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Trial Practice: Framing a Guilty Man

What is it about many of our species that we cannot have it good enough?  We have to try to improve our situation, even when our situation is pretty good. Rather than let the facts fall as they do, we have to make our stories better than the reality.  We embellish. We enlarge our tale.  We help reality out a little bit (or sometimes, a lot). even in trial practice, we have to frame the guilty man.

Here's how it happens in divorce court. A party will have a pretty good fact pattern, one that their attorney tells them weighs well in their favor.  We know that the parties' history, without any enhancement, will probably be sufficient for the judge to make the right decision.  But that isn't good enough. The party will have to help the story along.  Now, instead of testimony that mom comes home at 7:30, after the dinner dishes have already been cleared, the party now testifies that mom is staying out until 9:00, or 11:00 or later still.  Now, instead of dad having three to four beers each evening after work, he's downing a six pack or a twelve pack or worse.

"He's not just a drunk, judge.  He's really a drunk!"

People are generally pretty good at spotting lies.  We are exceptionally good at spotting lies in court.  That is a very important part of what we do in our trial practice.  And since the whole honesty thing is a foundation of testimony in court, it's a big deal when a witness, and particularly a party, spins a tale and embellishes the truth. Because honesty is our paramount value in court, whatever nugget of truth there was in the story gets lost, discounted, tossed out. We have a maxim that says if someone would lie to you about one thing, they will lie to you about everything.

So that temptation to embellish is a fatal attraction.  It is deadly to your credibility.  It often is the end of your case.  

When you frame a guilty man, you remove the focus from the man and place the focus on yourself.  You become the story.  In your effort to get the bad guy, you help the bad guy get away. 

So the moral to our story is, if you want to prevail, don't embelish your story. Don't frame a guilty man.

Michael Manely

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