Until the 20th century, the best drama most Americans could see was found not on screen but in their county courthouse. Today, we can sit at home and watch 100 years of film and 70 years of television. Cavernous courtrooms built to accommodate 100 or more observers now sit quiet save for days when courts have scheduling conferences and insist that lawyers show up with their calendars. Even fascinating or heinous crimes often are tried in nearly empty courtrooms. People are “busy.” Besides, if murder is your topic, HLN packages them in 30-60 minute segments. Why sit and watch a whole trial?
But people did this week. Both CNN and Fox ran State v. Murdaugh, a case in which a prominent personal injury attorney in South Carolina is charged with the murder of his wife and youngest son in June, 2021. I have been a trial lawyer for 41 years but never watched a trial like this. It makes for some interesting viewing.
Let’s start with the easy part. Alex Murdaugh stands accused in a criminal trial of murdering his wife and one of his children. In South Carolina the penalty is death or 30 years imprisonment. While most clients in divorce cases may not agree, it’s a different legal standard (beyond reasonable doubt) and as nasty as divorce may seem, no is electrocuted or faces 30 years behind bars. It may feel that way, but it isn’t.
It’s a difficult case because on its best day the evidence is circumstantial. As a divorce lawyer, it fascinates me that days of trial can be consumed about what occurred during a few hours on the evening of June 7, 2021. In my world, we commonly try the facts developing during a 30 year marriage in 3-5 days. About 80% of what was discussed during the Murdaugh trial would have been excluded as irrelevant in my world. But as we just said, no one is executed for adultery or mismanagement of money.
The other thing that jumps out if you watched the trial is the resources it consumed. Each side appears to have four people at counsel table. Audio and video exhibits are queued up in an instant. The Murdaugh trial parses words as freely as a divorce trial will parse years in a marriage. The contrast is dramatic. Yes, your spouse may have bought bitcoin with the family’s nest egg in November 2021. And yes that crypto is today worth 1/3 of the then purchase price. Absent some compelling facts, the milk has spilled and we will divide assets based on current value. Clients love to think that divorce courts will want to know about infidelity or abuse in excruciating detail. Alas, in a no fault world, it matters very little and the longer a spouse tolerated such conduct, the less sympathetic they seem.
What made last week’s trial especially interesting was the criminal defendant’s decision to take the stand in his own defense. That is exceedingly rare and, all the more so, because the defendant is a lawyer with almost 30 years’ experience. In a criminal trial, when the defendant does testify he is open to a broad range of cross examination on subjects that can extend far beyond the crime itself. And that is what happened here.
Prosecutor Creighton Waters went after Alex Murdaugh like scenes from the movie Jaws. He would be friendly and gregarious one moment then you saw the shark circling with questions about financial crimes, lies told to the investigators and inconsistencies between testimony and cell phone and auto tracking records.
In almost each instance Murdaugh did what he needed to do. He kept his cool and was unfailingly polite even when it was clear that Waters was deep under the defendant’s skin; making him look stupid or asking him again about how many clients he stole from while working as a lawyer. If you think that someday you will be in the witness box, there was a lot Murdaugh taught about how to be a witness. He answered the questions and when he fought with his adversary he did so politely and suggested that the prosecutor misunderstood. It is probably no secret that lawyers are animals affected with ego and personal injury lawyers may fall into a special category. But, Murdaugh tamped that down even when the prosecution offered him the chance to describe his skills or greatness. He did that because, as a trial lawyer, he knew that once he rose to accept the bait about his income, his verdicts and his settlements, the prosecutor would circle in and ask “And after getting all than money for your seriously injured clients you stole money from them in addition to the fees you received?” Murdaugh saw that shark in the water and each time swam away. Along the way, however, he understood that he had to admit to the financial crimes if he stood any chance of convincing the jury that he was honest in professing innocence in connection with the deaths of his wife and child by someone using his guns on his property when he had been near the place they died 20 minutes before they were shot.
The lessons here for those who may someday testify in support, custody or divorce proceedings are several.
- Your case is not as fascinating as you think it is, even if it is fascinating.
- The best witness is a humble witness who treats the lawyer doing the examination
- with respect and professes to help the court understand what it true rather than what isn’t. Whatever you think of Murdaugh as a person, the commentators for CNN and Fox acknowledged he was a very effective witness.
- Answer the question asked and then offer what you need to say if the answer leaves the wrong impression. But lengthy speeches or unduly curt answers makes the witness look small and either grandiose or cagey.
- Don’t hunch your shoulders when you testify. This was Murdaugh’s consistent failing. A lot of the time, he looked like he was testifying in a hailstorm….which he most certainly was.
There are all kinds of excerpts of the trial on the internet. If you haven’t seen any, it is worth a visit to observe how trials really work. The lawyers are polite to each other and the presiding judge does a great job of staying out of the way and letting the trial “play out.” It doesn’t always work that way.