“DA-AAAD!! Who would ever want to hire a lawyer who needs to advertise?!?”

That’s the punch line. Now, here’s the joke: for over a decade, our little law firm had served as the primary public defenders for Island and San Juan Counties. It was tough work, riding ferries at 4 a.m. between the islands during huge winter storms, answering emergency calls in the middle of the night for months on end giving advice to alleged drunk drivers, handling giant murder cases that dragged on forever for $400 a pop, trying every major case that came along while the private guys quietly gouged their clients with exorbitant fees before pleading them guilty without first mastering their cases (my wife told me to put “J/K” after that, but I’m not.)

Still, we loved what we did; I like to think of public defense as practicing pure law. I know that not everyone sees it that way, but if you really think about it, when you are a public defender, money is not your main concern. You know that you won’t get paid what you are worth so you get used to it. Instead, you focus on the actual work: the legal representation of your clients. You never (as in never ever) have to talk to clients about paying you. Because they don’t. Instead, the government begrudgingly pinches a few pennies your way, no doubt left over from their huge road improvement fund, from which kickbacks for local officials are laundered (j/k).

All this self-sacrifice and crusading for underdogs can make you a bit self-righteous. We used to sit in court and mock the “private guys”. They never knew which forms to fill out as they pranced around court acting as if they owned the place, yet unsure of where to sit. We were merciless in our backstabbing. Which is why I go to great lengths now that I am one of those lame private guys to show some respect for the PD’s. As I have said repeatedly in this blog, they are often the most knowledgeable people in the room, especially about the local court culture. You’d be amazed how much that varies from court to court.

Eventually the lack of funding made it impossible for us to handle only appointed cases, so we branched out. We started taking private cases since we had to pay our bills. I want to state right here that we work very hard to be fair and reasonable with our fees now that we are private. My hourly rate is way less than many lawyers out there with half of my experience, to be frank. Just yesterday I talked to a frantic parent about their kid for over an hour. For free. I just can’t help myself sometimes, even if my wife (and law partner) makes me repeat after her occasionally, like a little kid, “We do not work for free.” But it sure makes it easier when you do. You worry about the cases, not the unpaid invoices.

So it was with much trepidation that years ago we bought our first Yellow Pages ad. As advertising “newbies” we were able to get a huge discount on the entire back cover of the phone book (remember those?). We spent hours worrying about it, trying to come up with a design and message that did not embarrass us. No popping wheelies on motorcycles on late night TV for us. No. Instead we created an antique scroll, invoking ancient legal texts, with a “Client Bill of Rights” handwritten on it. Rights like being billed fairly and having lawyers who were dedicated to their case. We were so proud of the finished product.

Until I showed it to my seven year old son. He took one look and uttered that phrase, “Who would ever want to hire a lawyer who needs to advertise?!?” I blanched. Cut to the quick by a kid. Typical.

He was right.

That kid is now in law school, but that’s another story. The fact is that in the two decades since we bought that ad everything has changed – and it makes me sick to my stomach. Lawyers used to have some class. Say what you will, there were standards. We went to enormous lengths to be accurate and truthful about our back cover, to only say what we could back up. Not write checks we couldn’t cash, as my Dad used to say.

Today? Not so much. Lawyers brag and exaggerate and embellish with impunity. Not about their clients. About themselves. I was in court recently when a young lawyer was acting just like those lame private guys I remember from the old days. Lost in the courtroom, unable to fill out an Omnibus Application, something so simple a chimpanzee could do it. He needed help and the old PD in me felt compelled to assist. He was so grateful and gave me his card.

When I got back to the office I checked out his website. There, all over the Internet he was, proclaiming himself the “best new lawyer” in Seattle, complete with (no doubt) fake client reviews. A guy who had trouble filling in blanks on a form is the best criminal lawyer in Seattle? Not. So. Much.

It’s everywhere. My personal favorites are the web addresses, ones like: “” In the old days the Bar Association would have sanctioned you for that. It is unethical to make such claims. Now? It is very clear to me that the Bar has given up, abdicated their responsibility to keep lawyers honest when it comes to advertising. Why? Simple. They can’t keep up with the deluge of false and puffed up advertising. Its all over the Internet.

The fact is that lawyers who don’t have much work have tons of time to invade Google with information about themselves. The less real legal work they are doing the more time they have to take advantage of all the social media and Internet exposure that is out there just waiting for them. I know that could be said about blogging, but I really do try to talk about interesting or useful things. I avoid calling myself the best, even if it’s true. J/K! Not really.

So, there it is. My rant against my fellow lawyers, the ones who spend more time on self-promotion than they do representing their clients properly. Sorry guys. It just makes me so crazy I could scream.

But I don’t. It would do no good. No one would listen. But I wish someone would do something about it. Which is why I am writing this; to warn people. Don’t believe everything you read. Especially online. Especially when it’s a lawyer’s advertising.

Before you place your trust (and life) in the hands of a lawyer, dig down. Ask questions. What kinds of cases have they handled? How did those turn out? What will the lawyer do or not do or be able to do or not do? What is their prior experience with cases like yours?

Oh, and one last, VERY IMPORTANT thing. If a lawyer ever promises a particular result in a particular case (e.g. “I can win this trial for sure.”) TURN AND RUN AWAY. There is no way that some of the promises I see lawyers making on line are legit. Or ethical. Or correct. You can never ever predict the outcome of any kind of case worth hiring a lawyer for. IF you could then you probably don’t need a lawyer.

One final story about that particular issue, which demonstrates everything I am talking about here:

I once had a very serious case where my client was looking at over ten years in prison. We were still PD’s then. I negotiated a suspended sentence so long as my client did treatment. No jail. A typical lame self-promoting private lawyer whispered in this client’s ear that, for the relatively small sum of $5,000, he could win his case and he’d walk away a free man, with no need to do silly treatment. My client gathered his life savings together and accepted this lawyer’s offer. My former client is now half way through a thirteen year prison sentence.

I think about my son in law school. It is a very different world he is about to emerge into. Things have changed. I just hope he remembers what he said. But, after spending his life listening to me rant about this stuff, I know he will. After all, it was listening to him that made me that much more aware of what I was doing when we put out that first ad: asking people to trust us. And trust is something that begins with the truth, especially when it comes to lawyers and their advertising.

Trial Anatomy

[If you missed the first half of this post, it would be good to start at the beginning HERE. I had to cut it in half to make it more manageable, but there are just so many aspects to Petrocelli’s excellent trial work that I couldn’t leave any of this stuff out. Here is the last part of the Petrocelli post…]

Previously, I was explaining how Petrocelli’s questioning of OJ Simpson about his ‘ugly ass shoes’ worked so well – primarily by repeating the defendant’s very memorable statements back to him, and having him repeat obvious lies over, and over, and over. This really made it all stick in the minds of the jurors and made it extremely clear whenever OJ contradicted himself or just sounded so unbelievable they couldn’t look past it anymore.

Another aspect of the shoe questioning is what I call “leading the witness down the primrose path”. You don’t usually want to start right off with the point you are getting to. It’s like sending up a flare, warning the witness to be careful. It is best to work into it slowly, to seduce the witness into going where you need them to go, lulling them into a false sense of security because you are asking about seemingly innocuous details.

Petrocelli started with OJ’s shirt. He got OJ talking about how he liked the collar, how that was snazzy, something he might wear since he was such a snazzy guy. The arrogance he routinely displayed is something else Petrocelli was only to happy to bring out repeatedly in front of the jury. Acting conceited gets old when the topic is the slaughter of innocent people. Someone should have told OJ that the ultimate conceit is killing someone.

Petrocelli moved down OJ’s body, literally, prompting the former movie star to play the peacock about his own wonderful fashion sense. Until he got to those ugly ass shoes. And those photos.  They make my burnt door look like nothing. I mean, why deny the shoes unless they prove he’s guilty? They were obviously part of an outfit personally put together by OJ so that he could look good in front of a giant stadium full of adoring fans; in other words, the ugly ass shoes were obviously his. And how can a guy who only wears that fancy brand somehow find them ugly? Me? I get shoes at discount from Nordie’s Rack. For me, ugly ass shoes are a fact of life. For OJ?  Not so much.

