[If you missed the first part of this series, it would be good to start at the beginning HERE. I had to cut it in half to make it more manageable, but there are just so many aspects to Petrocelli’s excellent trial work that I couldn’t leave any of this stuff out. Here is the last part of the Petrocelli post…]
Previously, I was explaining how Petrocelli’s questioning of OJ Simpson about his ‘ugly ass shoes’ worked so well – primarily by repeating the defendant’s very memorable statements back to him, and having him repeat obvious lies over, and over, and over. This really made it all stick in the minds of the jurors and made it extremely clear whenever OJ contradicted himself or just sounded so unbelievable they couldn’t look past it anymore.
Another aspect of the shoe questioning from that trial, is what I call “leading the witness down the primrose path”.
You don’t usually want to start right off with the point you are getting to. It’s like sending up a flare, warning the witness to be careful. It is best to work into it slowly, to seduce the witness into going where you need them to go, lulling them into a false sense of security because you are asking about seemingly innocuous details.
Petrocelli started with OJ’s shirt. He got OJ talking about how he liked the collar, how that was snazzy, something he might wear since he was such a snazzy guy. The arrogance he routinely displayed is something else Petrocelli was only to happy to bring out repeatedly in front of the jury. Acting conceited gets old when the topic is the slaughter of innocent people. Someone should have told OJ that the ultimate conceit is killing someone.
Petrocelli moved down OJ’s body, literally, prompting the former movie star to play the peacock about his own wonderful fashion sense. Until he got to those ugly ass shoes. And those photos. They make my burnt door look like nothing. I mean, why deny the shoes unless they prove he’s guilty? They were obviously part of an outfit personally put together by OJ so that he could look good in front of a giant stadium full of adoring fans; in other words, the ugly ass shoes were obviously his. And how can a guy who only wears that fancy brand somehow find them ugly? Me? I get shoes at discount from Nordie’s Rack. For me, ugly ass shoes are a fact of life. For OJ? Not so much.
In trials it is critical to develop themes throughout the questions and arguments, typically working from smaller to larger subjects, from less to more important, ultimately weaving them all together in your closing argument. You weave a pattern of questions into a theme, in the same way you then weave the patterns of themes together into larger themes. It sounds convoluted but it works. You are telling a story, painting a picture, creating a multi part symphony out of the musical notes called questions.
Exactly how you put this together depends on the case, of course. Here, just as Petrocelli literally led OJ down the Primrose Path building upon his shirt collar foundation to work OJ into the ugly ass shoe corner, Petrocelli also developed the larger sections of his questioning. Petrocelli forced OJ to lie repeatedly about different subjects, beginning with that broken glass, onto the ugly ass shoes, then building to the crescendo which formed the centerpiece of his case, the giant blown-up photos of Nicole, showing her face beaten bloody by OJ one Happy New Year’s Eve. Having clearly established that OJ was trying to lie his way out of the evidence when it came to broken glasses and ugly ass shoes, he led him right into lying about those photos with Nicole standing there, barefoot and terrified in the police station, with the crap beaten out of her.
Developing themes like this in trials is comparable to the mathematical concept of “fractals”. Fractals are geometric equations that describe naturally occurring patterns found in nature. A good example is found in leaves and trees. If you look closely at a leaf, it actually closely resembles a tiny tree. It has a main trunk, with smaller branches growing out of it, leading to smaller and smaller branches until you reach the end. The leaf perfectly mirrors the shape of the tree it’s on.
In trials you shape the questions in the same way. You may even structure an individual question a particular way and use that same structure to build the tree of questions in general. For example, here Petrocelli developed the leaves of questions about shoes, starting with the shirt collar and gradually working his way down OJ’s own trunk to those ugly ass shoes, gradually building to a crescendo where it was obvious that OJ was lying about all twenty photos showing him wearing those ugly ass shoes he swore under oath that he would never wear. Similarly, he laid layer upon layer of lies regarding the various pieces of evidence he asked OJ about, gradually building to a crescendo of the most important pieces of evidence. Start with pieces of broken glass and ugly ass shoes covered in blood and end with Nicole’s black and blue face covered in blood.
