Good Lawyers Aren’t Cheap. Cheap Lawyers Aren’t Good.

I grew up in an innocent age of TV and movies. The heroes were the guys in the blue uniforms and the white hats. The lawyers were evil men working for evil criminals, or they were good men doing good deeds. The press was there to expose the truth, to give us the facts.

The whole truth and nothing but the truth.

What I learned about the court system was that everything happened in the courtroom. It was where all the excitement was. Paying attention because some lawyer was going to expose the truth at the last minute to make their case.

Even modern legal dramas suffer from the same tropes.

As I have been reading and listening, I’ve found that most of the hard work comes long before the jury is sworn in. The excitement is buried in hundreds of words and page after page of motions.

The problem in these pages is that lawyers have their own language. It is the language of citations and references. There are shorthand phrases and references that “everybody” just understands.

“They just filed a 28(j) letter.” What does that mean? It is a “Citation of Supplemental Authorities.” It is used to bring an opinion from a superior court to the attention of this court.

But it is a code, a code that must be understood before a case can be understood.

In trying to follow Hunter v. Cortland Housing Authority, there have been 73 different filings. Some of those are text orders, some of them have multiple attachments.

In reading some documents in the Alex Baldwin case, it became obvious to me that he had hired good lawyers. I’m sure they were not cheap.

Unlike our TV shows from above, there really should be no surprises for the Judge or lawyers in a court. If there are surprises, somebody done messed up.

In our TV drama, the prosecution says to the witness, “Are these the drugs you found on the scene?” The defense looks confused. The judge finds the defendant guilt, time for an ad, then a closing scene of lawyers high-fiving each other.

In reality, the defense would have known about that evidence from long before the actual trial began. The court would have known about it. There would be no surprises at trial.

In numerous instances, the witnesses have been disposed before trial. The parties and court know what the witnesses should be testifying too in court.

One of the common motions is a “motion in limine”. This is a pretrial motion that requests that the court exclude some specific evidence. It can also preclude certain arguments.

Let’s say that as part of the armor’s safety requirements on a movie set required every person on the set to attend three safety classes. At the end of each of those classes, the person attending would sign that they had attended that particular class.

This might be fantastic evidence that an actor was knowledgeable about firearms and firearms safety. The defense can let the evidence be presented in court, where they have to impinge the quality or meaning of that evidence.

What the defense would rather do is to make sure that the evidence is never presented in court. Thus, they file a motion in limine to exclude that evidence.

They make an argument to the judge that the evidence should be excluded, “There is no chain of custody for those records.” for example. The judge could look at the evidence and the lack of a chain of custody and determine that the evidence is too prejudicial that it is not a question of fact alone.

In the same way, defining exactly what the charge is, and how that charge will be explained to the jury happens long before the trial.

We see this happening in the Second Amendment battles. “Does the proposed conduct implicate the plain text of the Second Amendment?”. That is what the question should be. The state works hard to add complexities to the question.

Another aspect of the legal system is that the parties often submit motions for a court order. When they do so, they will frequently give the suggested wording. There are many situations where the court just signs the submitted order.

There is nothing wrong with this. The court reads the requested order, if there are no conflicts and not issues, the judge signs, and it is done.

In situations where there are conflicts, the parties submit their own proposed orders. The judge can then choose which he wants to use, or he can create his own version.

One of the biggest issues for a criminal trial is the jury instructions. The final jury instructions are created by the court, but the court will have a version submitted by each party.

Taking as an example at random, a businessman was charged with violation of New York Penal Law §175.10, falsifying business records in the first degree.

The indictment puts it this way,

The state created three counts for each payment. The first was an invoice, the second was a voucher, and the third the check making the payment.

The jury instructions then define what that crime is.

The jury instructions then go on to provide definitions. The big part of this is commit another crime. What crime?

Now, the curious thing is that the other crime does not need to have occurred in order for the intent requirement to be met.

“He intended to kill the presidential candidate.” is intent. The fact that he did not succeed does not remove the intent.

The predicate crime that the defendant was alleged to intend to commit was:

In order for that to be a crime, there must be unlawful means used.

The three potential unlawful means that the state alleges are:

1. Contributing more than $2,700 to candidate or candidate’s campaign.
2. Falsification of other business records.
3. Submit materially false or fraudulent information in connection with any tax return.

The issue was that the court stated that the jury didn’t have to agree that any of the predicate crimes were done. Did the defendant intend to contribute to much money to his campaign? Did the defendant lie on some other business record? Did the defendant lie to the state on his tax returns?

The jury didn’t have to agree on any of the crimes.

All of this is complex, I have barely scratched the surface. I write these analyses and learn more each time.