In trials it is critical to develop themes throughout the questions and arguments, typically working from smaller to larger subjects, from less to more important, ultimately weaving them all together in your closing argument. You weave a pattern of questions into a theme, in the same way you then weave the patterns of themes together into larger themes. It sounds convoluted but it works. You are telling a story, painting a picture, creating a multi part symphony out of the musical notes called questions.

Exactly how you put this together depends on the case, of course. Here, just as Petrocelli literally led OJ down the Primrose Path building upon his shirt collar foundation to work OJ into the ugly ass shoe corner, Petrocelli also developed the larger sections of his questioning. Petrocelli forced OJ to lie repeatedly about different subjects, beginning with that broken glass, onto the ugly ass shoes, then building to the crescendo which formed the centerpiece of his case, the giant blown-up photos of Nicole, showing her face beaten bloody by OJ one Happy New Year’s Eve. Having clearly established that OJ was trying to lie his way out of the evidence when it came to broken glasses and ugly ass shoes, he led him right into lying about those photos with Nicole standing there, barefoot and terrified in the police station, with the crap beaten out of her.

Developing themes like this in trials is comparable to the mathematical concept of “fractals”. Fractals are geometric equations that describe naturally occurring patterns found in nature. A good example is found in leaves and trees. If you look closely at a leaf, it actually closely resembles a tiny tree. It has a main trunk, with smaller branches growing out of it, leading to smaller and smaller branches until you reach the end. The leaf perfectly mirrors the shape of the tree it’s on.

In trials you shape the questions in the same way. You may even structure an individual question a particular way and use that same structure to build the tree of questions in general. For example, here Petrocelli developed the leaves of questions about shoes, starting with the shirt collar and gradually working his way down OJ’s own trunk to those ugly ass shoes, gradually building to a crescendo where it was obvious that OJ was lying about all twenty photos showing him wearing those ugly ass shoes he swore under oath that he would never wear. Similarly, he laid layer upon layer of lies regarding the various pieces of evidence he asked OJ about, gradually building to a crescendo of the most important pieces of evidence. Start with pieces of broken glass and ugly ass shoes covered in blood and end with Nicole’s black and blue face covered in blood.

As previously mentioned, part of this crescendo building is the repetitive use of key words. Words in trial are like notes in a musical score. By coming back to them, again and again, ringing the bell repeatedly, they become the central chord in the music of the trial. Words are power. They stick in juror’s minds. You may notice that I have been doing exactly that in the last few paragraphs.  Does the phrase “Ugly ass shoes” ring a bell?

Another great example of this is the “Mountain of Evidence” phrase repeatedly used by Petrocelli. I loved the part in the A&E documentary where veteran reporter Linda Deutsch is talking about the “Mountain of Evidence”, literally quoting Petrocelli as if his words were Gospel.

I once had a high profile case in Federal Court in Seattle in which my client was suspected of being a central actor in an embezzlement scheme (he wasn’t.) Eventually, after many meetings and emails, I was able to convince the US Attorney that my client was a victim himself, an innocent bystander who had been manipulated by the real culprit. I used the same phrases every time I talked to the prosecutor: “unwitting participant, innocent bystander, the true victim”. I can’t begin to tell you how much fun it was to read those exact phrases on the front page of the Seattle Times, direct quotes from the US Attorney who was directly quoting me when explaining why they had not charged my client. You know you’ve done your job when the prosecutor is quoting you on the front page. It’s even better when judges or jurors do it.

For a guy who had only ever tried one case before in front of a jury, Petrocelli demonstrated real genius in the way he wove this all together. I probably had twenty or so juries under my belt before I was doing this in every case. He flooded the courtroom with a symphony of OJ’s lies. As Petrocelli himself described it, the Deposition had been an exercise in getting as many lies as possible out of OJ that he could use later in front of a jury. Now he was using them. Ultimately Petrocelli argued his entire theory of the case this way: OJ lied about hitting Nicole so therefore he lied about killing her.

Having said up front that we would move from general concepts to more and more specific ideas, now let’s get down into the real nitty gritty. The fun stuff. Pacing, for example. I love this part of trial work. It’s the part where you finally get to play the music you’ve been working on so hard, complete with the occasional improvisation. In terms of the symphony of trial, this is comparable to the staccato versus legato styling of the notes, quick fire bursts or long and drawn out. You use different paces at different times, sometimes sitting back and letting the witnesses answer at length, as Petrocelli did repeatedly in the Deposition. Other times he pushed OJ staccato style, rapid firing questions like a Gatling gun, throwing OJ off the pace of his lying. The improvisation comes in when you modify the pace in response to the witness. There are many ways to have fun with lying witnesses.

Petrocelli would also ask the same question twice in different ways:

DP:  Ever strike her in the face?

OJ:   No.

DP:  Ever hurt her?

OJ:  Yes.

Petrocelli would force OJ to be specific about the lies. When OJ talked about ugly ass shoes Petrocelli didn’t let it go. Instead he asked, Why are they ugly? What about them is ugly? When OJ lied about how he cut his hand, Petrocelli asked, “You cut your hand on a glass? How did you do that? How did you cut your hand? Did you cut it on one of the pieces of glass? On what piece?” OJ couldn’t answer because he did not cut his hand on a glass. He cut it when he was beheading Nicole.

Most important of all in trial work, Petrocelli never loses his cool when OJ argues with him. Instead he just keeps asking questions, different ways:

DP:  You were hitting her?

OJ:   No.

DP:  You were pounding her?

OJ:   No.

DP:  You made her face black and blue?

In this context he used another one of my favorite techniques. The giant glaring photo of Nicole with her beaten bloody face, right there on the easel next to OJ, for all the world (and especially the jury) to see as OJ repeatedly lied about beating Nicole in the past. Again, if he lied about not hitting her when the photo of her beaten bloody face is right there proving he did hit her, he must be lying about not killing her.

Eventually, weaving these questions together in a pattern to show that OJ was a liar, he wore down OJ until he felt compelled to start to explaining things. When that happens in front of a jury you are pretty much home free.

DP:   You strangled her?

OJ:    No.

DP:   You caused marks to be made on her neck?

OJ:    No.

DP:   You had your fingers around her throat?

OJ:    No.

DP:   You were enraged?

OJ:    No.

DP:   Angry?

OJ:    Yes.

DP:   Anger is another word for rage, right?

OJ:    Yes.

DP:   This was a violent episode, right?

Under this sort of questioning OJ began to explain himself. Petrocelli got him to say he was responsible but never hit Nicole. Huh? Remember he was saying this while a giant blown up photo of Nicole’s beaten bloody face (another repetitive use of words you may have noticed) was sitting right there next to him, Nicole impeaching him from the grave with that face.

Petrocelli continued to make OJ be specific. When OJ said that the violent episode “could have happened,” Petrocelli asked him, “What could have happened is that you put your fingers on her throat?”

Eventually Petrocelli’s refusal to simply accept OJ”s constant lies worked. OJ was tricked into telling the truth. He put his fists up in air to demonstrate how he fended her off, the ultimate explanation gone wrong. Petrocelli immediately jumped in to point out that OJ was using his fists as he explained what happened. That is twice as powerful as pretending you can’t put a pair of gloves on. Especially when your clenched fists are a few feet away from the victim’s beaten bloody face staring back at you.

There are other classic techniques Petrocelli used, like creating timelines, and then mixing them up. For example he mixed up questions to make it harder for OJ to trot out his memorized answers. He went from asking OJ “What were you wearing?” then jumped to gang fights in his youth. He jumbled up the story so OJ could not just repeat it back from memory. As Petrocelli said,  “The jury could literally see his mind racing.” Why was his mind racing if he was telling the truth? Simple. He wasn’t.