As previously mentioned, part of this crescendo building is the repetitive use of key words. Words in trial are like notes in a musical score. By coming back to them, again and again, ringing the bell repeatedly, they become the central chord in the music of the trial. Words are power. They stick in juror’s minds. You may notice that I have been doing exactly that in the last few paragraphs. Does the phrase “Ugly ass shoes” ring a bell?
Another great example of this is the “Mountain of Evidence” phrase repeatedly used by Petrocelli. I loved the part in the A&E documentary where veteran reporter Linda Deutsch is talking about the “Mountain of Evidence”, literally quoting Petrocelli as if his words were Gospel.
I once had a high profile case in Federal Court in Seattle in which my client was suspected of being a central actor in an embezzlement scheme (he wasn’t.) Eventually, after many meetings and emails, I was able to convince the US Attorney that my client was a victim himself, an innocent bystander who had been manipulated by the real culprit. I used the same phrases every time I talked to the prosecutor: “unwitting participant, innocent bystander, the true victim”. I can’t begin to tell you how much fun it was to read those exact phrases on the front page of the Seattle Times, direct quotes from the US Attorney who was directly quoting me when explaining why they had not charged my client. You know you’ve done your job when the prosecutor is quoting you on the front page. It’s even better when judges or jurors do it.
For a guy who had only ever tried one case before in front of a jury, Petrocelli demonstrated real genius in the way he wove this all together. I probably had twenty or so juries under my belt before I was doing this in every case. He flooded the courtroom with a symphony of OJ’s lies. As Petrocelli himself described it, the Deposition had been an exercise in getting as many lies as possible out of OJ that he could use later in front of a jury. Now he was using them. Ultimately Petrocelli argued his entire theory of the case this way: OJ lied about hitting Nicole so therefore he lied about killing her.
Having said up front that we would move from general concepts to more and more specific ideas, now let’s get down into the real nitty gritty. The fun stuff. Pacing, for example. I love this part of trial work. It’s the part where you finally get to play the music you’ve been working on so hard, complete with the occasional improvisation. In terms of the symphony of trial, this is comparable to the staccato versus legato styling of the notes, quick fire bursts or long and drawn out. You use different paces at different times, sometimes sitting back and letting the witnesses answer at length, as Petrocelli did repeatedly in the Deposition. Other times he pushed OJ staccato style, rapid firing questions like a Gatling gun, throwing OJ off the pace of his lying. The improvisation comes in when you modify the pace in response to the witness. There are many ways to have fun with lying witnesses.
Petrocelli would also ask the same question twice in different ways:
DP: Ever strike her in the face?
OJ: No.
DP: Ever hurt her?
OJ: Yes.
Petrocelli would force OJ to be specific about the lies. When OJ talked about ugly ass shoes Petrocelli didn’t let it go. Instead he asked, Why are they ugly? What about them is ugly? When OJ lied about how he cut his hand, Petrocelli asked, “You cut your hand on a glass? How did you do that? How did you cut your hand? Did you cut it on one of the pieces of glass? On what piece?” OJ couldn’t answer because he did not cut his hand on a glass. He cut it when he was beheading Nicole.
Most important of all in trial work, Petrocelli never loses his cool when OJ argues with him. Instead he just keeps asking questions, different ways:
DP: You were hitting her?
OJ: No.
DP: You were pounding her?
OJ: No.
DP: You made her face black and blue?
In this context he used another one of my favorite techniques. The giant glaring photo of Nicole with her beaten bloody face, right there on the easel next to OJ, for all the world (and especially the jury) to see as OJ repeatedly lied about beating Nicole in the past. Again, if he lied about not hitting her when the photo of her beaten bloody face is right there proving he did hit her, he must be lying about not killing her.
