Managing a very public trial in which you defended a (mostly) unpopular client must have been difficult. Can you speak to that?
The first trial of Chad Chritton lasted almost three weeks, was highly publicized, and resulted in a hung jury on many of the counts. The media coverage of the case from the beginning focused on the most sensational allegations made. If people believed those allegations were accurate, that belief would cause virtually anyone to think terrible things about my client, and I think most people rely on what is reported as accurate. So I was walking into the trial tasked with asking people to completely ignore that very natural tendency. That’s hard.
com Jessa Nglawyers Jessa K. Nicholson, U.W. 2006, is a partner in Nicholson & Gansner S.C., Madison, where she practices in criminal defense.
It made jury selection particularly important, because I was going to have to tackle the bias directly with my questions without restating the information that caused the potential bias in the first place, which is tricky. Framing questions was a delicate process, because I didn’t want to elicit answers during the open portions of voir dire that would further taint the jury pool. Even if jurors asserted that they could set aside what they had read and only listen to what they heard in court, I worried that they’d remember something they’d seen or heard that would unconsciously slant their evaluation of the evidence.
Further, for a number of reasons, there is very little opportunity for attorneys to engage in dialogue with the press to contextualize, correct, or expand on what’s being reported. I find that very frustrating.
You have advised new lawyers to “ignore the media coverage about you, if and when you have some, but don’t ignore what they say about your client – the press can be informative about the thoughts of potential jurors.” Can you explain that? How did that media coverage affect your strategy?
While I believe that any trial lawyer has to be aware of the impression he or she gives to jurors, I think it’s distracting to preoccupy myself with thoughts about whether I was misquoted or looked tired. Trials aren’t about the lawyers, they are about the evidence, and whether the evidence warrants a verdict of guilty or not. That’s where the focus should stay. That said, which facts make the news each night, and how the media approaches those facts, matters to me, because it provides me with insight about what outside observers are taking away from the testimony.
I don’t alter my presentation dramatically as a result of press coverage, but it can provide the opportunity to tweak things. If I felt a piece of evidence had been highlighted during that day’s testimony, but the news is silent, I may consider revisiting the point more thoroughly than I otherwise would have. For example, if a client testifies and the press describes him or her as “angry” on the stand, I’ll think about why the client may have come off that way, and address it in my closing argument.
The comments from the general public are enlightening, as well, because the people who take the time to post comments online tend to hold the most impassioned views of a defendant’s guilt or innocence. While extreme, the comments that speak about a defendant’s guilt prior to the trial do offer some insight on which “facts” have stuck in people’s minds and thus might be the most difficult for them to set aside if they’re chosen for the jury. I wouldn’t recommend making strategic decisions based solely on comments, but I find them one source for consideration when I’m writing voir dire questions, an opening statement, or closing arguments.
You’ve been in practice for eight years. Have you handled other high-profile cases? How did you come to defend Chad Chritton?
Yes. Since I’ve been practicing, I’ve handled a few cases that have led to televised and print coverage on a local level, but not to the extent I saw in the Chritton case. Homicides and sexual assaults tend to generate a lot of public interest, as well as any case in which the accused is a prominent member of the community.
While the majority of my clients retain me privately, I remain on a list of attorneys willing to accept court appointments for individuals who cannot afford private counsel. I was asked to take the Chritton case on that basis, and I agreed to do so.
What did you learn from this experience? Is there anything you would have done differently?
This case had a larger volume of materials and discovery documents than any other trial I had handled before, and was also the longest. Because of that, I had to learn how to effectively organize a very large amount of information in a way that was easily accessible on a scale I hadn’t previously managed, and I’ll take some of those new techniques into trial prep for future cases, for sure.
I’ve never met a trial lawyer who will tell you he or she tried a case perfectly, and I’m certainly no exception to that. I try to order the transcripts of cross-examinations I do, particularly of expert witnesses, after trials, and mark them up and make adjustments to my style for the future. I worry that jurors can lose interest during lengthy testimony that’s heavy on scientific or medical evidence, and I’m always trying to find better ways to give them information in a way that’s engaging and understandable.
You’ve said that being prepared is, in your opinion, the single most helpful thing you can do to boost your own confidence. Is there a point at which you know you’re prepared? Is there such a thing as over preparing?
I know I’m prepared when what I’ll refer to as “trial jitters” subside, and I find myself wishing the trial would just start because I am ready to get up there and go to it. When that feeling of “OK, let’s roll” sets in, I can look over my notes and know I have to walk away, because additional time with the file will just be me spinning my wheels. In most cases, prepping a trial takes me significantly longer than the trial itself does. I’d say at least two hours of prep time for every hour of trial time, if not more. I suppose that gets to the question of over-preparation.
Spending a seemingly infinite amount of time with a file can lead to a lot of second-guessing yourself, and that can get dangerous, because I trust my instincts. Re-reading material for the sake of re-reading it doesn’t make sense; you should have an agenda while you’re doing it. If you don’t, and the review is simply for the sake of repetition, I’d say you’re done prepping.