Which is why Petrocelli won. He proved that OJ was lying. And if he was lying there had to be only one reason. OJ killed Nicole. And the jury agreed.

I could write a book about this stuff, and many have. However, I have other things to talk about. I’ll come back to OJ, but it is time consuming and I have clients who need my full attention. For now, I’ll leave you with an excerpt from that Deposition that demonstrates many of the things I have talked about here. Again, I strongly recommend that anyone who is interested in this case search out the various TV shows that have revisited the case lately so that you can see for yourself. We will come back to the criminal case later and discuss the wrong way to try a case.

But for now, the civil case has everything you would ever need to know about the right way to try a case. Thanks to one Dan Petrocelli, a real lawyer’s lawyer. See for yourself:

Petrocelli: “You never struck anyone in their face, correct?”

Simpson: “Correct.”

Petrocelli: “And you never hurt your wife either, correct?”

Simpson: “No, I hurt my wife, yes.”


Petrocelli: “Did you physically hurt her?”

Simpson: “Yes.”

Petrocelli: “Did you ever bruise her?”

Simpson: “Yes.”

Petrocelli: “Did you ever make her black and blue?”

Simpson: “I think any marks that’s on her, I take full responsibility for. I don’t know what else you want to do. I take total responsibility.”

Petrocelli: “Why?”

Simpson: “Because I shouldn’t have handled the situation the way I did. I’ve—all my life with Nicole, no matter what was going on, I handled it without being physical with her. And that time I got physical with her and I’m ashamed of it. I wish it not had happened.”


Petrocelli: “You had your fingers around her throat, correct?”

Simpson: “I could have touched her neck, yes.”

Petrocelli: “What do you mean, you could have touched her?”

Simpson: “I could have.”

Petrocelli: “—violent episode, wasn’t it?”

Simpson: “Yes, it was.”

Petrocelli: “And rage is a fair description of your state of mind, correct?”

Simpson: No, it was not.”

Petrocelli: “Not anger?”

Simpson: “Anger, yes.”

Petrocelli: “Intense anger?”

Simpson: “Anger.”



I know the criminal guys got all of the attention on OJ, which is part of the reason I am focusing here on the civil lawyer, Dan Petrocelli; the one who sued OJ for Wrongful Death and won. But the main reason to focus on him is that his approach to this case demonstrates everything you need to know about the best way to try a case. Whether you are a seasoned trial attorney or a just an interested citizen, you can learn a lot about the right way to do this work by focusing on what Petrocelli did to achieve victory where others failed.

As with most things, the best way to analyze Petrocelli’s work is to begin with some general fundamentals and then move on to the specifics (just to be clear, I am going to refer to both the deposition and trial when I say “trial work”. That’s because the whole process, from first looking at the evidence to closing arguments, is “trial work.”)

Preparation, preparation, preparation. Preparation is to trial work what location is to real estate: everything. Without it you may as well pack up and go home.

Although preparation is important, it’s not glamorous. When I am working on a big trial, sitting at my desk at 4 a.m., momentarily unsure whether I have been there all night or came in super early, my hair sticking up, wearing a coffee stained t-shirt, I like to tell people, “Hey, it ain’t Richard Gere in Armani!”

It ain’t pretty, in other words. You have to slog through tons and tons of information, dissecting, organizing, analyzing and memorizing it, separating the wheat from the chaff, until you are ready to pull that messy hair out by the roots. (Hmmm maybe that explains my hair loss issues…)

Petrocelli clearly did this, even if his hair still looks great. He obviously drilled down big time, until he knew his case backwards and forwards. It’s all about the details, and in a case like this that’s huge; because the amount of information available was huge. As Petrocelli kept calling it, “A Mountain of Evidence.”

There was a mountain of evidence because it had all already been paraded in front of a prior jury in one of the longest criminal trials in history. Too much evidence in fact. The point of gathering and reviewing this evidence is to drill down on the details to find connections, inconsistencies, missing pieces and themes that help explain what happened. Why blood evidence showed up where it did. Why Nicole told people that OJ was going to kill her. Why OJ was so upset in the first place. In other words, why and how OJ killed Nicole.

This analysis is more complicated than you can ever imagine. The art (or science) of trying cases derives from mastering it all, even when there isn’t a mountain of evidence.

In law school I had a criminal law professor, Anthony Amsterdam, considered by many to be one of the best criminal lawyers in the world at the time. There were stories about how he corrected a U.S. Supreme Court Justice during oral argument when the judge told Professor Amsterdam his citation was wrong. Without missing a beat, the story goes, the professor shot back, “Your Honor’s volume must be misbound.” They checked and it was. He was legendary.

But what did this genius have us do for an entire semester in his criminal law class? Read one case. Four, count ‘em, four pages long. New York v Tompkins I think it was. We dissected it and broke it down into little pieces and put it back together again, again and again and again, until we finally started to get it. Working every possible defense theory into the facts of the case, considering every single legal argument from every possible angle, drafting endless possible jury instructions. Preparation, in other words. The idea was that if you understand how to do this with four pages of text you’d have the tools to attack a case of any size, even if it winds up taking over your life.

Petrocelli did that here. The OJ case took over his life (apparently he was so obsessed with the detail work that his power and phone lines were cut off when he forgot to pay his utility bills.) And it showed. When he got OJ in his office for the most important part of the pre-trial preparation, his Deposition, Petrocelli was ready for him.

He had memorized every statement that OJ had ever made about what happened, had scrutinized every photo, every witness statement, every piece of forensic evidence. Then he had taken it all and created a literally exhaustive list of questions to ask OJ once he got his shot, knowing in advance what the right answers were, or at least what the evidence showed.

The other key to preparation, in addition to mastering the facts, is to figure out the best style to use to get the witness to say what you need him to say. The best way to do that in a deposition is often to just let the witness talk. As Petrocelli describes it, to let him lie. In cross examination during trial you want to direct the witness’ answers. You use leading (i.e. yes/no) questions to focus the answers and make the points you need to make. That is true to some extent with depositions too, as you don’t want the witness to wander too far off topic. However, the most useful answers during depositions often come when the witness is allowed to speak freely, without any framework. That is when they trip up.

The deposition is a major tool available in civil cases, not normally available in criminal cases. This is especially true when the person being deposed is the defendant, who has a Fifth Amendment right not to talk about the case and therefore cannot be forced to be deposed (or speak to anyone at all, for that matter) before a criminal trial.

One glaring problem with the way that O.J.’s criminal defense case was handled is that he talked to the cops back when he was first contacted right after Nicole’s brutal murder. I blame Kardashian, since it appears that he was stage center in those early days and since he clearly did not understand the value of remaining silent when he read O.J.’s statement for the entire world to hear. He was probably more worried about O.J.’s ratings. Must be a genetic trait.

Petrocelli knew that O.J. talking to the cops was a giant blunder, since it provided him with tons of fodder to trip up O.J. with prior inconsistent statements, half-truths and out right lies.

Take the cut on his hand for example: a classic case of why you need to shut up when the police want to interrogate you. Instead, O.J. sang like a bird – a bird that can’t keep their songs straight. At first OJ told the police that he cut his hand in LA before he flew to Chicago. He was unable to say how or where or on what. Probably because he was lying.

Then, during his deposition and civil trial, he magically remembered he broke it on a glass in his hotel in Chicago. This is where we begin to get more specific.

Petrocelli had the original statement OJ made to the police where he said he cut himself in LA, before he was in Chicago. He knew OJ was lying about cutting himself in Chicago. So what did he do? He let OJ lie. Like a rug.

The way he did this is classic. When people lie, they often have a general idea of their story. But they don’t think about the specifics. So Petrocelli did that for him: “You cut your hand on a glass?  How did you do that? How did you cut your hand? Did you cut it on one of the pieces of glass? On what piece?”

