It’s all YOUR fault!

trial advocacy courtroom skills Take responsibility for bad questions

It was one my earliest cases as a newbie prosecutor.

It was a D.U.I., so I knew it would be a one day trial.  We’d picked the jury that morning and had already presented our opening statements, so we were returning after lunch to start testimony in the case.  During the lunch break, I was meeting with my arresting officer to discuss his afternoon testimony.  “One of the important things you need to remember,” I told him, “is that the judge has suppressed any references to the Horizontal Gaze Nystagmus test.  We’re not going to be able to talk about it at all, so don’t make any mention of the words ‘HGN’ or ‘horizontal gaze nystagmus,’ ok?”

In case you’re unfamiliar with the HGN test, here’s a quick primer.  Nystagmus is the involuntary, rapid movement of the eyeball.  In addition to about 240 other reasons why nystagmus may exist, when you consume alcohol to excess, it slows down your eyes’ ability to rapidly track objects.  Tracking an object from left to right, an intoxicated person’s eyes will “jerk” sooner than they would for a sober person, so police officers use HGN to approximate someone’s blood alcohol concentration level.

“Sure,” he said, “no problem.”

Shortly afterwards, we finished our discussions, and started walking back towards the courthouse.  As we crossed the street, I reminded him, “Don’t forget – absolutely no mention of the ‘horizontal gaze nystagmus test, right?”

“Don’t mention HGN,” he said, “I got it.”

Arriving at the courthouse a few minutes later, I parked him in the witness room, and then I walked into the courtroom.  The judge took the bench a few minutes later, dispensed with a few preliminary matters, and then told the deputy to get the jury.

We stood as the jury entered the courtroom, and then the judge announced, “State, please call your first witness.”

Rising from my seat, I said, “The State calls [THE ARRESTING OFFICER].”  Then I added, “Your Honor, he’s outside, in the witness room.  If you’ll
excuse me for a moment, I can step outside and retrieve him.”

“That’s fine, counselor,” the judge replied.  “Go get him.”

As I escorted the officer back towards the courtroom, I whispered to him once again, “Remember – the HGN has been suppressed.  So no ‘horizontal gaze nystagmus test’ references, ok?”

“Ok,” he said.  “No HGN.  No ‘horizontal gaze nystagmus test.’  You got it.”

I opened the door to the courtroom, allowed him to enter first, and then followed him inside.  He walked directly to the witness stand, waited for the clerk to swear him in, and then raised his hand and promised to tell “the truth, the whole truth, and nothing but the truth.”

My questioning began without much fanfare.  I began with the scripted questions that every new attorney feels obligated to ask (“What’s your name?”  “Where do you work?”  “How long have you worked there?”), but eventually we settled into a good back-and-forth rhythm.  As I continued to ask him questions, he was able to paint detailed pictures of where he’d first seen the car, what drew his attention to the car, and how the defendant had looked when he was asked to step out of the car.  After about fifteen minutes of questioning, we finally approached the landmine issue that I’d warned him about:


Q. “Officer, after you asked the defendant to step out of the car, did you ask him to perform any field sobriety exercises?”A. “Yes, I did.”Q. “What was the first sobriety exercise that you asked him to do?”








A. “I asked him to perform… the horizontal gaze nystagmus test.”

Just imagine Homer Simpson’s slow-motion realization when he discovers that he’s run out of beer (“Noooooooooooooooooooooooo!”) and you’ve got a pretty good idea of how I reacted.

Evidently, I wasn’t the only one who was surprised, because it took the defense attorney several moments before he finally rose from his seat and objected.  We approached the bench for argument, and unfortunately for me, the bench conference was a quick one, because the judge immediately granted the motion for a mistrial.

Sulking back to my office, I was mad as hell, and placed all of the blame on my witness’s shoulders.  “What an idiot,” I thought, “didn’t I tell him not to mention the HGN?  It’s his stupid fault that we lost this case!  What a fool!”

But do you know what?  It wasn’t his fault.  It was MY fault.  It wasn’t until years later that I finally learned one of the most important things that I’ve ever learned in my entire career as a trial lawyer:

Whatever goes wrong in the courtroom is MY fault.

Think about it.  Sure, I told him three (3!) separate times not to mention the HGN test, so you might expect that he’d refrain from mentioning the “horizontal gaze nystagmus test” during his testimony.  But look a little closer at what happened.

