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Serial's Lessons for a Trial Lawyer.

Posted by Dev Sethi | Dec 19, 2014 | 0 Comments

Serial

Well.  It's over.  After 12 riveting episodes we are left with so many questions and only a little certainty.  At the top of the "Things We Know" list -- MailChimp deserves a strong look.

I was immediately hooked on this serial.  If you have not yet listened, you can do it online or download it directly to your phone.  It's compelling, and it's perhaps the deepest look into the jury trial and justice system since the OJ case in 1995.  That alone is a good thing.  But there are very real, practical lessons it teaches us, especially lawyers.

  • Perspective is important.  Millions of arm-chair detectives and advocates have weighed in on the murder of Hae Min Lee and the trial of Adnan Sayed.  Countless articles, blogs and reddit commenters have raised new questions and thought about new ways to look at the evidence.  It is this diversity of viewpoints, life experiences and ideas that makes Serial so compelling and raises the stakes so high.  Real questions about how the facts were developed and how they were treated at trial have stirred the waters.  What was so clear to one person takes on a whole new meaning when discussed by another.  Serial has essentially become a huge, communal focus group with 1,000,000 participants.  The reddit discussion board, alone, has over 30,000 commenters!  While we do not always have the luxury of a focus group before we try a case, gathering the perspective of others before starting a trial is essential.  This can come from the barbershop, beauty shop, or bar...or anywhere in between.  Spend a few minutes sharing the facts of your case and strategy with the folks you see in everyday life.  They will quickly point out things that you have not yet thought about.  And that may make all the difference in your case.
  • Tell your client's story.  The prosecutor clearly defined Adnan as a deceitful character.  They contrasted his behavior with his family and community against his behavior at school and with friends to create the sinister image of a lying, untrustworthy, Pakistani.  There were several problems with this approach -- for starters, Adnan was not Pakistani.  He was a natural born US citizen.  More, what the prosecutor framed as duplicitous behavior was, when you hear the entire picture told, the average, run of the mill behavior of a first generation immigrant child.  Ms. Gutierrez missed a real opportunity to educate the jury on the cultural overlay of Adnan's life.  The decision not to share the news of his school activities or accolades, for instance, had less to do with a psychopathic nature and more to do with struggling to balance the uneasy intersection of his two worlds.  It is a familiar story to any number of immigrant families.  His lawyer allowed an unflattering narrative to be imposed onto Adnan without affirmatively telling his story.
  • Memory is a funny thing.  Very early in the story, our guide Sarah Koenig, comes to a pretty important conclusion.  People forget things; memory is unreliable.  They especially forget things if there is no trigger or important anchor surrounding what they are trying to remember.  This is true after just a few weeks -- let alone after the 15 years that have passed since Hae Min's murder.  Often in our search for the facts of a case, we place too much importance on eyewitness recollection.  And on the other hand, we are quick to criticize a witness -- or party -- for forgetting.  In reality, life moves pretty fast.  Sometimes people simply forget.  And other times, people supplant what they think must have happened for what they can't recall.  Take this test -- pick a random day two weeks back.  Retrace your steps...precisely.  How confident are you?  Or this -- pick an important day in your life...wedding, graduation, death of someone dear, a day of note.  How certain are you about exactly (exactly) what happened and when.  We would be wise to keep this in mind and to educate the jury on this reality.
  • Things don't always add up.  Even when memories are tested close in time to an event, and when there is great faith in the accuracy of the memory, there are often gaps.  Asia McClain, for example, appears to provide Adnan with a rock solid alibi, though it is ignored by his lawyer.  On closer examination, her story conflicts with objective facts.  She reports remembering the day precisely because a strong snow storm blew in and there was no school the next day.  The weather report, though, showed no snow.  But true to her memory, there was no school the next day due to a scheduled holiday.  There will most often be inconsistencies.  The trick is separating the important ones from the artifact.