OJ of course did not know the answers to any of these questions, because he was lying. He thought that saying he cut his hand on a glass was enough. Petrocelli knew that he would not be able to describe that in any detail, because it never happened.

He did the same thing with the shoes, my personal favorite. That’s because the shoes are a perfect example of something I call “Trial Magic.” Something mystical happens when you put everything into the truth crucible called trial. Things seem to appear out of thin air that often change everything. It can go both ways. When it goes against you it’s like bad voodoo. But when it goes your way it is magical.

I once had a month long murder arson trial that was being called a “burning bed” case. It wasn’t. It was an accidental fire, but the police were so eager to stitch up my client that they ignored anything that was not consistent with their mission to get a conviction.

Tons of internationally renowned experts had spent hundreds of hours scrutinizing the evidence exhaustively in unbelievable detail, complete with recreations and animations. Our counsel table was literally covered with photographs. I was in he middle of cross-examining the State’s big expert. Suddenly, as if guided by divine intervention, a particular photo caught my eye.

There it was. THE missing link.

I suddenly noticed that in the photo all of the experts had missed, the top of the door in the basement right under the “burning bed” was burnt. The doorframe was untouched. That had to mean the door was open during the fire. That meant a constant source of air was fanning the smoldering flames, creating a giant burn hole above it where the bed was located. That explained the burn hole, which their experts were convinced proved it was arson, because the hole was so big that they thought the fire must have been started using gasoline. But no. It was so big because it had a constant airflow fanning it from below, increasing the burn rate to the level you might find had it been arson. Only it wasn’t arson, it was a cigarette that had fallen out of an ashtray.

Ultimately it was one of the most critical pieces of evidence, even if I had to yell at the expert to force him to look at the photo and admit that I was right about my analysis. The jury agreed with me. We won.

The shoes remind me of that burn hole. There were very unusual bloody shoe imprints made by a pair of rare Bruno Magli shoes found at the murder scene, which matched an unusual pair that OJ allegedly owned. When it comes to a major piece of evidence, if you lie about it or get it wrong, you’d better not get caught. Like those fire investigators did, and like OJ did about his shoes.

Petrocelli had pinned down OJ in his deposition about the shoes. Pinning down the witness and getting them to commit to a particular position, especially when they are lying, is another super important legal skill, which Petrocelli did beautifully.

During the deposition Petrocelli let OJ sing away about how he would not be caught dead wearing such “Ugly Ass Shoes.” When he did, Petrocelli used another technique I like, repeating the phrase back to him with a sort of embarrassed but forced-to-be-accurate tone, parroting the phrase “ugly ass” as if it pained him to swear but that he had no choice since he wanted to be accurate.

“You said you would not wear those ‘ugly ass shoes’?” With a pained tone. Pin him down and hammer on the phrase simultaneously. Words are power in trial and knowing which ones to use and which ones to emphasize is key. ‘Ugly ass shoes’ is not a phrase you are likely to forget, especially when you hear it repeated back to the witness in an appropriate way by the lawyer. You ring a bell once and you hear it. You ring the bell more than once and it sticks in your memory like glue.

This is when the magic happened. In the middle of the trial, there was a recess over Christmas. Petrocelli got a Christmas present. A photographer who had covered OJ being honored at a football game had taken photos of him. Tons of them. Wearing guess what?!?  THOSE SAME UGLY ASS SHOES!

When Petrocelli had initially confronted OJ about them OJ had claimed that the one photo they had of him in those shoes was fake, that it had been doctored. Now Petrocelli had all twenty or so of those photos. This is where he used another classic trial technique. He asked about each one of them. Photo by laborious photo. Slowly dragging out of OJ the lies. Again. And again. And again. Word was that after the first half dozen or so photos, each one shown to OJ to force him to say that yet another photo was doctored, the jury began to look down at their own shoes, almost embarrassed to be taken for fools who would believe that every photo was a fake, that OJ was not wearing shoes he is clearly wearing.  In photo after photo after photo.

There is no rush to get this type of questioning over. It is like Thanksgiving dinner. You eat too much but that’s the point. You don’t forget what you had to eat. And that jury would never forget the sight of OJ compulsively lying about his shoes, over and over and over, which was a slight problem for him since those shoes exactly matched the footprints at the murder scene where OJ had walked those “ugly ass shoes” through Nicole and Ron’s blood. I guess with all the blood on them they probably were “ugly ass” by the time he was through.

Right about now it is just beginning to get good. However, they tell me that these posts should stay under 2000 words or the invisible Google monsters will get mad. I’m already well over that.  So, please stay tuned for the rest of this discussion, which will be out Thursday.


Dan Petrocelli.

What a guy! Moreover, what a lawyer! This guy demonstrates everything that is good about lawyers and lawyering. Which is great, because decent lawyers were few and far between around the O.J. Simpson cases.

As discussed previously, the O.J. trials had it all: The Good, The Bad, The Ugly… and, of course, being LA, the Beautiful People. The only thing it sorely lacked, in my not so humble opinion, was great lawyering.

Take the prosecutors for example. They weren’t horrible. But they weren’t great. Simply put, this case, and the memories of Nicole and Ron Goodman, deserved better. It’s not totally the prosecutors’ fault; they suffered from prosecutor-itis. It comes from years of perfecting “masterful” trial techniques, like repeating the same question over and over: “And then what happened?”

Or, my personal favorite, “Good Morning Officer”, followed by two hours of perfectly rehearsed professional witness testimony, delivered by a beaming Pepsodent smiling cop who has been trained to turn frequently towards the jurors, especially the more entranced women (or men), and beam those pearlies, while shrugging and smiling and ‘aw-shucksing’ their way through whatever it is they are told to say to get a conviction. Occasionally the prosecutor may need to add some brilliant repartee like, “What happened next?” But for the most part, they set their brains on auto pilot, while literally ticking off topics on their check lists, prepared by someone else, and just sit back and enjoy the ride.

It makes them lazy.

There were enough decent lawyers on the defense side, such as Barry Scheck, a fantastic trial attorney. He helped them get a not guilty verdict out of the favorably skewed jury pool, and getting that jury in place did take some decent legal work by the defense. But basically, my overall opinion of the huge defense attorney team, and that of most of my peers, was just “meh”.

Not so with Petrocelli. I admit that when I first saw him on TV, I despised him. Well, maybe despise is too strong of a word, but in those days I was so busy hating prosecutors that I couldn’t get past my inherent bias when I saw him on camera talking about how they were going to go after O.J. in a civil trial. It was insulting to my defense attorney self.

Looking back, I see that I was a bit over the top at the time, due in large part to working daily with a few especially corrupt and incompetent prosecutors up in Island County, who have fortunately all either been fired or ‘moved on’ since those days. I still fight with prosecutors daily, but I have learned to take it less personally. Well, most of the time. It can be hard when they are trying to lock up innocent people for long periods of time for crimes they did not commit. But I have learned that at times like that you have to put away your mad dog persona and drill down on strategy and tactics, objectively and thoroughly.

Petrocelli, as shown in the excellent A&E show about his work, did exactly that. He is a real lawyers’ lawyer, I now realize.

One thing I enjoy about writing these little ditties is that they keep me sharp. Not so much sharp about legal techniques and so on; my day job takes care of that. But sharp about finding out new information and making connections that had previously eluded me. This happened concerning Petrocelli, as I was researching his background just now.

Turns out I was a fan of his long before writing this; I just didn’t realize it. Didn’t put two and two together until I linked his work up online. You see, several years ago I was watching coverage of the Enron case. I know, it is a sick lawyer mind that craves TV coverage of big cases after working on them personally all day. Even right now, I have some major cases going on but still manage to relax by writing about other major cases.

It’s just my nature.

And it is obviously Petrocelli’s nature, too. Because what I saw that made me respect him so much has nothing to do with O.J.  In fact, until just a few moments ago, I did not even realize that the guy I saw talking about the Enron case was the same guy that went after O.J.

