Podcast - Reading The Room

In this episode of "The Trial Lawyer's Handbook," litigation attorney Dan Small continues the discussion of U.S. v. Rendle and explains why reading the room matters in court. Mr. Small shows how judges, juries and the pace of a trial should guide your choices across all aspects of the proceeding, not just your arguments. He shares a Boston case where a defense lawyer's approach at sentencing hurt the client and a moment in U.S. v. Rendle when a lengthy cross-examination allowed the government to respond with a strong redirect. This episode offers clear lessons on timing, tone, selecting the right witness, when to object and how courtroom dynamics can lead to plea deals.

Listen to more episodes of The Trial Lawyer's Handbook here.

Mr. Small is also the author of the American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers.

Podcast Transcript

Daniel Small: Welcome to another episode of "The Trial Lawyer's Handbook" continuing on discussing the U.S. v. Rendle case, based in part on my latest ABA book, "Lessons Learned from a Life on Trial."

As trial lawyers, we are advocates, but we cannot let our strongly held beliefs blind us to the realities of the courtroom. Our clients, whether individuals or the government, need counsel who can "read the room": the judge, the jury, the atmosphere, the direction things are going. It can be a challenge to step back from our advocacy long enough, and far enough, to really read the room.

One extreme example from a different case and a different judge: As an Assistant U.S. Attorney in Boston, I prosecuted a U.S. Customs Service agent for stealing and selling confidential information from the agency's computer system. He hired an experienced criminal defense lawyer to represent him. This lawyer was known for attacking the government: "The government had overreached," "the government had made mistakes," "the government had acted improperly," etc. That was helpful to the defense in some cases, but how does it help to say the government is bad when you're defending a government agent?

It didn't. The jury was confused but not convinced by the lawyer's attacks. The judge was unsympathetic and impatient, at best. The defendant was convicted on both counts. Then, at sentencing, it got worse.

As the prosecutor, I got up first and talked about the importance of the confidentiality of the customs system and the seriousness of the agent's breach of trust. I argued for a sentence on each of the two counts but said that the sentences could run concurrently, not stacked on top of each other consecutively. Then it was the defense's turn.

Most of the time, for the defense, the sentencing hearing is a time for — well, let's call it what it is — groveling. Your trial defenses haven't worked, questions of guilt or innocence have been resolved against you, and the judge needs to hear remorse and pleading for leniency. Courtroom etiquette doesn't allow you to get down on your knees to beg, but sometimes, if you could, you probably would.

Not here, not this time. This defense counsel was so caught up with his constant refrain that he got up at the sentencing hearing and railed against the government again. Everyone in the courtroom was shocked. That ship had sailed. This was not the time or place for that argument.

Read the room. He didn't, and when he was done, the judge was clearly angry. He glared at the defense counsel while he announced that he was accepting the government's sentencing recommendations on both counts. But then he paused and, still glaring directly at the defense counsel, said that the sentences on the two counts would run consecutively, not concurrently as I had recommended. As I said, an extreme case, but one that clearly shows how far reading the room (or not) can take you.

In the Rendle case, the importance of reading the room started early. Judge Tauro and I disagreed on many things, but we agreed on one: We both loved trials. The excitement, the entertainment, the knowledge, the challenges. That can sometimes be difficult to maintain in a complex, multiple-defendant white collar case, but it remained no less important.

Our first witness at trial was not intended to be exciting. This was the beginning of what was to be a month-long trial. We had explained in opening that we would call a Department of Housing and Urban Development, or HUD, auditor first, just to explain the housing program and how things worked. Explain the program that was the basis for the corruption. Dull, but necessary to lay the foundation for what was to follow. Our witness was right out of central casting for auditors: smart, soft-spoken and (I say this with fondness and respect) boring. He did a good job explaining the program, and then I sat down.

Cross-examination of the auditor probably should have been limited or nonexistent. Nothing he said was really disputed, he had no personal knowledge or involvement with the defendants, mostly just what he had learned from reading the HUD and case documents, and most of that, coming out of his mouth, would be hearsay. "No questions" would have been an effective cross-examination. But the lawyers and their clients were impatient, wanting to do something to counter the wave of evidence they knew was coming. So one after another, defense counsel tried to use this poor auditor to put forward their defense theories. Some of the lawyers cross-examined him for longer than he had been on direct and in directions we hadn't touched on in his direct examination.

He was the wrong witness for their purpose. Clearly a nice fellow, clearly just an auditor. Not evil and not able to make their theories come to life. They should have seen it and stopped. I objected at various times on speculation, lack of foundation and hearsay, but not too much, not too vehemently, and Judge Tauro overruled most of my objections. He was giving the defense great leeway, but I could see him getting more and more impatient as this unsuccessful effort droned along.

Finally, the last defense counsel ran out of steam. Most of the time, redirect examination is short, limited to the direct and restricted to nonleading questions. But reading the room, I felt more was needed. I gathered all the energy I could, jumped to my feet and dramatically launched into what was essentially our closing argument in question-and-answer form. Leading, raising my voice, going far beyond what we had done on direct and really far beyond what they had done on cross.

Defense counsel, of course, went crazy, objecting to hearsay, scope and everything else, just like I had during their cross-examination. But they had misread the room. After a long, pointless slog through cross-examination, we were back to what we hoped, and Judge Tauro believed, trials should be — fast-paced, informative and entertaining — and Judge Tauro was happy with it. He sternly overruled their objections. Finally, after one objection, he glared at the defense counsel and said, "Counsel, you opened this door, you have to eat whatever crawls out of it!" After a redirect that was twice as long as the direct, I sat down a happy man, having delivered our closing argument through our first witness, a simple auditor.

Meanwhile, it got worse for the defense. After the auditor was finished, Judge Tauro called all counsel to the sidebar. Defense counsel was excited. Sidebar conferences in that courtroom often included Judge Tauro berating the government. Surely he was going to rein me in after that outrageous redirect. But again, they had misread the room. To everyone's shock, except mine, Tauro turned to the defense counsel and said: "Is that the best you have? Am I listening to a month-long sentencing hearing?" And he told a stunned group of lawyers that he was sending the jury home for the day to give us time to work out guilty pleas.

We started a round-robin set of plea negotiations with each of the different defense attorneys. At one point, negotiations broke down because counsel thought I was being too tough on their clients. I said fine, let's go back to trial, I'm having fun. Instead, they asked for a conference with the judge. We had all seen Judge Tauro strong-arm prosecutors into more lenient plea deals. But not this time. Judge Tauro heard them out and then said, "I think Mr. Small has a very strong position, I can't disagree with him here." And sent us back to work. Eventually, all of the defendants pled guilty to serious crimes, except the one most minor defendant, whom we severed out to deal with later.

Reading the room is important in many situations, but particularly so in a trial. What's needed, what's not. What's appropriate and what's not. Where things are going. We have to be carefully tuned into the room and the people around us, and not so focused on our own case and our own words that we lose the room.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.