He took the stand and took an oath to tell “the truth, the whole truth, and nothing but the truth.”

After he took that oath, what did I ask him?  “What was the first field sobriety test that you asked him to do?”

And what was the first field sobriety test that he asked him to do?  That’s right: the horizontal gaze nystagmus test.  I’d asked him a bad question, and he answered it honestly…  That mistrial was entirely my fault.

If you want to become an exceptional trial lawyer, you need to learn that same lesson: Everything that goes wrong in the courtroom is YOUR fault.

When a witness doesn’t give you the answer you’re looking for, take responsibility — you’ve asked a bad question.
It’s not the witness’s fault, it’s your fault.  Don’t blame the witness — you need to ask a better question.  To avoid the same problem I encountered, try leading him past the land mine of the suppressed issue.  He never would have mentioned “HGN” if I’d done a better job of framing my question:

Q. “You asked the defendant to perform some field sobriety exercises?”

A. “Yes sir.”

Q. “Let’s talk about the exercises. Did you ask him to perform an exercise called the ‘One Leg Stand?’”

A. “Yes sir.”

Q. “Describe the ‘One Leg Stand’ task as you described it to the defendant that evening.”

See?  If I’d worded my question with more care, we would have safely walked through the minefield.  The officer would have known what to talk about, and we could have traveled safely from here.

Whatever goes wrong in court is your fault.  If the witness doesn’t understand, that’s your fault.  If the witness is confused, it’s your fault.  You need to rephrase
your questions so that they understand:

Q. “Where did you go afterwards?”

A. “I went to the 7-11.”  (There were two fights.  He went to the 7-11 after the second fight.  You want him to talk about where he went after the first fight).

Q. “I’m sorry, I wasn’t very specific with my question — I meant to ask, Where did you go after the first fight in the bedroom?”

Take responsibility for every misunderstanding.  Stephen King, in his wonderful book, On Writing, says that when the reader doesn’t understand, it’s the
writer’s fault, not the reader’s.  The same principle doesn’t only apply to witnesses that you call to the witness stand, it also applies to the questions you ask during jury selection.  Take responsibility for their misunderstanding.  If a juror gives you a nonsensical answer, apologize for not phrasing the question very well and rephrase it in simpler language. If a juror doesn’t understand, say, “I’m sorry, I didn’t phrase that very well, did I?” or “That was a terrible question, wasn’t it?”  Then ask the question in simpler terms.

If you’ll accept responsibility for every misunderstanding, and then correct it so that everyone understands, you’ll soon become one of the most persuasive attorneys in your courthouse!

(And if you don’t understand this message, it’s my fault, so email me and I’ll fix it!)

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6 thoughts on “It’s all YOUR fault!

  1. Interesting article. Looking at this from a different perspective, your advice can be applied outside of the courtroom. Regardless of the situation (to a degree), we are responsible for our actions. Of course we can’t control everything. When a problem arises, it is how we approach it.

  2. Great article. Wondering if you have written, or will, pertaining to the challenges encountered when dealing with corrupt judges, and groups of corrupt judges/appelate justices when the rights to a jury have been attacked (abolished), as in civil matters in California.

  3. As a whole I think your newsletters are incredibly helpful, then again I’m a 1L so this is the only trial anything I’m exposed to.

    Even still I think it is incredibly valuable information

  4. This was really a great lesson. I knew you were going to say that the officer mentioned the nystagmus test, but I never thought about the question asked that caused him to mention it in telling the truth. This has put a lot on the table for me to consider when questioning the witness. Great insight. Mr. Wilcox I have really found your teachings to be a great help to me. Keep up the good work.


  5. I want to thank you for your article and the attached Sacramento Bee article. I teach trial advocacy and have emphasized to my students that 1)it is their responsibility to become educated in both the law and how to present it intelligently and understandably (thus, be glad that trial skills is now part of the California Bar exam and you have to take this class), and 2) everything that happens in trial ultimately comes down to your responsibility (even the occasional, miserable, incompetent judge).

    I have been a subscriber to your newsletter for the last 6 months and found both it and your Complete Trial Lawyer Success System to be invaluable aids to my teaching and wish I had had them when I was trying cases!

    Thanks, and keep on educating us all.
    Sincerely, Madelyn J. Chaber