Ironically, what I enjoyed so much about his work on the Enron case was that he wasn’t going after a criminal defendant: he was going after the U.S. Government and their relentless pursuit of his client, Jeff Skilling, the Enron executive who took advantage of all those people who had put their trust in him before he basically stole their life savings.

Petrocelli was on camera, spewing righteous venom about the wicked evil U.S. Attorneys, always a fair point, and how they were railroading his client. It was a classic bit of stagecraft, working the public opinion machine with an intensity one rarely sees — unless it’s Trump talking about his hair. It was masterful, the way he was raging against the politically motivated “criminal justice” machine.  I told all of my lawyer friends to find that clip and watch it.

So imagine my surprise when I googled Petrocelli just now and realized that the righteous Enron guy was the same righteous guy who had vilified O.J. Now that is what great lawyering is all about. Going after the evil murderer so many people loved one day, attacking the precious federal legal system so many people worship the next. It’s how it’s supposed to be.

What was so great about his work on O.J.? Well, pretty much everything. You really need to watch the recent TV shows to see for yourself. From beginning to end, he was flawless. The amazing thing is that he was not really even qualified to take the O.J. case on:  he was a business lawyer. Ron Goldman’s dad found him through a civil client of Petrocelli’s, the owner of the Guess clothing company, who had taken an interest in the OJ cases (just like most of LA, and the country for that matter).

You see, for anyone who is too young to remember or who lives in a cave (hi trolls!), O.J. had been acquitted of murdering Nicole and Ron on that beautiful summer evening in L.A. That means the case was not proved beyond a reasonable doubt to a unanimous jury. However, in order to sue him for wrongful death, a civil case, you only need to prove that he did it by a preponderance of the evidence. Simply put, you have to prove that it was more likely than not that he did it, a much lower burden of proof than beyond a reasonable doubt.

The most amazing thing about Petrocelli’s work is that he took it on at all. Not only was he in way over his head, he was basically committing the entire resources of his firm to a case where there was no guarantee of ever being paid. After watching the A&E show I kind of wonder if he did this out of the goodness of his heart, or what? He obviously hoped to recover some money from the rich former football star, but it was pretty obvious that O.J. didn’t have two thin dimes to rub together after paying for his two million criminal lawyers.

It appears that Petrocelli was largely motivated by his desire to see that justice was done. Let’s face it, no matter how biased you might be (for whatever reason), there can be little doubt that O.J. did it. It’s one thing to be open-minded; it’s something altogether different to be stewpud.

That said, there are some interesting alternative theories about what happened here which are worth exploring in another post. For now I want to focus on Petrocelli and his work. I have tried to set the stage for what came next by describing who Petrocelli was and how he got involved in this case. Now that we know who Petrocelli was, we need to talk about exactly what he did. Which I will do in my next post….

Nicole Simpson

As we shall see, the O.J. Simpson criminal murder trial turned out to be a complete circus. From the “Dancing Ito’s” on Jay Leno to the wall-to-wall coverage of the ten million defense attorneys, all vying for attention in front of the cameras. It was a joke.

But the impact of the trial on the actual real world, the one off-camera away from L.A., was no joke. To this day I tell people that it changed the face of criminal law forever.

Gone were the days of Domestic Violence (DV) cases being dismissed just because the chief witness didn’t show up. You see, it used to be that when you had a DV case, literally half the time you got to trial and the complaining witness (or victim, depending on how you look at it) was a no-show. No witness, no case, no trial, case dismissed. Simple as that.

Enter Nicole, stage right, with her nearly decapitated head, a truly horrific image.

Suddenly, the pendulum swung 180 degrees. Now everyone was guilty. This is simply the other side of the same simplistic coin. Instead of instantly dismissing cases that probably should not have been dismissed, thanks to O.J., now everyone is presumed guilty. Where Defendants appear reasonable or charming, as O.J. did to most of the world before he killed Nicole, this is now seen as proof of their deceit and guilt.

The fact is that DV cases are complex. Unfortunately, too many people see the world in black and white, not shades of grey. I realize that last sentence is one giant double entendre, with both racial and DV overtones. It’s not my fault; the phrase is not new or original, but it is really, really important. Because we need to remember that it is not always easy to figure out the best way to deal with complicated human situations.

The world is never that simple.



The problem is that neither extreme view is helpful to understanding the way these cases work.

It was wrong to simply dump the cases when the witnesses did not show. Why? Because the victim might be tied up in a basement somewhere when she does not come to court. Or threatened, or beaten up. Or worse.

However, it is important to remember that DV accusations can actually be false – hard to believe, I know, but there’s this thing called the Presumption of Innocence. It’s kind of critical in our legal system. It’s what trials are all about, or should be. The FACT is that now everyone is presumed guilty the minute an accusation is made. The police know this, and so do the alleged “victims”.

Here’s an example of one extreme of a DV accusation: if you are living for free in some guy’s house, and he is cramping your style, it is a quick ticket to freedom. Freedom to live in his place for free, at least for a little while, or get him out of your hair. We criminal defense attorneys call it “Eviction by 911 Call.” Call it in, the cops arrive, you make your claim, the guy is carted off to jail.

Even if he is released, in most cases the judges will order him not to return to that address. Even if it is his house, in his name, and he is paying the mortgage or rent.

On the other extreme side, some partners who have been horribly victimized are in precarious positions, both mentally and physically, when they come to court. They may act out of fear and altered mind-states and be unable to make choices that can help themselves in the long run.

This is why domestic violence advocates can be helpful.  Most of these advocates are very well intentioned and want to help, and for all those poor victims who would have been left to rot while tied up in basements prior to O.J. they are a godsend. They can save lives.

However, women aren’t necessarily in need of rescue from themselves just because it is a DV case. They may actually be the best person to understand what their family needs.

I cannot begin to tell you how many times I see these women in court, beseeching the judge to allow them to have contact with their husbands, trying to work out their problems, only to be told NO! It is as if they are small children, incapable of understanding or working out their own problems. We don’t do this to smokers, or people who overeat, even though those types of behaviors can lead to death. The government might tell you where to smoke, but they don’t issue court orders preventing you from smoking. It is your choice.

But here? No way are you “allowed” to go it alone. You are deemed incapable of sorting out your own problems from the start. Unfortunately, too often advocates are former victims themselves, who see themselves in the victims they work with and lose their objectivity.

Sorry. But, it’s true. They can dominate the women they are supposed to be helping, manipulating them and controlling them in a way that is uncomfortably similar to the abusive behavior of the batterers they are supposedly protecting the “victims” from, thus causing further problems for them.



The real problem does not lie in the extreme cases. The real problem is often more nuanced.  In these cases the system designed to help DV victims can sometimes cause more harm than good.

Recently I had a typical DV case; something bad had clearly happened. However, whatever happened was between a husband and wife with zero prior DV problems. The husband was under enormous stress at work and he messed up – maybe. Exactly what crime he committed remained to be seen – another part of the problem.

You see, criminal charges do not grow on trees. Charges are arbitrarily decided by prosecutors. There is no right or wrong answer when it comes to what crime to charge someone with when bad stuff happens. What one prosecutor might see as a basic misdemeanor assault another might view as attempted murder. Don’t laugh. This happens every day; I know, because I have to come in and clean up the mess.

Which is my point: thanks to O.J., some monster who likes to beat on women and small children after having a few drinks might be stopped. Gone are the days when some good looking banker in a nice suit can smile at the sexist male judge and wink and walk out the door a free man, only to go home and have a few martinis and wale on his wife one more time. Believe me, that used to happen. A lot.

Now those poor women are more protected. That’s because O.J. showed the world that the charming guy with the killer smile (literally) up there in first class signing autographs was secretly only days away from slitting the throat of that beautiful strong woman standing by his side. Suddenly the whole world was calling B.S. on the charade.

And that was a good thing. A great thing. Lives have been saved.

