Orange Juice and Trial Tactics

Vincent Bugliosi likes orange juice but hates OJ. When “the sun is shining brightly in the morning and the orange juice is good” he’s “in a very generous and magnanimous mood.” He was not in such a mood when he wrote Outrage: The Five Reasons Why O.J. Simpson Got Away with Murder. If you are a lawyer, particularly a lawyer in criminal law, this book is an interesting treatise on tactics, as much as a history of a famous case.

Bugliosi packs the book with entertaining observations and aphorisms. “As a trial lawyer, intelligence is important only in the sense that it allows you to play the game, if you will… Beyond that, it doesn’t get you very far at all.” He emphasized that a successful prosecutor “takes charge” of the case. “The typical incompetence that one sees in the great run of prosecutors and trial lawyers in general – inadequate preparation.” “Whenever I prosecuted a murder case, I always at least aspired to a masterpiece.”

His philosophy is to introduce all the evidence. “[T]he prosecution should always convey to the jury that as representatives of the people they want to present all relevant evidence on the issue of guilt.” “I mean, that’s what the prosecutor does in a criminal case – present incriminating evidence.” He continues, “when you have exceedingly powerful evidence of guilt, you automatically offer it. You don’t stumble on your way to the courtroom over the smallest thread in your path.” “When you know the defense is going to present evidence damaging or unfavorable to your side, you present that evidence yourself.”

“What I try to do on direct examination, basically, is conduct my opponent’s cross-examination for him, but bringing out the information the way I want it to be brought out.”

His attitude towards juries: “with almost any jury, you have to spoon-feed them.” “I never take a chance on assuming a jury is going to see something important without my help.”

I loved his advice on how to deal with a disrespectful judge:

Back in chambers he should have been told, first in a very civil way, but if this was unavailing, much more assertively, that although he had the right to speak, if he chose, in a condescending way to the prosecutors outside the presence of the jury, he did not have a right to hurt the prosecutor’s clients, the people of the State of California, in any way whatsoever in front of the jury, and they therefore not only wouldn’t permit him to do so, but had an obligation to ensure that he did not. Therefore, if he had anything negative to say to them, it had to be outside the presence of the jury. In front of the jury he had to show them the same, identical respect they showed him, nothing more, nothing less.

“I’ve always considered final summation the most important part of the trial for the lawyer.” He hates lawyers who address “the jury after scandalously little preparation.” Far too often this results in their delivering arguments which are disjointed and sterile in articulation, and which, most injurious of all to their clients, omit a number of salient facts and inferences.”

I could go on and on. There are worse ways to learn tactics than by discussing this fascinating and controversial case. But if you aren’t a lawyer, you might try another OJ book instead.

Notes

I also read Chris Darden’s book, which contains this advice from a judge to Darden:

“Calm down, he said “and make sure never to appear angry or confrontational. Don’t take these cases personally. Treat the witnesses in a dignified manner and treat opposing counsel in the same way, no matter how much you may dislike them.

Darden followed this advice and turned around a losing streak early in his career.

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