You maintain a sophisticated website and are a frequent blogger. What other strategies do you use in marketing your practice?
To me, word of mouth will always be the most effective form of advertising. I don’t think that most people hire an attorney based solely on Internet searches or the phone book; I believe people ask their friends and colleagues for recommendations and tend to rely on the suggestions they receive. So really, having satisfied clients and being respected enough to earn the trust that leads to a referral among lawyers who don’t practice in my particular niche are the ultimate forms of self-promotion. To have those things, I have to do the work, and do the work well.
Where do you see your practice in five, 10 years?
I’d like to see the firm continue to grow but stay “boutique” in size, with a strong reputation in our community. Ideally, we’d have six to 10 lawyers, all of whom have exceptional trial-advocacy skills and are known to be willing to put up a fight in the courtroom if the facts of the case call for it. Criminal defense will always be the heart of my practice, but I’d like my office to have the ability to offer civil litigation services to clients in house, especially when it comes to claims of excessive force during an arrest or maltreatment during periods of incarceration. It is extremely important to me that our focus remains on the quality of our work product rather than the number of billable hours we can generate and that we continue to be collaborative as an office. I like the familial feel of the firm now and wouldn’t want to see that change with expansion.
What advice would you give law students and new lawyers?
While you’re still in law school, try and get as much practical experience as you can. If you want to be a litigator, go watch trials. Clinical programs are extraordinarily helpful in harmonizing the more academic or intellectual aspects of the law with the day-to-day practice. I remember walking into court as a new lawyer and not being sure which table in the courtroom was for the prosecution and which was for the defense. That’s the sort of stuff that you don’t learn in a classroom, you only learn by doing. Once you start practicing, accept the fact that for your first few years as an attorney, you are constantly going to feel as though you don’t know what you’re doing. You feel inexperienced because you are, and the only way to fix that is to do the work and gain the experience.
As to starting your own practice right out of law school, honestly, my best advice is simple – don’t do it. A solo practitioner works in a sort of vacuum, without outside critique, and can develop bad habits quickly in that isolation. If you’re determined to start a practice, seek advice anywhere and everywhere you can get it. Join professional organizations specific to your practice area. Sign up for mentorship programs. Work hard to develop relationships with experienced attorneys in your field; many lawyers are very generous with their time when it comes to teaching the craft, but you should never take advantage of that kindness or use it as a substitute for doing your own research. Ask for constructive criticism.
Set a work schedule for yourself and stick to it, even if you don’t have anything to do at your office in the early days. I see a lot of solo practitioners confuse the flexibility of self-employment with the idea that you only have to work when you want to, and I think that dooms their practices. There’s a reason that well-established firms have expectations about the time their attorneys spend on cases and in the office, and the need for regular hours and fast responses to clients doesn’t change because you’re the boss.
Finally, be nice to the people you come into contact with. Not just the other lawyers, but also the bailiffs, clerks, court reporters, and other staff. View them as your coworkers. We all go to work in the same building, and all of us want things to run smoothly. When I say “be nice,” don’t be fake about it. Treat people with genuine respect and kindness, whether they’re a judge, a client, a concerned family member, or opposing counsel’s receptionist.
What path brought you to criminal trials?
I definitely wasn’t a person who grew up knowing I wanted to be a trial lawyer. I was terrified of public speaking until about my third year of law school and much preferred writing to oral advocacy probably even four or five years into practicing. While I was in college, I volunteered and ultimately came to work at a domestic violence shelter. Many of the women who stayed there had contacts with the legal system, whether they had to testify as the complaining witness in a criminal trial, go through the divorce process, or attempt to secure a restraining order to protect themselves from unwanted contacts from their abuser. My role was to provide emotional support, and even though I know that’s valuable, I found myself frustrated with my inability to advocate and speak up for them in that role. That’s when I started thinking about law school. Once I got there, I fell in love with criminal law.
I think the best criminal lawyers could work on either the prosecution or the defense side of a case (in fact, I’m the only attorney in my office who isn’t a former prosecutor), but the defense side suited me. Intellectually, I enjoyed trying to see the gray areas, the doubt, and emotionally, I was drawn to being able to stand up for the rights of the individual and help tell that person’s story.
Are there questions that people (other lawyers, media, nosy editors, and so on) do not ask but that you wish they would?
The most common question I’m asked by people who don’t work in the criminal justice system is, “How do you defend people you know are guilty?” In contrast, I’m almost never asked how it feels to defend someone who is innocent. I’d like laypeople to ask if my work has led me to any conclusions about the root causes of criminal behavior; about recidivism rates and prisons and the different and sometimes conflicting objectives that come with the pronouncement of sentences in criminal cases. I’d like to see members of the media ask me if I think they’ve covered a case in a way that presents the public with the most accurate information rather than the most entertaining or sensationalized version of the facts they can construe, and how I think that might impact our justice system.