  • Simplicity is key.  It's less important to show off all your knowledge than to directly, clearly, and concisely share what is important.  This is one of many lessons Christina Gutierrez, Adnan Sayed's trial lawyer, teaches us.  Her treatment of the cell phone towers is an example.  They probably mean something...and it is probably helpful to the defense.  But by the time she is done presenting the evidence, the importance is lost and buried.  Be simple and be direct.  Be clear with what is important and why it matters.
  • An aggressive cross is not the same as an effective cross.   This is perhaps the best lesson from Ms. Gutierrez.  It comes across so clearly as we listen to her cross-examination of Jay and cringe in unison.  Angry, aggressive, disorganized and repetitive are not the hallmarks of an effective cross-examination.  Before you can get angry with a witness, you need to give the jury a reason to be angry with them, too.  Simply yelling at someone in the witness box is not enough.  STEPPING OUT!? WITH ANYONE?!  Not a good approach.
  • Find your authentic voice.  Much has been made of Sarah Koening's casual, open narrative style.  It is distinct and feels very authentic.  It does not come across as calculated or affected.  Contrast her style with Ms. Gutierrez', which, to me, sounds like what a stereotypically tough lawyer  "should" sound like.  For all I know, the courtroom presentation voice is Ms. Gutierrez' voice.  And if so, that is okay.  Though I think it is ineffective.  Regardless, find your own style, approach and voice.  Do not try to cloak yourself in what you think it should sound like, or what someone else sounds like.
  • Show, don't tell. Another brilliant stroke in Serial is the show, don't tell approach.  Facts are revealed in an organized structure that leads to a satisfying, "Ah ha!" moment just before Ms. Koenig wraps it up for us -- in the rare instances that she can.  No one likes to be told what to do or think.  And the producers respect that here.  The story develops with layers of facts that lead us to arrive at (the few) answers on our own, and just before the narrator presents them to us.  That is a very satisfying feeling, and it makes an otherwise passive listener feel involved.  Try cases the same way.  Allow jurors to discover the answers -- that you want them too -- on their own by presenting the facts.  Don't simply force a conclusion onto them.
  • Be on your best behavior.  By Serial's accounts Adnan's first trial was going very well for the defense until a mistrial derailed it.  The judge declared a mistrial after Ms. Gutierrez got into an argument with the judge, which was overheard by the jurors.  While a white noise buzz does play in the courtroom during bench conferences, jurors are seated just a few feet away and can often hear what is going on.  They can certainly see the body language.  In the heat of battle, it is important to remain mindful of what you say, how you say it and who can hear and see you.  It's not overstatement -- had Christina Gutierrez not lost her temper in court, Adnan's life could have been completely different.
    Reasonabledoubt
    Perhaps this exhibit would have helped.
  • Keep your eye on the burden of proof.  My own conclusion is that I do not know if Adnan Sayed is guilty or innocent, but I believe that reasonable doubt existed to acquit him.  I wasn't in the courtroom for the entire trial, and I am not critical of the jury.  But I believe that the importance of reasonable doubt, and the relevant jury instructions, got short shrift from the defense.  Jurors come the courthouse uncertain of their job and unclear on their duties.  An effective trial advocate must take time to educate and make clear both what the jury has sworn to do (the law) and what he wants it to do (the result), and he must make it clear how the two are one and the same.

In the end, Serial is a wonderful exploration of a horrible tragedy.  Every listener has compassion and heartbreak for Hae Min Lee's family.  While it raises painful memories for many involved, it is a very worthwhile story to tell.  And it raises important, and sometimes troubling, questions about the investigation, trial and Adnan's involvement.

For entertainment's sake, alone, the podcast is worthwhile, but if you keep your ears open it will teach practical and valuable lessons.  That much I know.  What I still don't know is whether there was a pay phone at the Best Buy.

About the Author

Dev Sethi

Dev Sethi litigates and tries a wide-range of complex injury and death cases throughout Arizona. He has Martindale Hubbell's highest rating, AV, and he is listed in "Best Lawyers." Dev is also recognized as an Arizona Super Lawyer in the area of plaintiff's products liability litigation.Dev has been at the forefront of auto product defect litigation. He played a key role in uncovering the Goodyear Load Range E tire scandal and worked to hold Ford Motor Company responsible for the danger posed by their now notorious 15-passenger vans. Dev is currently representing families in product liability suits against the nation's largest corporations including General Motors, Ford, Pentair Pools and Invacare.

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