Eventually, weaving these questions together in a pattern to show that OJ was a liar, he wore down OJ until he felt compelled to start to explaining things. When that happens in front of a jury you are pretty much home free.
DP: You strangled her?
OJ: No.
DP: You caused marks to be made on her neck?
OJ: No.
DP: You had your fingers around her throat?
OJ: No.
DP: You were enraged?
OJ: No.
DP: Angry?
OJ: Yes.
DP: Anger is another word for rage, right?
OJ: Yes.
DP: This was a violent episode, right?
Under this sort of questioning OJ began to explain himself. Petrocelli got him to say he was responsible but never hit Nicole. Huh? Remember he was saying this while a giant blown up photo of Nicole’s beaten bloody face (another repetitive use of words you may have noticed) was sitting right there next to him, Nicole impeaching him from the grave with that face.
Petrocelli continued to make OJ be specific. When OJ said that the violent episode “could have happened,” Petrocelli asked him, “What could have happened is that you put your fingers on her throat?”
Eventually Petrocelli’s refusal to simply accept OJ”s constant lies worked. OJ was tricked into telling the truth. He put his fists up in air to demonstrate how he fended her off, the ultimate explanation gone wrong. Petrocelli immediately jumped in to point out that OJ was using his fists as he explained what happened. That is twice as powerful as pretending you can’t put a pair of gloves on. Especially when your clenched fists are a few feet away from the victim’s beaten bloody face staring back at you.
There are other classic techniques Petrocelli used, like creating timelines, and then mixing them up. For example he mixed up questions to make it harder for OJ to trot out his memorized answers. He went from asking OJ “What were you wearing?” then jumped to gang fights in his youth. He jumbled up the story so OJ could not just repeat it back from memory. As Petrocelli said, “The jury could literally see his mind racing.” Why was his mind racing if he was telling the truth? Simple. He wasn’t.
Which is why Petrocelli won. He proved that OJ was lying. And if he was lying there had to be only one reason. OJ killed Nicole. And the jury agreed.
I could write a book about this stuff, and many have. However, I have other things to talk about. I’ll come back to OJ, but it is time consuming and I have clients who need my full attention. For now, I’ll leave you with an excerpt from that Deposition that demonstrates many of the things I have talked about here. Again, I strongly recommend that anyone who is interested in this case search out the various TV shows that have revisited the case lately so that you can see for yourself. We will come back to the criminal case later and discuss the wrong way to try a case.
But for now, the civil case has everything you would ever need to know about the right way to try a case. Thanks to one Dan Petrocelli, a real lawyer’s lawyer. See for yourself:
Petrocelli: “You never struck anyone in their face, correct?”
Simpson: “Correct.”
Petrocelli: “And you never hurt your wife either, correct?”
Simpson: “No, I hurt my wife, yes.”
*********
Petrocelli: “Did you physically hurt her?”
Simpson: “Yes.”
Petrocelli: “Did you ever bruise her?”
Simpson: “Yes.”
Petrocelli: “Did you ever make her black and blue?”
Simpson: “I think any marks that’s on her, I take full responsibility for. I don’t know what else you want to do. I take total responsibility.”
Petrocelli: “Why?”
Simpson: “Because I shouldn’t have handled the situation the way I did. I’ve—all my life with Nicole, no matter what was going on, I handled it without being physical with her. And that time I got physical with her and I’m ashamed of it. I wish it not had happened.”
*********
Petrocelli: “You had your fingers around her throat, correct?”
Simpson: “I could have touched her neck, yes.”
Petrocelli: “What do you mean, you could have touched her?”
Simpson: “I could have.”
Petrocelli: “—violent episode, wasn’t it?”
Simpson: “Yes, it was.”
Petrocelli: “And rage is a fair description of your state of mind, correct?”
Simpson: No, it was not.”
Petrocelli: “Not anger?”
Simpson: “Anger, yes.”
Petrocelli: “Intense anger?”
Simpson: “Anger.”
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