Gray Hall II, Chapter Six

CHAPTER SIX: FILING A MOTION TO STICK MY FOOT IN MY MOUTH
I'm always putting my foot in my mouth. I met this woman recently, and I could have sworn she was pregnant. I think the rule is don't guess at that ever, ever, ever.
--Brian Regan
I speak truth, not all I would like to, but as much as I dare to speak.
--Montaigne
And others' follies teach us not,
Nor much their wisdom teaches;
And most, of sterling worth, is what
Our own experience preaches.
--Tennyson
The greatest mistake you can make in this life is to be continually fearing you will make one.
--Elbert Hubbard

Jake hated situations that involved speaking in front of large groups. This may seem ironic as Jake seemed to do so well in these situations. One would not guess that Jake hated to do this, let alone have any problems while doing so. But, deep inside, Jake suffered from a deep, intense phobia involving speaking in front of large groups? Why this deep, seemingly irrational fear?
He wasn't exactly sure, but like many people, he hated to look like a fool and he didn't want to appear incompetent. Looking bad was well, bad. For some strange reason, when he spoke in front of large groups (more than five people), he just froze up for a brief instant, despite practicing for hours, despite intense memorization, despite doing exercises that supposedly calmed people down. And when the inevitable happened, one of two possibilities would occur.
He would hesitatingly stumble in his delivery and barely get through what he wanted to say. That wasn't bad. At least he managed to deliver what he wanted, though it may have been in a bumbling manner. The other possibility, the one he dreaded the most, Jake would go into a Zen-like autopilot. The words flew quickly from his mouth. They glided without any effort.
This may sound like a good thing, but this kind of autopilot was dangerous to himself and everyone else along for the ride. This autopilot wasn't programmed to fly smoothly, but this autopilot was programmed to crash and burn. Instead of flying smoothly towards a friendly field, his verbal plane was set on a crash course into the closest available target. Anyone in the immediate area was a target.
In some cases, this wasn't a bad thing. With respect to stand-up comedy, going on autopilot allowed you to get through a routine. Dead silence combined with bad delivery made for lousy comedy. Just letting the words come out was preferable. Unless you are angry and you go into a racist tirade like the guy who played Kramer on Seinfeld. Then it was an excellent idea to just shut up and say nothing.
And yet, despite this dislike for public speaking, Jake decided to enroll in Trial Advocacy, a class that focused on effective trial communication. Basically, students in the class learned the basic techniques and tactics that helped lawyers win trials for their clients. The culmination of the class was a final trial argued in a real courtroom in front of a real judge in front of a real jury. Yes, it was a mock and moot trial (with the jury made of business school students who didn't want to be there like a real jury), but the class treated this like a real trial. What you said and how you said it counted.
Jake decided that if he was going to be a lawyer, he might as well take some classes that exposed him to the process of litigation. There was a good likelihood he was going to argue at least one case in court, so getting some practice, even if it was in a class, was better than nothing. And besides, he had to learn how to speak without flubbing one of these days. Might as well do it during law school than in real life. Law school, Jake learned during his first year, was a surreal world. Nothing was real.
And yes, Trial Advocacy was reflective of the law school experience. Once a week, students in Trial Advocacy met in small sections taught by a supposedly experienced lawyer or judge. He was suspicious of this, as Jake heard horror stories of learned attorneys and judges who didn't know anything about the rules of evidence, let alone criminal procedure. He couldn't complain too much. His Trial Advocacy small section attorney was sharp. She definitely knew her stuff. As an additional bonus, she didn't make students wear stuffy suits, one of the "requirements" for small section. Jake was one of those people who tried to avoid wearing suits as much as possible.
Jake liked his Trial Advocacy small section. The people in his small section were all friendly, all nice people that he got along with. There was Laura Chamber, a blond-haired girl who was in his 1L small section. Her boyfriend, Chris Prescott (a self-described basketball junkie) was also in his Trial Advocacy small section. She and Chris Prescott were as close to inseparable as possible. Jake thought they made a nice couple and that Chris Prescott would propose marriage sooner or later. There was a pool on which date Chris Prescott would propose being run by Brian Kief, a guy from Jake’s 1L small section. Jake, oddly enough, chose some time this week (including today, Friday, and Saturday). He was hoping this week as the pool was now up to $75, a nice and tidy sum, especially for a law school student.
The same applied to Crystal Brown. She and her boyfriend, a student at Davis University, were also in a serious relationship. Jake thought they would get engaged soon as well, though not before Laura and Chris proposed undying love. There was not a pool on when Crystal would get engaged. Crystal and Jake also shared several mutual friends from their college experience at Davis University. This included Ken Ballentine (in Jake's 1L small section) and Alan Kennison (a guy that Jake knew since middle school). Jake's friendship with Alan Kennison was a strange one that meant telling a long story involving headlocks and choke holds. In Jake's world, strange things happened and sometimes, things got stranger than even he thought was possible.
