Vol. 4, No. 3, Pg. 33. The Cat and the Mouse.

• Author: By James W. McElhaney

South Carolina Lawyer

1992.

Vol. 4, No. 3, Pg. 33.

The Cat and the Mouse

33The Cat and the MouseBy James W. McElhaneyThe young lawyer was right in the middle of final argument when he had one of those awful moments of self-awareness and wondered if he would be able to fmish what he was saying. Everything had been going along just fine when all of a sudden he felt the rush of blood to his face and became exquisitly aware that he was standing in front of the jury, talking to them, and that they were listening to what he had to say.

That is when he started listening to his own words. He knew they made sense, but he worried that they might actually be hurting the case instead of helping it.

The young lawyer was right to be concerned. He was representing the defendant in a criminal case, and he was suddenly caught in the Venus Flytrap of the law--proof beyond a reasonable doubt. You can look at it, you can circle it, you can describe it, you can crawl all over the outside of it. But once you settle on it and rely on it for your defense, if you are not careful, it can eat you alive.

Wait a minute, you say. Proof beyond a reasonable doubt is a heavy burden that the prosecution has to bear thoughout the entire case. It is designed to protect the defendant, to guard against the possibility of the innocent being convicted. How can it be a trap for the defense?

The answer lies in the role of lawyers and the logic of argument.

Take My Word

Whenever you represent a client--whether it is in a civil or a criminal case--you are literally standing up for that person. It is strictly forbidden to say it out loud, but your very presence says, "I have investigated this case. I know the facts and I understand how they relate to the law. You can take my word for it; justice is on my client's side."

Jurors understand the implication of your presence, even if they do not know that it would violate both the law and the code of professional responsibility for you to voice your personal belief in the justice of your client's cause. (See State v. Miller, 157 S.E.2d 335 (N.C. 1967); ABA Model Code of Professional Responsibility EC 724). Jurors are also suspicious of lawyers; they feel that what we say and do does not represent all that we know about the case.

So instinctively they watch us to see what our unconscious conduct reveals. And because of that, it...