Mark J. Moretti, BridgeTower Media Newswires
An arrogant witness, or one full of himself, is an enormous liability to the attorney representing him and to himself. Jurors and judges identify with the witness who is confident yet humble, and deferential to authority. Better for the lawyer to bolster his client's credentials and the respect they deserve rather than the witnesses themselves. Col. Jessup had a persona and level of experience which in and of itself demanded respect and scorned Lt. Kaffee. He was pulling it off until his ego got the best of him and he went over the top.
Always remember that the judge is entitled to respect. One of my favorite lines in the film is the sequence where Col. Jessup demands respect and to be called sir because he has earned it, but then taunts the judge "I don't know what the hell kind of unit you're running here." The judge orders him to be called sir, but then calmly directs "and the witness will address this court as 'Judge' or 'Your Honor.' I'm quite certain I've earned it."
Very few judges are persuaded to change their minds after they overrule objections and the attorney escalates it to "But judge, I strenuously object."
Kind of cliché, but the movie does correctly depict those special few moments in court that come only after long nights of preparation and knowing your case inside and out.
A lawyer must advise his client of the options, the upside, the downside, and the likelihood of success of each. Sometimes none of the options are perfect, but the client must make the final decision and live with the consequences. In the movie, Lt. Kaffee gives his clients the options and even though the best case scenario at trial for defendants played out, both defendants were still dishonorably discharged.
Juries and judges do not always get it right, but they do most of the time. Despite the dramatic ending sustaining their version of events, both defendants were acquitted of the criminal charges but dishonorably discharged. Following orders to commit improper acts has culpability. We already addressed that after World War II.
There are moments in every trial lawyer's career where they must make a decision "Do I want to go there?" Am I going to open Pandora's box on issues that could be a flaming success or turn into disaster for the client and professional embarrassment for the lawyer? For Lt. Kaffee it occurred when he had to decide whether to further question Col. Jessup. One can imagine that the decision could have easily turned to disaster if Col. Jessup had just kept his cool. Sometimes the decision has to be made on instinct knowing the witnesses and the players and how they are likely to react.
A good bluff can work now and again. Lt. Kaffee having the two airport controllers in the courtroom during his cross examination of Col. Jessup was a classic case in point. Sometimes being perceived to have the evidence is almost as good as having the evidence.
Trial lawyers have to be ready to go to trial if a satisfactory plea or settlement cannot be worked out. Complacency can be a bitter enemy of the trial lawyer. Lt. Kaffee was good at plea negotiations, but there are some cases that cannot be resolved and you have to be mentally ready to go to trial.
Although she did not have the experience yet of a trial lawyer, Lt. Cmdr. Galloway demonstrated the intensity, tenacity and focus on the client's best interest that is needed for success in the profession. The part was allegedly not originally scripted for a woman. When Demi Moore was cast, the studio allegedly wanted to insert a romantic angle between the attorneys; the director insisted that Moore's character should just be an attorney, who also happened to be a woman.
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Mark J. Moretti is a partner with the Rochester office of Phillips Lytle LLP. He focuses his practice in business and tort litigation and is the immediate past president of the Monroe County Bar Association and the former chairman of the trial section of the New York State Bar Association. He can be reached at mmoretti@philipslytle.com.
Published: Fri, Oct 06, 2017