But what is not so great is that the pendulum has swung way too far the other direction. Now instead of giving batterers a free ride whenever they are able to smile and wink, all of the accused are presumed guilty from the get go. Every time. And the wives and girlfriends? Once again, no one listens to them. They have no power over their lives and are at the mercy of the courts and prosecutors and victim advocates. Victims can come into court and beg and plead until the cows come home to be allowed to be with their boyfriends or husbands and it does no good, despite what the actual circumstances are.

Ironically, the same people trying to empower them have removed their power. To speak for themselves or control their own lives. Suddenly the government knows best. Every time.



Which is why I was amazed in my recent case when I made this very argument and the judge actually listened to me. The wife was a very strong woman and wanted to try to work on her marriage. She was begging to be able to be with her husband.

And incredibly, the judge agreed.

Maybe this means we are finally finding a way to place the pendulum in the middle, which is where the scales of justice are supposed to be after all. At least until some actual evidence is elicited in an open courtroom with the benefit of full constitutional confrontation.

O.J.? He made things this way the minute he attacked Nicole. Which again, has been a great thing for so many people. It would be extremely interesting to be able to figure out just how many lives have been saved as a result of his murderous rampage that beautiful spring evening, so many years ago.

But, as I have tried to explain here, nothing is ever that simple.

This is why everyone really needs to watch the recent TV shows about his cases, one criminal, one civil. If you do you will see precisely how complicated and nuanced these cases are. And, above all, how the legal system can actually be used in a productive and positive way to bring out the truth. This is really what it is all supposed to be about, isn’t it? More on that next time, when we explore the unlikely hero of this whole story, Dan Petrocelli…



I know. Crazy title. Don’t worry, I’ll get to it.

The O.J. Simpson case(s) have had a huge impact on American society, particularly the legal system, and on me personally, over the past two decades. Most recently, A&E aired an excellent piece about his cases, the trials, and the legal work that was done behind the scenes, called O.J. Speaks: The Hidden Tapes (apparently there was another show on LMN, which I did not see, but will make a point of looking for it.) I predict that a lot of people watched or will watch these shows. If you haven’t yet, you should. Try here. They speak volumes about the anatomy of an actual murder case and describe in detail some extremely good (and bad) lawyering. This is real life murder mystery at its best – and worst.

I realize that I tend to personalize these things, but with this case it is impossible to ignore. I have so many personal connections to it. Last Saturday night, my wife and I were visiting our baby girl (now 27) in L.A., where she works as a TV editor. When something came up at the last minute we found ourselves alone with no plans on a weekend night in Tinsel Town. As we were preparing to go out exploring I made the mistake of flipping on the TV and came upon the A&E show by chance. Forget it. A few minutes in and we were hooked. So hooked that we decided to forgo a fun-filled night on the town and instead were riveted for the next several hours, absorbed in a crime drama that exceeds anything Hollywood could have come up with. Except this case could not be much more L.A. – I mean that Kardashian mom was one of the real life stars of the show!

There are so many angles and issues to this that there is no way I can review it all in one post. It has it all: Movie Stars, Beautiful People, Future Reality TV Personalities, Shoddy Police Work, Brilliant and Lame Lawyering, the Innocent Pretty Boy Victim. You name it, it’s there. It is hard to know where to begin.

So, as usual I will begin with me. I can’t help it. It gives the trolls something to troll about when they call me a self-absorbed moneygrubber or whatever. But I’m not talking about being in that hotel room Saturday night, lost in our TV. No, instead I’m going to begin with the time when our 27 year old was a little 6 year old girl – a few weeks before the murders, and my family and I were flying down to Cabo with O.J. and Nicole and their kids, a trip which Ms. Kardashian even mentions on the show.

The Kardashians, young innocent Kim and all, were probably on that flight too. Of course I wouldn’t have recognized them since nobody had ever heard of them yet. It is not as it sounds: We weren’t traveling with them. We were just on a plane to go to a friend’s destination wedding. But when we took our seats way back with the peasants in Economy, I looked up and there he was: O.J. Simpson, large as life, up in First Class, beaming like a god, Budweiser in hand, somewhat ironically, with Nicole at his side and the kids eating animal crackers.

They looked like an ideal fairy tale L.A. power couple, one of the first aspects of this case that merits attention, because it has a lot to do with how O.J. ultimately may have saved lives when he subsequently butchered Nicole and Ron Goldman. That’s because his charm and smiling face betrayed the inner workings of a deranged domestic abuser and killer, something which is now argued in virtually every domestic violence case in America. The more reasonable and personable the person (i.e. man) being accused is, the more the “victim advocates” invoke the ghost of Nicole, arguing that, just like O.J., nice guys can secretly be dangerous killers (and probably are).

I remember thinking how athletic Nicole’s legs were, like a serious sprinter. I know that sounds horrible, but it’s a true story, so I might as well tell the truth. She was a very impressive looking woman, but in a strong way, someone I remember being able to imagine fighting back valiantly against her attacker when the news of her murder came out a short time later. It occurred to me that anyone who was able to do the horrible things that were done to her must have been really strong. Like a former NFL running back, maybe.

News of that murder also came at a time of great personal significance for me. We had just buried my mom, in June of 1994, when we all gathered back at the family home after the funeral and someone switched on the TV (funny how TV is such an important part of this very L.A. case). There was O.J., driving in slow motion, in his white Bronco, along the freeways and under the crowded overpasses of Tinsel Town, people lined up all along the way, waving and cheering. It was beyond surreal. The memory I have of my grieving father, who had just buried the love of his life, sitting there staring at his hero slowly rolling into a nightmare that had barely begun to unfold, will stay with me forever. It was just all so sad and odd.

This is where my analysis of good and bad lawyering begins. I will have a lot to say about this, so please bear with me. Let’s begin with that vacuous nobody, Robert Kardashian. I know it is not good to speak ill of the dead, but this is about legal skills, not a TV personality contest.

Kardashian was making a serious rookie mistake. He was reading a long rambling diatribe, apparently written by O.J., talking about what a victim he was. Wrong. The minute you say that everyone thinks you are guilty. Even if it is true, when you talk like that no one wants to hear it. Usually. Of course there was nothing usual about this case. It was to become the most bizarre and controversial murder trial in modern American history. All, of course, about to unfold on national TV on a daily basis for months on end.

I remember “screaming” at the TV (something I frequently do when watching legal shows) that he should sit down and shut up. He was digging such a deep hole, broadcasting how O.J. felt so sorry for himself, just like a killer might. But instead of making everyone think O.J. was guilty, a rift began to develop that grew over the coming year, where huge segments of the population were divided over whether or not he was guilty. Ultimately, it developed into a largely racial divide; not surprisingly, which is yet another one of so many issues in this case that it becomes impossible to keep track of them all. So, let’s stick to the lawyering.

The star of A&E’s show was undoubtedly Dan Petrocelli; the lawyer who took over and handled the Goldman family’s wrongful death civil law suit against O.J. after the criminal jury ultimately acquitted him of murder. I cannot say enough good things about this guy. It has nothing whatsoever to do with what side he was on; it never does and never should. It’s all about the work.

And Petrocelli did some amazing work here. Not to mention he basically did it for free. It’s really quite incredible. He apparently had no background whatsoever in criminal law; he was a business lawyer. How Goldmans found him is beyond me. But it was a stroke of genius.

This is why everyone needs to find these shows and watch them, especially lawyers. You might learn something. I know I did. And the first thing I learned is that there is so much going on with this case (actually something I already knew) that there is no way I can cover it all in one piece. Hopefully I have sparked some interest here and persuaded at least a few people to watch these shows. For now I am going to sign off and work on preparing a more organized approach to reviewing the significant issues raised in these trials, both the criminal and civil. It really is worthy of being a law school class on just about every aspect of trial work that exists, which is why I want to take my time.

This is just a preview of things to come. There is a lot to cover…..



