by Justice William W. Bedsworth

I’d be a lot thinner today had I remained a trial lawyer. I wouldn’t be any smarter or better looking but I wouldn’t need three-piece suits to disguise my waistline.

Trial work—done right—is grueling, harrowing, and exhilarating. The key word in the phrase “trial work” is work.

Combine an unhappy marriage, a theological debate, and cleaning out a portapotty, and you have a rough approximation of a three-day trial. Anything longer than three days is indescribable without reference to Dante’s Inferno.

But the exhilaration, the intoxicating opportunity to dazzle with your skills, and actually help people . . . well, that’s pretty damned close to addictive. So I did it for almost four years—until my near-phobic anxiety about meeting people¹ forced me out of it and into something that suited me better.

And while I was doing it, I did not eat. I was too nervous for breakfast. The day was going to be all about meeting people. I was going to be meeting attorneys, jurors, and witnesses. My lepidopterous² stomach was not able to handle food those mornings.³

Nor was lunch an option. I was usually preparing for the afternoon, and even if I wasn’t, the first time you eat a big lunch and then fight to stay awake through your opponent’s direct examination of a witness you don’t intend to cross—or spend the afternoon trying to pull your coat over a new mustard stain on your shirt—you vow to forego noon meals during trial.

Then, at the end of the day, you spend two hours planning and interviewing the next day’s witness(es). When you finally get home, you have to sit down to try to figure out a Plan B for the evidence you couldn’t get in under Plan A. Next thing you know, you’re waking up with your head on the kitchen table and it’s midnight, and all you wanna do is sleep some more.

It’s a helluva diet.

That was my life when, one day, about eighteen months into my career as a deputy district attorney, I looked up from the DUI I was trying and saw John Cronin sitting in the back of the courtroom. Cronin was a legendary trial lawyer and a honcho in the DA’s office. The fact one of the top administrators in my office was watching me try a garden-variety “deuce” could not be good news.

And it wasn’t. At the end of the day, when I went back to my tiny office, John was sitting in the lone visitor’s chair. He said nothing until I sat down behind my desk, and then he looked me straight in the eye and without any greeting said, “You’re good at this. You’re really good. Why don’t you like it?”

“Oh, I like it,” I lied. “I like it fine.”

“Bullshit,” he barked. “Your stats make it clear you don’t like it. You aren’t giving away the store; we’ve looked at your dispositions. But you’re not trying anything you don’t have to. So why don’t you like it?”

I have very little memory of the rest of that conversation. It felt like my career had been hit by a train and I was bouncing around the passenger compartment wondering why my seat belt hadn’t held me in place.

I’m sure I spent the next fifteen minutes lying through my teeth. The fact was I was terrified, but I was too smart to say that to a macho guy like Cronin . . . and too stupid to realize he already knew it.

I loved the DA’s Office. I loved criminal law.⁴ I had student loans to pay. My wife was pregnant. Prosecution was not just my preferred choice, it was damn near my only choice.

I had been getting good results.⁵ And I loved the exhilaration. I loved being in the courtroom. The anxiety outside the courtroom was killing me, but I thought I was doing well. The fact there was enough doubt about my career that the gods on Mt. Olympus were reviewing my files was an ice water shower followed by a strong wind.

I was drenched and freezing but I had no viable choice. I had joined a trial office; I had to be a trial lawyer.

I toweled off my ego, tried to erase the picture of a very skeptical John Cronin from my memory, and went back into trial. I finished that trial and scores of others. Rapes, robberies, petty thefts, DUI’s, whatever came down the pike, for four years, I tried them all. It was a very trying time.

And then I got lucky. The defense bar began sending specialists into felony law and motion matters. And they won. Lawyers like Mike Garey and Bill Kopeny and Denise Gragg began winning critical motions—suppressing evidence, excluding confessions—and the District Attorney’s Office decided it needed to fight that fire with fire of its own: felony law and motion specialists. That became my job.

I parlayed that into appellate work and this column.

Of which you’ve now read a thousand words and are wondering why. Let me try to make you feel better about that decision. Let me tell you what I learned trying more than fifty jury trials and then presiding over another hundred or so as a trial judge.

Trepidatious as I was about every case I tried, I learned which lawyers to fear. I was not afraid of the smart ones. Hell, I’ll match smarts with anybody. Smart didn’t intimidate me at all.

And I was even less afraid of the jerks. Oh, the bullies got the better of me at the beginning. It took me awhile to realize that it was form rather than substance, and it was a form that was easily parried. Once you understand that this is a lawyer who has put all their eggs into a psychology basket and it’s bad psychology, it’s easy to deal with.

No, the lawyers who scared me, the ones I hated to see walk into my courtroom, were the nice people. I hated to see Jim Riddet or Al Stokke or Gary Pohlson or the late Lew Geiser show up with a file in hand.

Because I knew the jury was going to fall in love with them. The jurors would figure out by the end of voir dire who the best human being in the courtroom was, and I would spend the rest of the week trying to overcome their hope that they would get to vote in favor of the nice guy.⁶

I always had the facts. I always had the stronger case because prosecutorial ethics don’t allow you to go to trial unless you’re convinced you can prove the case beyond a reasonable doubt. You don’t try cases that are evenly balanced. A prosecutor who shows up in court thinking the jury will sort out the guilty from the innocent is ethically challenged.

I always walked in thinking I was on a winner. So smarts or snide were not a problem. But that nice guy thing, that could turn a slam-dunk winner into a hanger. And in the DA’s Office, hung juries go down as “L’s.”

I saw nothing in my ten years as a trial judge to change that assessment. And it’s an important one. If you like opposing counsel, the jury will, too. It will do you no good to be perceived as the mean guy at the table.

The same is true of the judge. If you like her, the jury probably will. And no matter how low your opinion of her legal acumen, the jury will assume the judge knows the law. No matter how off the wall you regard the judge’s ruling, the jury will be unalterably convinced it’s correct.

So anything but respectful disagreement hurts you. If you feel the need to be vociferous, find a time and place outside their presence to do so. I’m not preaching civility here—though I am happy to do that anytime I get the chance—I’m preaching self-preservation.

Your life will be better if you realize there is not a single soul in the courtroom that you do not have to be nice to. Not a one. Not the judge, not the court staff, not the jurors,⁷ not opposing counsel, not the spectators, not the guy who walks in with a flower delivery. Nobody.

Trial work is tough. Make it easier. The simple fact is it’s easier to win when you treat people right. Do it.

BEDS NOTES

1. Yeah, I know. That surprises people. But I grew up poor and fat; that’s not a combination that engenders self-confidence.
2. Why in the world do I know the scientific name for butterflies? Trust me, I’m as surprised as you are by some of the stuff in my head.
3. And I was not alone in this. I once heard the great Francisco Briseno, one of the mentors of my early career, refer to his early days as a prosecutor with the description “back in the days when we were all throwing up over traffic trials.”
4. And had done enough criminal defense work in law school to know I was not cut out for it.
5. All prosecutors got good results in Orange County in the seventies. It was prosecutorial heaven. But I was too green to know that.
6. These were all guys because when I was trying cases, very few women showed up on the defense side of the table. Things are better now.
7. Be careful during voir dire.

William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. A Criminal Waste of Space won Best Column in California in 2018 from the California Newspaper Publishers Association (CNPA). And look for his latest book, Lawyers, Gubs, and Monkeys, through Amazon, Barnes and Noble, and Vandeplas Publishing. He can be contacted at william.bedsworth@jud.ca.gov.