This is the third portion of my conversation with U.S. District Judge Thomas M. Durkin. The first two sections in previous “Mediation Circus” columns, explored trial strategy, negotiation tactics and evidence preparation. For this final portion with my former classmate, we’ll dive into a few final pointers on embracing courtroom technology, acing criminal proceedings and what tunes he rocks out to away from the courtroom.
Panter: Any other advice for lawyers?
Durkin: You need to make your case interesting. The older lawyers get, the younger their jurors get. They are technologically savvy, so they do not appreciate a lawyer getting up, “Oh, I’m sorry. I don’t understand technology,” and “I don’t care,” as if it’s charming or somehow endearing. No, it’s infuriating to a jury.
It is no longer the charming old rogue of a lawyer who says, “I don’t go out for any of that technical stuff.” Well, the jurors do. They expect PowerPoints. They expect documents being displayed on screens. They expect highlighting of documents on the spot. They expect magnification or blowing up of portions of documents so they can read them.
The other advice I give is when people use their technology and put documents up on a screen, they will often flash them past the jury so quickly that they don’t get a chance to read the whole document. It’s nice to have a document up on a screen where a witness can review it and talk about parts of it. But it is also smart to have a binder — a hard-copy binder — of key documents that a jury can go back and review at their leisure.
When they’re bored and they’re not listening to a witness, they can look at a binder of documents and maybe read them. …
Multiple 4-inch binders stacked on a juror’s chair are not helpful, but a thin binder of the five or 10 key documents in the case is helpful.
No matter how big your case is, there’s always five or 10 key documents. Having those in hard copy with a jury will often be helpful, because going back to the contract, the codicil or amendment to the contract, the key e-mail, allows the jury to look at it when they’re not listening to other things.
While they’re sitting there while you’re at sidebar, they can be doing that.
The other thing I do, I let jurors talk when we’re at sidebar. I tell them, “Don’t talk about the case, but you can talk about anything you want.” They love it because it’s a break. They often get friendly with their other jurors.
We sometimes have to tell them to quiet down a little because the court reporter can’t hear us at the sidebar. There’s nothing worse for a juror than sitting there silently watching the backs of everyone as they whisper about something. They often feel it’s evidence we are trying to keep away from them. When we do a sidebar, we have a white-noise machine that goes on so the jury can’t hear what you’re saying, but we allow them to stand up, stretch, talk. If they do that, sidebars aren’t nearly as long and as frustrating to them. The jurors really appreciate it.
Panter: You hold the sidebars in the courtroom?
Durkin: Sidebars are in the courtroom. We have a microphone at the side of the bench, and the court reporter puts on the white noise where she can hear because of the headphones on. She can hear exactly what’s said at sidebar, but I’ve sat in the jury box to test when the noise is on. You can’t hear what the lawyers are saying.
Panter: Do you have headphones?
Durkin: I don’t. We don’t need them at sidebar, but the court reporter doesn’t pick up her machine and go over to sidebar. She just flips a switch and the mic that’s over at the side of the bench will pick up what people say. She can hear it because she has headphones on, and the jurors can go about their business without worrying about us at sidebar.
It’s a great technological advance from the old days where either we’d have to go out in the hallway and the jurors would be left in the courtroom by themselves, or we’d have to excuse the jury while we do it — both time-killers and not helpful to the jury. This, we can get them done very quickly.
I tell parties, “I don’t get upset at sidebars. We do them quickly. I’d rather you go to sidebar to warn me about a piece of evidence you in your heart know I would probably have a problem with if I heard it without an objection.”
I think the key that most judges want to follow is making the experience as good as possible for the jurors.
Beyond creature comforts, the presentation of evidence and the way in which the trial is conducted and minimizing delays for them is key. In the end, they are the most important people in the courtroom. Lawyers sometimes forget that. Judges sometimes forget that.
More importantly, having talked to a number of jurors, this experience for many people is the most important thing they’ve done in their lives outside of a marriage or a child being born. They take their responsibility extremely seriously.
In a criminal case they live with this decision probably more than they do any other decision they make in many other aspects of their lives. They want to get it right. They feel this way in all cases, but especially in a criminal case where they understand the consequences where someone may go to jail.
If we don’t do everything we can to make them comfortable that they are making the right decision, we haven’t done our job. That’s my goal.
Panter: One case that you’re particularly proud of?
Durkin: The most interesting case I had as an assistant United States attorney were the 1st Ward cases, where Bob Cooley, who was a lawyer, came in unprompted to cooperate with the government.
Through the FBI there were some creative actions to develop evidence and put contrived cases, in the system of people who we had predication to know they had taken bribes in the past from Cooley.
I thought that set of cases … had a huge impact. Not quite the impact of Greylord, which was stunning, but an impact on a different group of people, the 1st Ward crowd, and their hold on the political and judicial system in Chicago.
I thought it had a pretty big impact on breaking that grip. That was through the efforts of Bob Cooley and the FBI. I was happy to be involved in those cases.
The second set of cases that I thought had a big impact were the undercover projects at the Board of Trade and the CME, where undercover FBI agents went down and acted as brokers and locals and developed evidence of some widespread cheating that was going on.
I don’t think it was the impetus for electronic trading, but it certainly I think sped the change. Some people say that’s good. Some people say that’s bad. I don’t know. I think the prosecutions were a good thing. Whether electronic trading is good or not is up to the people who do that for a living.
Panter: What about in private practice?
Durkin: I found, frankly, the small criminal cases I did as a panel attorney on the federal defender, were the most satisfying cases I had.
I had clients who had never, frankly, had good lawyers much of their lives. They were fortunate enough not to get me but to get the resources of Mayer Brown to represent them. I often had associates helping me, and I thought we did a good, professional job for people who never had good lawyers before.