“I’m the BEST BLOGGER EVER! Really! My blogs are so wonderful and entertaining and smart. Because  why? Because I am so smart. And SUCH a great writer! Did I mention that?!? Really really really great. Dickens Great. Shakespeare Great. Heck, even Louis L’Amour Great. So, Great! Let’s face it—  I’m Great!”

Sound demented? Try this:

“I’m the BEST LAWYER EVER! Really! I’m so great. I win so many trials it would make your head spin. If you hire me I am going to do such an amazing and brilliant job in court that people will weep. Seriously! Trust ME! People say I’m arrogant. Whatever. WHATEVER! I am what I am and they are all jealous. And stupid. Really, really stupid.”

Like that? I don’t. So why is it that someone who talks like that is leading the so called “race” for President right now? It really makes me wonder. But I think Donald Trump is succeeding because of two other things he does:

He speaks plain English and he just says what he wants to say.

No fancy schmancy. It works.

The reason I am writing about this has nothing to do with politics. I try to avoid that like the plague. It has to do with how to talk to people in a way that works. Lawyers use words and talk to people for a living. No matter what kind of law we practice we have to speak or write clearly and make sure people understand what we are saying. Unfortunately too many lawyers lose their point in a sea of complicated words nobody can understand.

I watched Trump give a speech in Iowa the other night. It was fascinating. He just talked. He did not pontificate or use big fancy words. He just said stuff. And you know what? People listened. Why? Because he made it easy for them. In the interests of political neutrality, I can say that Bernie Sanders does the exact same thing, which is why so many people are also coming to see him talk.

I knew a used car salesman once (no, this is not the beginning of a “walked into a bar joke”.) He liked to say that he did not really sell cars. Instead he just made it easy for people to buy them. He had a point. Trump makes it easy for people to understand him. That’s his trick: “K.I.S.S.”  [Keep it Simple Stupid.]

The thing is that most politicians speak like robots. They are trained to say certain things certain ways using certain words. The whole thing is so scripted and unnatural. Unless they are really good at it, it comes across as fake and insincere.

Lawyers have the same problem. We have a set list of words to say and ways to say them. It even infects non-lawyers who work with us regularly, like cops. Police officers are notorious for using buzzwords. Instead of “I got out of my car” it becomes “I exited my vehicle.” My best come-back to that during trials is sometimes: “So by exited your vehicle do you mean you got out of your car?” It’s a fair question and thus can’t really be considered too sarcastic or critical. But it shows that they are reading a script, which can be helpful if I am arguing their credibility to the jury. You just aren’t as credible when you are reading a script.

Which is why politicians reading scripts from Teleprompters sound so scripted. Because they are literally reading scripts! I’ve seen lawyers do it too. I saw a real live lawyer in a death penalty case get up and read his closing word for word off of a legal paid to the jury, never looking up. They were falling asleep by Page Two. His client went down.

Instead of reading scripts lawyers should watch Donald or Bernie (take your pick; this is an apolitical piece.) Lawyers might learn something from watching these two, like how to talk to an audience. Whether you are talking to a jury or your own client, plain English is the best way to communicate… er, I mean, talk. They are your audience. Try talking to them instead of at them. Maybe then they will listen.

Mohamed Arrested

“Can you say Racial Profiling? Strike that. Can you say Blatant Racism??” This was my original thought for an intro to a post about what happened to that high school kid in Texas, Ahmed Mohamed, who was arrested for possessing a clock. Actually, it was worse than that. It looked as if he was arrested because his name was Mohamed.

Or so it seemed. Now it’s not so clear what was really going on here. That is very typical in my work; criminal cases are so often not as simple as they seem at first, especially when everyone rushes to judgment. My job is to dig down into the facts to unravel what really happened. We criminal lawyers find ourselves going down the rabbit hole of analysis, curious about what we might find there. Mohamed’s situation provides a perfect way to illustrate this.

This all began when the kid brought something to school to show to his engineering teacher. Although he explained that it was a homemade clock, his teacher told him it was nice but that he shouldn’t show it around, apparently thinking it might appear suspicious to an untrained eye.

Next, the alarm went off in English class. The English teacher, who probably was not up to speed on technology, became concerned that it looked like a bomb. Before long the principal had detained Mohamed with the help of some police officers. Once detained, Mohamed was searched and told to write a statement or be expelled. Ultimately, the boy was arrested and suspended for three days from school. If this were a criminal case, right away we have lots of issues that make lawyers like me very curious.

Was the search legal? Was it legal to coerce him to make a statement? Was the arrest legal, based on valid probable cause? If any of these actions were arguably illegal, could evidence be suppressed? What evidence? (The legality of the suspension is another issue, but not one that would be central to most criminal cases.)

Next you have to be curious about the motives of the police. Were they indeed being racist? If so, does that make their actions illegal? Lots of people, from Mark Zuckerberg to President Obama apparently thought so. Suddenly Mohamed was famous, being invited to the White House and offered college scholarships, which also makes me curious.

At this point it appeared that the police had probably acted illegally, arresting Ahmed Mohamed because of his name, coupled with the fact that this all occurred right after the anniversary of 911. Which is when you need to drill down further, because typically nothing is at is first appears in this world.

A central problem with the initial analysis is the “rush to judgment”, both by the police and by those who criticized them. In many criminal cases we see how the desire of the police to make an arrest quickly and “solve” the case causes them to make mistakes. O.J. Simpson’s lawyers argued this extensively in his murder trial, but it has been argued by criminal lawyers forever. Probably because it is a real ongoing problem. The invitation to the White House? Not something we see so much.

This is when the more methodical drilling down began. Enter the tech nerds, stage right, a naturally curious group. Here in Seattle, we are very familiar with techies. They fill every coffee shop on every corner. In Ballard, they practically own the place.  They do not strike me as a bunch of racists. If they were, they would have a lot of trouble working in a business where half of their colleagues have brown skin and funny names. But they are curious about technology. So, when they started weighing in about the homemade clock, I got curious.

The techies were almost unanimous in their opinion that the clock was a fake. They said that it looked like Mohamed had simply removed the inner workings of a real clock and put it in some sort of pencil case to make it look like he had made it himself. Or perhaps to make it look like a bomb? They looked at things like the circuit board, which is commercially available and did not appear to be homemade. Me? I have no clue. I’d need an expert to help me sort it out, something else that is common in criminal cases.

Next came the rampant speculation about what Mohamed was up to, faking this clock that looked like a bomb. This ranged from those who thought he was probably trying to create a problem, seeking the limelight; to those who thought maybe he was just a 14 year old kid cutting some corners to impress his teacher.

Then it got curiouser. And curiouser. Turns out Mohamed’s dad, Mohamed El Hassan Mohamed, is not some random anonymous immigrant. In fact, he is famous. He ran for President of Sudan. Twice. He also volunteered to be the lawyer for the Koran in the infamous case where that nut job minister from Florida wanted to put the Muslim holy book on “trial”, whatever that means. This is Mohamed’s father and role model. It has to make you curious about what was really going on here. This is especially true when you consider that Ahmed made comments to the effect that he was delighted with the media coverage he was receiving because he was looking to get noticed in the first place and had succeeded beyond his wildest dreams.

So, what is my point? My point is that not everything is as it seems upon your first impression. The more you dig down the more you may find yourself down a rabbit hole of curious and confusing facts, facts that have to be carefully analyzed, calmly and objectively, in the cold light of day.

Which is why this odd little story is so useful to demonstrate what criminal lawyers like me do every day:

We take something that looks simple at first, and we look again.

Once we do, we often start finding new and different ways to look at that initial information. Ultimately, we may need to bring all of this information, or evidence, into a courtroom to be examined in the light of day, without the hysteria and knee jerk reactions that cause confusion. If done correctly, we hope that justice will prevail.

What would be justice here? I have no idea. I would need to talk to the witnesses and find out much more than is available online. But one thing is clear: nothing is as simple as it first appears.