Anne Swanson was already married and pregnant, with a child on the way. She and Crystal, apparently, were good friends. Oh, and there was another Chris in his small section. This Chris was Chris Sampson, a 2L who was a summer starter. Jake and Chris generally played witness for each other in Trial Advocacy. It was a good working relationship.
Cheryl O'Malley, currently special assistant prosecutor in federal court, was presiding as judge for Jake's Trial Advocacy small section. She was a few minutes late for several reasons. Traffic was getting bad due to the massive rainstorm happening at this moment. In addition, parking near the law school was spotty due to the men's basketball game. Trying to find parking on campus during a basketball game was nearly impossible. Rabid fans packed the basketball arena during every game. Guaranteed sell out. Parking spots became a rare commodity and people paid large sums to snag a nearby spot.
"Wow, people sure do like their basketball around here." This was O'Malley. "It took me a while to find a parking spot."
Chris Sampson said, "This is Davis University. The most important thing around here is basketball. It's that simple." He looked at his watch, a stainless steel Casio dive watch as he enjoyed scuba diving. "And I'm missing a game. Even had a chance for sideline tickets. These were premium seats."
"You had sideline tickets to tonight's game?"
This was Chris Prescott. He was a Davis University basketball fanatic who attended every single home game and as many away games as possible. If it meant waiting in line for days upon end, that was a price he would pay. Court side tickets were extra special tickets, very expensive. You had to be a big donator to the Davis University Athletic Fund to get court side seats. At last check, it was $150,000 a year for about ten years. Average college students did not and could not afford these prices.
Student section seats were behind the baskets, so they weren't bad seats. The court side seats, however, were akin to the 50 yard seats in football stadiums. They were prime seats as one could see all the action occurring on the field. If you knew someone who had court side seats, you asked how they got them. After all, you might be able to snag some tickets.
Chris Prescott continued by asking, "What row were they?"
"Second row, man. Second freaking row. You know what I'm talking about? And they were right behind the home team bench. Less than five feet--five freaking feet--away from the Davis University basketball team. It's almost as good as sitting on the bench. Or sitting behind the announcer's table. Or being on the court. Well, it's not that good, but close enough."
"What? Second row? How'd you manage to get them?"
"My neighbor. My ultra-rich neighbor. The guy used to work for one of those tech firms that went public and he got a load of stock options. He asked me if I wanted them since he couldn't make it to the game tonight. And then I realized I couldn't go either."
"Court side tickets? Second row? Right by the home team bench? Are your crazy? Given that or Trial Ad, I think I would have chose the basketball game. You should have skipped." O'Malley looked at Chris Prescott. "Um...I don't imply that a basketball game is more important than Trial Ad. This is a really fun and educational experience. Hey, Laura, help me here."
"Yeah right," retorted Laura. "Honey, as much as I love you, I'm not saving you from that."
"That's OK, Mr. Prescott. I didn't interpret your comments as meaning that." She flashed an evil grin at Chris Prescott. He was going to get a few knocks this week. "Now let's get on with the trials. We're doing Problem 5.15 first."
Oh fun. Jake was up first. He was the prosecutor and his star witness was an accomplice to a murder. The defendant and his star witness with the name of Edward Richards (all the names in the problems were pretty dull names) walked up to a police cruiser. The defendant, a Ralph Tyler (another dull name), pulled out a revolver and shot the police officer sitting inside. Richards was a lousy witness for several reasons. First, he was directly involved with the crime of murder. Second, as long as he tells the truth (something Mr. Richards had not done very well), he won't be prosecuted for murder. Great, his prize witness was a stool pigeon trying to save himself from the death penalty. Oh, by the way, he was convicted of burglary four years ago and he was caught running out of a liquor store with a gun in his hand. If that wasn't enough, he had lied twice while under oath, claiming he wasn't there at the scene of the crime and he knew nothing about the crime of murder. To sum up, Mr. Richards was a liar, a stool pigeon, and a convicted criminal who was trying to save himself from death row. He was a man who would do anything to save himself. Making this person sound credible was going to be tough, very tough. Then again, life worked that way, even in the real world. You can't change that.
That was Jake's problem. How do you get past those problems and blunt the negative impact of those problems? After some consideration, Jake decided that honesty was the best thing to do, at least when it came to the plea bargain and the contradictory statements. He was going to show all of those problems in his direct examination. If he kept silent over any of them, the other side (if they were smart, and he knew the other side was smart), would pounce and strike. It would be game over for Jake.
