Osler's Razor

Oddly enough, I was telling this story to some misdemeanor prosecutors at my office today.

I absolutely hate the elements-focused approach to prosecution. I told them that to start a closing with an "elements list" and to lecture from a posterboard about what the state has to prove impresses only mock trial judges, and that juries hate it. "Start with your story," I said, "go right into it. Don't introduce yourself, don't thank the jury, just start with the story."

"On May 26, 2007, the defendant, Mr. John Smith, left a bar in downtown Harlingen. He fumbled his keys, because he was drunk. He got behind the wheel of his car and started off down 7th Street."

I wish I'd remembered Trifles as the name of the play because it fits: it tells the story through the details that matter to jurors. It puts it in a language, in terms that they care about. They care about the drama, not the law, and no one wins prosecutions tried to juries armed with a great case file and the law, unless they can also sell the story.

I've been discussing a related idea with my online philosophy discussion group: the idea that narrative is the structure of reality. We don't organize the details of our lives logically, regularly, or even truly categorically. We tell stories to ourselves about ourself, and the details of that life fit into a narrative, a coherent story about the world around us.

Thus, to communicate with a jury, we must merge the narrative of the defendant, the narrative in which the defendant is the antagonist, with the narrative of the juror, the one where the juror is the protagonist.

I usually end my closings by saying, "I am a law enforcement officer. I'm charged with making sure that justice is done. But I can't do that alone. That man sitting over there is a police officer. He is charged to serve and protect, but he can't see that justice is done either. I can't do it; the judge can't do it; and the defense attorney can't do it. But you can, ladies and gentleman. You are the ultimate law enforcement officers of this county and this State. You are the ones that can send a message to this defendant and tell him, No sir, no more. We won't let you drive drunk on our roads. We won't let you endanger our families. You are the ones charged with actually enforcing the laws of this State against that man, and we ask that you find him guilty."

It's got about a 50/50 success rate, to be honest. Sometimes jurors tell me that they just didn't feel that there was enough evidence, which I always take to mean that the story we told wasn't complete. The narrative lacked cohesion; it fell apart. And I vow to do better next time.
 

Wow, I wish I would have been able to attend class today. However, I don't know if it could top our New Orleans adventure. To briefly recap: AA loses my bag...still not found and I swear I watched an old lady walk off with it (of course I'm the only one in our group that actually PAID to check a bag); Taxi driver speeds the wrong way on a narrow one-way street in the French quarter by rationalizing (in a sri lanka accent?) "would you rather sit in traffic?"; Taxi driver drops us off about 1 mile from our hotel due to the first evening sports parade that I can recall in the most sports-success-deprived and party-crazy city during Mardi Gras; we walked directly through the ultimate mosh pit surrounding the parade area (because we did not think to go around the parade)...carrying all our luggage (minus my checked bags of course) and being pushed forward by severly inebriated individuals (I strategically positioned myself so that I could push through the crowd and blame the drunks behind me); when the Prof. finally arrived winded at the hotel (the 4 of us were separated), he tells the bellhop to drop dead and take his bags to his room (ok, a little embellishment, but the look said it all); we quickly check in and decide that since our dinner reservation sits back on the other side of the parade, we should go through the mosh pit again for 30 minutes (this time it's worse b/c a lady in a wheelchair is holding up traffic); some guy grabs me and decides to use me as a battering ram to get through the crowd (on a side note, I've never seen so many strollers and small children in a mosh pit and I suspected that this guy was really trying to distract me to rob me); we escaped the pit to find out that we could have just gone around the parade by walking an extra 2 blocks; the Prof.--surely done following ignorant law students--decides to skip the reservation at Antoine's and go back to the hotel; after enjoying the exquisite cuisine, we (the ignorant law students) returned to the hotel (skipping the mosh pit this time...3rd time is a charm) to find a raving Prof. pontificating about "communist" competition rules, calling me "selfish" for only caring that we got a good brief score (that was my job after all), and wishing he had picked an incompetent brief-writer (I took it as a complient anyway, although I'm sure this post and you all could show otherwise). I think the police and ambulance sirens have now stopped (at least by the hotel), so it's time to end an eventful day and get ready for a 9am round...that is if I can find some clothes that will make me pass as a bailiff (Ok, this wasn't that brief...I promise I didn't plan to type this much, but in my defense, I was emboldened by my addition to the bonafide list of commentators--I'm not sure how that happened as I'm relatively new to the Razor and I'm really just trying to become a tobacco-free RRL someday).
 

Kendall - I'm glad to hear that you aspire to perfect RRL-ness. However, I must tell you that tobacco is the source of my powers. A tobacco-less RRL would be like Batman without the utility belt, the green lantern without the ring, or Obama without the teleprompter...completely useless...
 

Kendall--

You should also know that I was RRL's coach on an eventful mock trial team trip to Atlanta. Among other things, the hold-up of a convenience store was narrowly averted.

Further, affiant sayeth not.
 

No disrespect to either you or her but I just didn't care for that class. I loved every other class. I thought that one was wasted time. I know this will be deleted but I just thought the point being made could be better made through another way.
Sorry, Prof O, you'll not like this but I just thought that you're a great professor and you made Baylor great in your own way so you don't need to underestimate your own talent because you could teach all of those classes alone. I remember discussing the classes with guests with my classmates and those were the ones we cared for the least. We just wanted the real deal from you and trusted you enough to give it to us yourself, you didn't need any back up from the undergrads.
 

I meant I didn't care for the guest speaker sessions, not the criminal practice and procedure class as a whole. I just wanted to clarify that.
 

Agreed on DTB's awesomeness. Knowing her has made me significantly smarter and probably cooler - which is far more important.

The above poster is clearly a moron. But I don't mean that in a perjorative sense.