The Public Defender

Well, here I go again. Saying nice things. I know that is practically illegal to do online, but I promise to get more critical soon. Frankly, my main source for topics has previously been mainstream media, but since the only thing they seem capable of talking about right now is Donald Trump, and since I refuse to get into politics, it leaves me kind of high and dry.

So for now, I want to give another big shout out to all public defenders. It may seem odd for a private lawyer, like me, to root for people who are basically in competition with me. However in reality, there are two types of private criminal defense lawyers: those who criticize public defenders and those who know better. I am firmly in the latter group.

I know that public defenders are typically some of the smartest lawyers in the room whenever I walk into court. They work hard, know the players and are on top of the latest developments in the law. Yet, they are taken for granted, or worse, maligned as being “Public Pretenders”. My favorite is when clients say, “I didn’t have a lawyer when I was in court—I had a public defender.”

There are two slightly negative (but true) things I say about public defenders when asked by potential clients. After I talk about how knowledgeable and competent they are I tell people that, first, they are indeed overworked and, second, you cannot pick your individual lawyer the way you can when you hire one. You get whoever is assigned to your case. And, to be absolutely fair, there are good PD’s and not so good PD’s, just like cops or judges or prosecutors or barbers. You get the lawyer you are assigned to, which can be a problem in some cases.

But in most cases, you can be very confident that your PD is a great lawyer. It’s just that they don’t have enough time to spend with you.

Recent news stories about public defense shed a great deal of light on this problem. The National Association of Criminal Defense Lawyers, of which I am a proud member, released a detailed report last week regarding problems with public defense. Simply put, they highlighted the lack of funding for public defenders and the improper control judges have over them. I could not agree more.

As a prior long time public defender, and former President of the Washington Defender Association, I was personally involved in submitting funding requests as well as drafting and approving national caseload standards for PD’s. It was always a struggle to figure out how much we dared to ask for, knowing that whatever we requested, we would get less.

Focusing on the NACDL report, the issue of judicial involvement is especially troubling to me. Imagine that you were charged with a major federal crime and couldn’t afford the $100K or so that those typically cost to defend. Would you be comfortable having the same judge who is ruling to have you held in jail and denying all of your pre-trial motions decide how much to pay your lawyer to defend you? Put it another way, would it be OK if your favorite football team had its roster picked and salaries decided by biased refs who all come from the same town as your opponents? While you are playing in their hometown?

John Oliver did a great piece recently about these problems (as usual, Oliver uses a lot of profanity in his work so be warned.) He points out several glaring problems with the system, including the ridiculous approach of jailing low-level offenders for what are really financial crimes, like not paying for traffic tickets and having your license suspended as a result. People without money are unable to pay the fee required to apply for a public defender and are forced to do without a lawyer as they languish in jail. It costs way more to house them in jail than they are costing the system by not paying their fines. Where is the logic in that? Are we really so interested in creating debtors prisons in this day and age?  I am reminded of Ebenezer Scrooge demanding to know if workhouses and debtor prisons in Victorian England were still up and running. Old Ebenezer would be delighted to live in our day and age.

But the main problem with public defense is public defense. Garbage men are way more useful in the public’s view. They take garbage away. PD’s put it back. That is how most people see it. But try to imagine how you would feel if it was your life at stake. As Oliver points out, the fact that PD’s are being forced to beg for money from private charitable contributions can not be a good thing. What if the garbage men needed private donors to stay employed? We would have a serious rat problem.

This is the issue. People charged with crimes are not rats. Not unless they snitch off other defendants that is (sorry, a little criminal lawyer humor there.) People are people, and the fact that there are more of us sitting in American prisons and jails than are incarcerated anywhere else in the world, per capita, should be alarming to everyone. When those people are not provided with legal representation that is properly funded, it becomes a crisis.

We do have a crisis in our criminal justice system. So long as people are being locked up in droves, many convicted of minor property crimes, without being given access to lawyers who have the time and resources required to protect their constitutional rights, America can not honestly claim to be the Land of the Free; and until people have the courage to stand up and fight against this biased unfair system, we also have to think twice before claiming to be the Home of the Brave.

Dog and Bird








That has to be one of the World’s most Ironic Quotes Ever. It came from Rodney King, who was in the middle of two of the most notorious violent episodes in the 90’s. First, his own videotaped beating at the hands of some of LAPD’s finest. Second, the riots caused when those same cops were acquitted of that beating and South Central Los Angeles erupted in violence.

But who better to ask the question? Why CAN’T we all just get along?

I ask that question in the context of blogging and online comments. I guess I am officially a blogger in some people’s minds at this point. Who knew? But here I am, writing and drawing fire from strangers and indirectly contributing to the negativity online just by blogging. So I guess for me to ask why people can’t just get along is a bit ironic too.

When I first got into this whole blogging thing I made some rules for myself. I hated the way most lawyers were using blogging to simply advertise their services, mindlessly repeating key words to improve the chances that potential clients would find them on line by making themselves look good to the Google algorithms. I vowed instead to try to write about issues I actually cared about, where I might be able to shed some light based on my experiences as a criminal lawyer.

So I did.

But a funny thing happened while trying to share my views and provide some insight for people who did not know first hand, as I do, what it is like to work in the criminal justice system every day.  I got slammed. Slammed by angry people who apparently found it cathartic to express their own views in hostile rude ways. I am told they are called trolls. Some of the most vehement negativity came when I tried to say that lawyers are not all bad. Again, ironic.

So, I made another vow to myself, which I would like to share here: I vowed to take the high road. My hope was that by refusing to play along, I might show people that there was another approach that could work better and foster open communication. I vowed to avoid reacting with anger and venom to input with which I disagreed.

When people commented in what might be considered negative or even nasty ways, I refused to follow their lead. Instead I went to great lengths to understand their points of view and respond respectfully.

And guess what happened? It was like magic. People who began with snarky vitriol morphed into polite intelligent reasonable debaters. They disagreed, but invariably they began calling me “Sir” or telling me that they really did not hate all lawyers, despite what they had said earlier. And guess what happened then? We had a meaningful discussion about the actual issues, not about whether my mother had a questionable occupation.

It works. Try it. Old lawyers like me like to demonstrate this principal to younger attorneys. We ask them to hold up one hand, palm facing out. Then we push our own hand against theirs. Every time they automatically push back. “See?” we say. “When you push the other side pushes back  If you shook that hand instead, what would happen?”

Don’t get me wrong; I can be the most annoying push-back kind of guy imaginable, especially in court when I feel that my client is getting a raw deal.  And no doubt on this blog I am going to be snarky and sarcastic and borderline rude at times. I mean, I am what I am.

That said, my goal is to do my best to keep it civilized. A little sarcasm does not have to come in the form of a nasty rude personal attack. There are ways to disagree without crossing that line.

We see bad examples everywhere. Even Justices on the Supreme Court; just look at Scalia and his personal attacks on his fellow Justices, saying that he would rather hide his head in a bag before writing an opinion like one with which he disagreed. Really? From a sitting U.S. Supreme Court Justice? That just doesn’t sound very “high road” to me. Well, “high” maybe… (See?  You can be a bit snarky to make a point, without going too overboard. There’s a balance. Plus, I am sure Scalia will never read this, so it is hardly personal.)

Scalia’s behavior may be why the trolls feel free to go so crazy, especially when they are working in relative anonymity. I mean, Scalia was writing that in an official published Supreme Court opinion. No wonder some nameless person sitting in their recliner at home feels free to spew.

So we have to lead by example, which is what I am going to try my best to do. My goal is to encourage meaningful discussions about our justice system from different viewpoints. From this point forward, I promise to do my best not to sink as low as Scalia – another very ironic statement. He is supposed to be at the top, not the bottom of the barrel. But until we show that reasonable debate is the best way to actually open a meaningful dialogue about important issues, we will all need to think about hiding our heads in bags. At least Scalia has that much right.