to fill in any gaps in the state’s testimony, and (2) you certainly don’t want to give the state any time to call an additional witness at the last minute to fix their problems. You want to press the issue at that moment when you argue your objection and ask the Court to rule. If you had objected earlier on, right after you became aware of the opportunity, you would likely have lost because the timing wasn’t right. Being an effective trial lawyer requires a good poker face and lots of patience.

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         A word of caution: Some judges, even in light of the strong authority in Roberts, will NOT allow you to raise ANY motions to suppress during trial unless they were filed in writing beforehand in accordance with CCP 28.01. Article 28.01 deals with deadlines for filing pretrial motions. It requires motions to suppress be filed seven days before an official 28.01 pretrial hearing set by the court. If not filed accordingly, the judge may exclude any motions to suppress after that date even if raised during trial. If there is never an official Article 28.01 hearing, the rule arguably doesn’t apply at all, though. Also, the judge still has discretion to allow a motion to suppress to be raised after the deadline for good cause. The takeaway is this: Pay attention to your pretrial settings; if none of them are official 28.01 hearings, then you are on solid ground for raising an oral motion during trial. If you practice in a jurisdiction that follows the code in this manner, file a written motion, but remember: You don’t have to give away the house. All Article 28.01 requires is a written motion. It does not dictate how specific it must be or how much of your argument you must disclose to opposing counsel. I suggest a generic motion citing that the evidence was illegally obtained under state and federal laws and constitutions.

4.   Trial with the right judge. Always, always, always go in advance of your trial day and ask around about who will be presiding over your trial. Then come back right before and ask again. You plan your case with the judge in mind. You should already be familiar with the judge’s tendencies on rulings and inclinations on potential punishment. This is the only way you can properly prepare and advise your client on the best course of action. Nothing can screw up your plan and your advice to your client more than walking into the courtroom on trial day and seeing a different face in that black robe. Sometimes you are delighted, but many times your stomach sinks and you are knocked off balance and scrambling to figure out a solution at the last minute. As defense attorneys, we are usually the last to know important information about what’s going on with our case. We must know more than the other side, and we should perform thorough “pretrial recon” to ensure we are not blindsided with a different judge on trial day. We must know this information ahead of time so that we may adjust our opportunity radar and avoid pitfalls that we may have fallen into otherwise. If not, we are unable to take advantage of opportunities, and our timing will be thrown off. It won’t be the right time, and we may lose out on opportunities we could have had.

5.   Expired blood vial presentation in trial. One good example of being patient, realizing the opportunity, and properly timing that opportunity can happen in DWI Blood Draw cases. This scenario occurs when the lab has gone through several analysts (due to them quitting or being fired), and then by the time they retest the blood to be used as evidence in trial, the blood vials have been expired for months. When this happens, we should always be aware of the issue. The state is typically not. For example, in one case we did not ask a single question on cross about whether the expiration of the vial would have caused a higher BAC. We knew the state’s lab witness would not give us a good answer. So be it. Don’t ask a question that you know (or should know) will give you a bad answer. All we had to do was make sure at least one photo was admitted into evidence that showed the vial expiration date. When the state offered the photos, we did not object and acted completely unconcerned. We did not want to draw any attention to the picture and let the state catch onto our impending closing argument. When the time came in closing, our argument went something like this:

“In opening, I asked that you please wait until the very end of this case, until now, to make up your mind. I told you that there would be something important I wanted to show you at the end that would change your mind. The blood vials used in this case had been expired for nine months before the lab tested them. How is that okay? That is like a person going to a doctor and the doctor telling you that you may have cancer and need to have part of your organs removed to stop it from spreading. They tell you that they will do a blood test, and based on the results of that blood test he will decide what surgery to perform. You find out that they took your blood in old or defective vials and then let the vials sit around for even a couple months longer before it was analyzed. Now he comes back and tells you that you should trust the blood result completely . . . from THOSE vials (point to the exhibit). How many of you are okay with that? Now in this case, the state is asking you to saddle John Smith with a criminal conviction for the rest of his life, based on the results from THOSE vials!”

        That two-word verdict was all about Opportunity and Timing!

6.   Other opportunity and timing tips for success:

a. Be conscientious about the timing of appearing in THAT jurisdiction. Know the practices of the court, know the staff, the prosecutor, and the judge before you start any proceedings. You won’t get many opportunities, and the timing won’t be right if the first time you see any of the faces in the court is day one of your trial. You probably don’t want to raise a novel issue in the wrong place at the wrong time with the wrong judge in the wrong jurisdiction. Make sure the timing works for you and your client. Also, with respect to plea bargains, sometimes you must wait, wait, and wait some more until the stars align and all the right people are in court one day. Timing is key!

b. Know when it’s time to stop talking. I’m constantly amazed at opposing counsel, colleagues, and even at my­self when we don’t know to keep our mouth shut—whether things are going our way or not. When more ar­gu­ment is just making things worse, or we have already won, and you can tell that the judge’s mind is made up—that’s the time to stop talking. Nothing more needs to come out of our mouth. Talking too much doesn’t always create more opportunities for yourself, and the timing of your additional arguments may just kill your chances.

c. Knowing when to argue and jump up and down about a state’s continuance. One last comment on timing and opportunity. Remember, we work in an adversarial arena. From time to time, however, we need favors from the state—and the state needs favors from us. When you have asked for a few continuances on a trial case and the state has asked for none, don’t jump up and down and scream and holler the first time the state comes to court on trial day and they have an officer out in training. You certainly don’t have to announce that you are “unopposed,” but now is not the time or the opportunity to try to take advantage of state witness problems. Oppose the motion on behalf of your client and let the judge decide. Sometimes the judge will surprise you and start grilling the state about their continuance, and it may end up going your way. Now, if you have always announced ready and the state continues to show up on trial day with excuse after excuse, that is the time to take advantage of an opportunity to try to have the state’s continuance denied. Too many lawyers argue and oppose things when the timing just isn't right and there is no opportunity. Sun Tzu teaches us: “Even the finest sword plunged into salt-water will eventually rust. He will win who, prepared himself, waits to take the enemy unprepared.” You can rarely force a good opportunity into existence.

There have been numerous cases won during trial because the trial warrior announced ready and then seized that one opportunity at just the right time. This only comes through tremendous planning and preparation. 

There have also been numerous trial cases dismissed on or just before trial day because the lawyer’s timing was right on, and he took advantage of an opportunity that presented itself. Remember the teachings of Sun Tzu as they relate to our art and subduing opposing counsel: “Supreme excellence consists of breaking the enemy’s resistance without fighting.”

Fate whispers to the Warrior, you cannot withstand the Storm. The Warrior whispers back, I am the Storm!

—old Viking battle cry