It didn’t mean they were found not guilty. It didn’t mean they necessarily got the deal they hoped, but I thought they got the best representation they could.
Panter: Any other good stories of a mediation, of a negotiation, of a plea bargain, anything where you saw some lawyer do something interesting, creative, effective?
Durkin: When I was prosecutor and then as a defense attorney, there were what are called pitch meetings. You go in and pitch your case to the U.S. attorney or the supervisors in the U.S. Attorney’s Office. It’s an effort to either get them to drop the case during an investigation, give you pretrial diversion, which is a basically unofficial probation where if you stay clean for a year there will be no prosecution and there’s no record of your being prosecuted or a misdemeanor plea or a felony plea, a felony plea with no jail or a felony plea with a negotiated sentence.
I witnessed hundreds of those in the U.S. Attorney’s Office. I participated in dozens of them as a defense attorney.
The best lawyers often don’t get credit for the good work they do because their best work was done by preventing someone from being indicted, whether it be a company or an individual.
We never hear those stories because they can’t tell them. That would violate the confidentiality of the negotiations and would be counterproductive, because their clients’ goal was to not become known.
I’ve seen some excellent presentations by lawyers. They point out the flaws in the case of the government. They do basically their own shadow investigation.
When they learn what the allegations are, they go out and replicate what the investigators did and, more importantly, they do new things that the FBI or other investigative agencies didn’t do.
They put it all into a concise memorandum and present it to the U.S. Attorney’s Office and make them think, saying, “That’s a point we hadn’t addressed” or “That’s an issue we are unclear of.”
It could. on the one hand. be something where they have doubts about the guilt of someone. That’s a home run if you can convince them of that. Often, though, it’s not that. It’s just doubts about whether they can prove their case beyond a reasonable doubt in light of things you raised.
Those presentations are what the best criminal defense lawyers do and, frankly, what the best prosecutors listen to, because they look at it with an open mind. They don’t just view it as a meaningless exercise. They look at it with an open mind and evaluate whether it’s a strong case or not.
The best thing I ever did as a lawyer, my proudest moment, was for a large corporation where I convinced the government to settle a criminal investigation civilly.
I won’t go into it, but it was a huge corporation, and there were dozens of individuals the government wanted to talk to, and I had to get them lawyers, and I was able to arrange competent attorneys whom I worked with and where I trusted their judgment. They represented their clients well. None of the individuals nor the corporations got indicted.
We left no stone unturned and made a pretty lengthy oral and written presentation to a variety of people within the government and convinced them in the end not to charge the company.
I did that, but I’m not unique. Every good white-collar criminal-defense attorney has done this.
I’ve made presentations to the SEC and convinced them not to bring charges against clients. It’s often your advocacy skills in a one-on-one meeting or a group meeting with law enforcement. It’s got to be well-prepared. When you’re successful, you feel like you’ve done a good job.
Panter: Three effective persuasion techniques when you’re doing that?
Durkin: One is not being bombastic, instead being humble; recognizing they have all the cards and you don’t, and that they can be mercurial if you’re being a jerk. That’s one.
Two is don’t blow smoke at them. They know their case, and if the head person talking to you doesn’t know it, the investigator sitting with him does know it. If you try and misstate the evidence in any way, you’ve lost credibility and you might as well pack your bags at that point. You have to go in with a little bit of humility and a little bit of reality.
The third is, in my mind, make a written presentation along with your oral presentation, because the written presentation can be circulated among people at the meeting. A good written presentation, as long as it’s a document protected under any kind of negotiation privilege, allows them time to contemplate your message.
Panter: Tips on negotiating one of those conferences? Do you start off with a suggestion? Do you make an offer?
Durkin: In general, I think it’s no different than sentencing. If you ask a judge for an unrealistic sentence, by definition you won’t get one because it’s unrealistic.
Panter: Are you talking about the defense attorney coming to the judge with an offer?
Durkin: There’s no plea discussions, but at sentencing, saying, “Judge, the government is recommending 10 years. We respectfully think five years is an appropriate sentence.” I think in all matters of representation, whether you’re presenting it to a judge or representing it to a prosecutor, if the lawyer comes in and says, “My client deserves probation,” when it’s clearly a jail case, it’s no more effective with a judge than it is with a prosecutor. Go in with something that the prosecutor will at least not laugh at.
It’s like any negotiation. It’s one thing when the other side has something you want and you start low, because then the person won’t walk away. The government can walk away because they don’t need that. They can walk away, and a judge can frankly reject an unrealistic argument.
You’re not negotiating from equal positions when you’re dealing with a judge or you’re dealing with the prosecutor’s office — unlike a commercial negotiation, where the other side may have something you want and you have something they want.
In those cases, you can start unrealistically low at that point, and they won’t walk away because you still have something they want. …
When you’re not dealing with someone who will ever take an unrealistic offer, don’t start with one.
Panter: Any other tips to a defense attorney asking the judge for a more lenient sentence?
Durkin: I think you have to humanize a defendant. The best presentations I’ve had from defense lawyers are ones that talk about similarly situated defendants who received lower sentences than what the government is demanding. Humanizing the defendant, pointing out the unique aspects of what their life was like.
I think in most cases if there’s something other than greed that motivates what the person did, point out what it is — whether it’s an addiction, whether it’s mental illness, something that put them in a position where it may not be an excuse for their conduct, but at least a reason for it.
Panter: Tell me something that people don’t know about you.
Durkin: I’m an obsessive Jethro Tull fan — I have seen Jethro Tull perform over 35 times, and continue to see the remnants of the band through today.