I can vividly recall a conversation with my late mentor in which we were discussing jury-trial strategy. I can still hear him saying, "Shawn, when the facts are against you, argue the law. When the law is against you, argue the facts. And when both the facts and the law are against you, argue emotion."
While a few months have passed since the conclusion of Casey Anthony's trial for the murder of her two-year-old daughter, I have never observed a clearer example of the pitfalls of the third part of this strategy than in her trial.
From a distance, it appears that the prosecution, in a reactionary response to the circumstances presented, was probably a bit overzealous in selecting the charges on which to proceed. Stuck with their decision, the prosecution was forced to compensate for both the legal and factual deficiencies in its case. Despite those deficiencies, there was no lack of emotion, given that the case revolved around the heinous and tragic death of a young child. Thus, the prosecution argued emotion.
Although I had not been following the case closely, it seemed as if everyone around me was living the trial moment by moment. I remember a friend coming up to me during the closing arguments and telling me that Casey Anthony was clearly guilty because she lied about this and that. Jokingly, I responded that it was a good thing they didn't charge her with lying. As the reader may know, she was charged with lying and was found guilty of lying . . . but not guilty of murder.
And this is where the lesson is found.
The Casey Anthony prosecution team internalized the outrage over the untimely death of a child. Similarly, for a client accused of a crime and facing limitations on or loss of their freedom — or for any client faced with litigation — it is an inherently emotional experience. Burdened with the stress and emotion of the litigation process, it can be cumbersome for an individual to see their case from a perspective different from their own. Nevertheless, there is the risk that failure to objectively assess their case and the likely consequences could result in a far greater loss than anticipated. This is where the Reverse Casey Anthony Effect can come into play.
However, we provide the antidote to this crippling side effect. Unlike a client whose perspective is limited to personal experience, as attorneys we understand that a jury takes an oath to be fair and impartial, to follow the law, and to set aside emotion. While jurors are human and often turn to human experience in rendering a decision, most jurors take their oath very seriously and do their best to strictly adhere to its charge.
When faced with the task of advising a client whether to go to trial or not, it may seem as if our roles as zealous advocate and well-reasoned counselor are at odds. Nonetheless, it is our duty to maintain an objective point of view in evaluating both the facts and the law to determine what defenses or arguments, if any, may be available, and then providing the client with an objective risk-reward assessment of their options. When this assessment yields no strong legal or factual defenses, and the client is left with an argument founded on pure emotion, proceed with caution. Otherwise a client's emotionally charged reaction to an ill-advised decision to go to trial may produce a result for the client similar to the disappointment suffered by the prosecution in the Casey Anthony trial.