The prior conviction resulting in jail time, he would keep silent about. Jake knew his Evidence rules and the other side could not use the prior conviction for impeachment purposes. Since armed robbery was not a crime involving dishonesty or false statement, the defense had to pass a Rule 403 balancing test on truthfulness. This was a relatively tough test.
Jake did his direct examination. It went smoothly much to Jake's surprise. No hesitation. A good amount of eye contact with the witness. Despite not using a script, questions and answers came out smoothly. The other side tried to object and Jake thoroughly demolished their objections. O'Malley, the Trial Advocacy adjunct, looked pleased at his work.
He was on a roll. Jake thought that he might manage to go though this trial without making a mistake. He was feeling optimistic about this excellent possibility. He only had to get past the defense's cross examination and he was home free. Things were looking good. Wait. Unwarranted optimism was not a good thing, especially during a trial. Even if it was a mock trial that wasn't all that real.
The defense began their cross examination by asking several pointed questions about the witness's prior statements, just like Jake predicted. His witness managed to answer these questions without seriously hurting themselves. Good job. Very good job. Jake had no problems with these questions. No objections at all to these questions. His opponent, Anne Swanson, was smart and she didn't pull any punches. But because Anne didn't pull any punches, because she was so thorough in her questioning, her trial strategy was predictable. Jake knew she would ask a question about the prior conviction. It was going to come right about now.
"You've been convicted of armed burglary before?"
Bingo. Time to object. Jake jumped up and immediately objected.
"Objection, your honor. Improper impeachment."
In the real world, this objection would not have been necessary. In the real world, this question of the admissibility of the prior conviction would have been decided before the trial even started. This was done in an exclusionary hearing. There was a proper legal term for this evidentiary hearing, but the technical, legal term is really of no major importance. The judge would have heard oral arguments and seen the evidence and based upon the arguments, decided if the evidence was in or out. Then again, as stated earlier, this was law school and Trial Advocacy, so the rules of the real world do not apply. And so, due to this, the seeds for Jake's unfortunate incident were planted.
O'Malley said, "Counsel, your response?"
Swanson replied after some hesitation, "It is not improper impeachment."
"And what is your legal reasoning?"
"It is not improper impeachment because it is a prior conviction."
"Response, Mr. Lau?"
"Yes it is a prior conviction, but armed robbery is not a crime involving dishonesty or a false statement and besides, Ms. Swanson hasn't shown that armed robbery is a crime involving truthfulness."
"And what is your take, Ms. Swanson?"
"I would say that robbery is a crime involving truthfulness."
"Nope, it isn't. Crimes involving dishonesty or false statement are crimes that involve deceit or lying as an element. Last time I checked, these crimes traditionally are crimes like perjury, fraud, embezzlement, and such. Armed robbery is not one of those crimes."
"Counterpoint, Ms. Swanson?"
"Robbery does involve deceit, your honor."
At this moment, Jake is feeling the autopilot turn on his head, despite him flowing very well with his words and his mind. This generally foreshadows something about to go wrong. Jake has gone through this before by asking Professor Pearson about the Rule 403 balancing test. Professor Pearson gave an excellent academic answer and a sarcastic one. Jake probably should have paid more attention to the academic one as it mentioned several relevant cases.
"That's preposterous. Given that logic, then every single crime would be allowed in. Therefore, there would be no need for the Rule 403 balancing test on truthfulness. Besides, robbery, especially armed robbery, is as honest as it gets for a crime." Oh great, he just said something stupid. Get the words out as fast as possible to cover it up. Make sure nobody heard it. "Sure there are masks involved with this crime, but come on. You pull out a weapon, point it at the intended victim, and demand the goods. That's as honest as it gets. Robbery is an honest crime. I can't believe I just said that."
The small section burst out laughing at Jake's comments. Even the Trial Advocacy adjunct couldn't help but chuckle. Jake started to laugh as well. He had said something amusing, even preposterous, even highly amusing. He couldn't stop it once it started.
"Robbery? As an honest crime? Well," said O'Malley, "I must admit that I found your comments, how do I say it? They were...amusing. There were some very good legal arguments there. Your...common sense argument, though absolutely correct, would not pass by in court. I have to give a ruling, so I will rule that the objection is sustained."
Jake sat down. Despite his, well, little incident, he decided that it should be forgotten and the rest of the trial should proceed as if it didn't happen at all. O'Malley thought this was a good idea as well. The rest of the cross examination went smoothly, much better than certain parts. He made some more objections, though his reasoning was a lot less colorful than before. O'Malley decided that despite his slight mistake, he deserved an A for tonight's work. Not too bad.
"Jake. Mind being my partner for next week?"
"Not at all, Crystal."
"Great! And Jake, that was funny."
"I know."
"See you next week for Trial Advocacy. And remember, no honest crimes this time."
"Gotcha. See you later Crystal."