Going to trial is like petting a tiger. The only way I would know that is if I have placed my hands on a live tiger.
The Lincoln County Fair
In August 1996, the Lincoln County fair is in full swing in Star Valley, Wyoming. Star Valley is south of Jackson, Wyoming (which probably tells you nothing unless you have been to Wyoming). During summer Star Valley is verdant green with farms and pasture land from one side of the valley to the other. During winter, the valley is pure white from almost constant snow fall owing to its altitude: 5600 feet above sea level to 7000 feet above sea level. Imagine the most beautiful Swiss mountain valley you can think of. That is what Star Valley looks like.
The Lincoln County fair is a temporary event staged in a city park. The fair offers every country pleasure imaginable including constant country /western music, the smell of livestock mixed with deep-fried foods, rodeos, a demolition derby, a hypnotist show, and tigers. Yes, tigers.
The main midway for the fair is on the city’s softball fields. Near the fields, where the park has trees grass, a six-foot-high chain-link fence encloses a “big cat” display with adult mountain lions, blacks leopards, spotted leopards, and a jaguar. The big cats are lolling in grass under the shade of the large tree in the center of the chain-link enclosure. They pay little attention to what is happening outside the fence.
The display’s curator raises money to support the big cat operation by letting people “play” with tiger cubs for a fee, or if you are willing to part with more, the curator will take your picture with a bigger tiger.
I Got to Pet a Tiger
I pay the higher fee and an assistant leads me into a tent. Once inside the tent, it is clear the photo shoot area is temporary. At one end of the tent is a carpet-covered platform whose top surface is slightly lower than “butt-high” on me. When my eyes adjust to the light, I see a tiger reclining on the platform. It is not in a cage, nor is there a leash or other restraint on the tiger.
A man in cowboy boots and a straw cowboy hat stands beside the tiger, covering its eyes and feeding the tiger with a baby bottle. “How big is it?” I ask.
“Six months. Step up and sit on the edge of the platform,” the man holding the bottle says. “Slide closer so you can hold the bottle.”
I do so, and situate myself on the platform where I hold the bottle for the tiger to drink from. “How big is he?’ I ask.
“One hundred twenty pounds,” comes the reply. “She’s almost too old to use for photos anymore. ”
As I slide closer to the tiger, the man takes his hand off the tiger’s eyes, and steps out of the picture frame. I feel a rush of joy as the photographer says, “Smile.”
I stroke the tiger’s fur and ask, “When will she be too old to use for photos?” The tiger’s fur is not soft and silky as I expected. Instead it is course and wiry.
The camera flashes for three pictures and the man steps back into the frame. “At about this age, her diet shifts to meat. It makes them unpredictable, and we can’t let the public near her then.” The man covers the tiger’s eyes with his hand and takes the bottle from my hand. “Step away from the tiger,” he says.
“Is that why you cover her eyes?”
“Exactly. She will always have the hunter’s instinct. If you turn your back on her, she will pounce – even at this young age.”
Outside the photo room, I learn that my $10.00 gives me access to the tiger cubs if I want to play with them while I wait for my photo. Of course I say, “Yes.” I play with three younger cubs, barely two months old, in another enclosure. I sit on the ground. They are hunters, jumping on me and swatting me with their paws. When I leave the enclosure, scratches and bites cover my bare legs.
The Big Cats’ Instinct Takes Over
After leaving the cubs, I stand outside the chain-link fence looking at the adult cats (there are no adult tigers in the enclosure). They are still lethargic, lounging in the shade’s protection from the afternoon sun.
As if choreographed, all of the big cats go on alert, fixated on something just over my shoulder. I turn to look at what has had such an arresting affect on the big cats, what is it that pulled them from lethargy into readiness.
Behind me, traversing the open grass area passes a young man – probably afflicted with cerebral palsy. He doesn’t walk through the long grass, but struggles with his crutches and his disability to move. One leg drags, and the other stumbles forward. His head is turned to the right and his chin is raised so that he appears to look at the sky over his shoulder. His chest leads the stumbling walk as his arms weakly try to use his crutches to stabilize his gait through the grass.
I look back at the enclosure. The big cats have moved closer to the fence, their eyes not leaving the weak one in this herd.
As the young man makes the midway’s temporary buildings and is now out of sight, the cats return to the base of the tree, and again recline, content with the thought that if they were so inclined, a six-foot fence but a simple leap to clear.
For twenty years, I have thought about the lessons with those cats. In a tame setting, supposedly protected and controlled, I witnessed the call of instinct in the big cats’ eyes. I learned of the power of millennia to ingrain response to a nonchalant turning of my back. I felt the power of adaptation in the baby tigers whose paws, at two months, were as big as my hand.
But I did not learn those lessons all at once. The big cats’ focus on the young man was obvious and clear. Other lessons came later as I recounted my story of the photograph and playing with the cubs to others – lessons that I did not recognize. People would express disbelief that I would touch the tiger and not feel trepidation or fear. They were surprised that I was unafraid while feeding the tiger that was approaching the danger time. I did not recognize the danger they saw and felt in the tiger story.
Trials are as Dangerous as Touching a Tiger.
Trials developed at a time when armed conflict determined by serious injury or death, settled a dispute. As trial moved from the arena to the courtroom, many of the formalities of conflict remained. Little has changed since the middle ages. A court room is still a fearful place. Nothing pleasant happens in a courtroom. Symphonies don’t play there. Children don’t sing there. Flowers can’t grow there. Birds don’t chirp, butterflies don’t flitter, the sun does not shine there. Instead, a courtroom is a place of misery, pain, suffering, anguish and death. Why do you think lawyers dress to attend a funeral and the judge dresses in black to look like a minister presiding at the plaintiff’s demise?
Presently, I am in a trial against an attorney trying her first case. I can take advantage of her inexperience, but I chose not to. Watching her reminds me of the many mistakes I have made in the “killing pit.” But the beauty of my mistakes is that I have always tried to make them a learning experience.
Trial is like holding a bottle for a tiger with its head on my lap. Counsel sits right next to the big cats, and there is no fence. The jury is dangerous. Trial is unpredictable. As a lawyer, every time we tell the judge, “Answering ready your honor,” we approach the tiger. We can soar, or we can end up a bloody mess in the corner – and so much is out of our control.
The jury, just like the big cats in the enclosure, sits there, disinterested and upset that a jury summons disrupted their life. They may not recline in the shade like the big cats, but their interest level in you is at about the same level.
While your jury box contains five hundred years of collective experience, instinct actually drives the jury. Your big cats seem uninterested but their bullshit antennae are on full alert, looking for the weak one in the herd, the one whose story is not consistent, or the witness who broadcasts, “I am not to be believed,” regardless of whether the witness is testifying truthfully. No matter how prepared you are, or the merits of your client’s case, the cats are waiting to see the weakness that will make the kill easy.
Our challenge as trial attorneys is to present out clients’ cases without turning our back on the tiger. You can do this. You are smart enough. You know the case and the evidence. Walk in confidently, like I did with the tiger at the fair. If I was fearful, she would have sensed it and I may have been done for. Follow instructions of the cowboy. The rules are there for a reason, and they will protect you.
Respect the judge. If the judge rules against you, accept it. Don’t let it get you off your game. When the judge rules against you, don’t say, “thank you.” The jury knows what is going on and their instinct tells them, “you don’t thank someone for hurting you.” Never try to mislead the jury, or present false testimony. You’ll be like the young man on crutches with no fence to restrain the big cats. They will punish if they detect you or your client are not honest.