Luke Ford

Here are some excerpts from this 2011 Janet Malcolm book:

* What they say in their opening statements is decisive, of course. If we understand that a trial is a contest between competing narratives, we can see the importance of the first appearance of the narrators. The impression they make on the jury is indelible. An attorney who bores and irritates the jury during his opening statement, no matter what evidence he may later produce, has put his case at fatal risk.

* …is a measure of what judges feel they can permit themselves in their courtrooms. The absolute power they enjoy eats away at the self-doubt that the rest of us depend on to keep ourselves more or less in line.

* Trial lawyers are storytellers who try to keep the lines of their stories straight and clean.

* If any profession (apart from the novelist’s) is in the business of making things up, it is the profession of the trial lawyer. The ‘‘evidence’’ in trials is the thread out of which lawyers spin their tales of guilt or innocence.

* We go through life mishearing and mis-seeing and misunderstanding so that the stories we tell ourselves will add up. Trial lawyers push this human tendency to a higher level. They are playing for higher stakes than we are playing for when we tinker with actuality in order to transform the tale told by an idiot into an orderly, self-serving narrative.

* If witnesses abided by the oath to ‘‘tell the truth, the whole truth, and nothing but the truth,’’ there wouldn’t be the contradictions between testimonies that give a trial its tense plot and the jury its task of deciding whom to believe.

* No rooting in the courtroom, please. But rooting is in our blood; we take sides as we take breaths. The voir dire is nothing if not a recognition of the unattainability of the ideal of neutrality and the inescapability of bias. It’s a guessing game—each attorney, as he questions a prospective juror, tries to sniff out his inclinations. A juror who wants to be picked knows better than to reveal them.

* His direct plea to the judge failing, the teacher resorted to the subterfuge of answering the attorneys’ questions with such flagrant intelligence and subtlety that there was no chance of his being selected.

* Journalists are thought to be competitive, and sometimes they are, but their main feeling about one another is fraternal. Journalists love one another the way members of a family—in their case, a kind of crime family—do. In Democracy in America, Alexis de Tocqueville wrote of American journalists as persons of ‘‘low social status, [whose] education is only sketchy, and [whose] thoughts are often vulgarly expressed.’’ He went on to note that ‘‘the hallmark of the American journalist is a direct and coarse attack, without any subtleties, on the passions of his readers; he disregards principles to seize on people, following them into their private lives and laying bare their weaknesses and their vices.’’ Over the years, the social status and the education level of journalists has risen, and some journalists write extremely well. But the profession retains its transgressiveness. Human frailty continues to be the currency in which it trades. Malice remains its animating impulse. A trial offers unique opportunities for journalistic heartlessness. When the malignant, often libelous words of battling attorneys are lifted out of the heated context of the trial and set in cold type, a new, more exquisite torture is suffered by the object of their abuse—who now stands exposed to the world’s abuse. Journalists attending a long trial together develop a special camaraderie born of a shared good mood: their stories are writing themselves; they have only to pluck the low-hanging fruit of the attorneys’ dire narratives. They can sit back and enjoy the show.

* …Alla spoke of the xenophobia of the earlier Russian-Jewish immigrants toward the newcomers from Central Asia and cited some of the more extravagantly stereotypic characterizations: the Bukharans were alien and not altogether civilized—savage, tribal people, capable of violence, even of murder. They were Jews but not proper Jews, more like Muslims than like Jews. They had dirty living habits—things were strewn about in their front yards. On the other hand, some of them were mysteriously, sinisterly rich, and built showy McMansions that had no place in haimish Forest Hills.

* The sidebar conference is a form of pas devant les enfants. The children (the jurors and spectators) are put out of earshot so that the grown-ups (the attorneys and the judge) can talk about things their charges shouldn’t hear.

* Journalists request interviews the way beggars ask for alms, reflexively and nervously. Like beggars, journalists must always be prepared for a rebuff, and cannot afford to let pride prevent them from making the pitch. But it isn’t pleasant for a grown man or woman to put himself or herself in the way of refusal. In my many years of doing journalism, I have never come to terms with this part of the work. I hate to ask. I hate it when they say no. And I love it when they say yes. Schnall said yes. He said there were things he could tell me about the law-guardian field that would amaze me—dark, bad things—and gave me his phone number.

* Evidently, to be a good trial lawyer you have to be a good hater. A lawsuit is to ordinary life what war is to peacetime. In a lawsuit, everybody on the other side is bad. A trial transcript is a discourse in malevolence.

* Joseph and Nalia evidently felt no impropriety in speaking unguardedly to a journalist. Murder violates the social contract, and makes a mockery of privacy. As they had eagerly cooperated with the prosecution, so they eagerly told me their stories—as they had been telling them to other journalists—in the perhaps not so far-fetched belief that journalists are part of the criminal-justice system: small but necessary cogs in its machinery of retribution. As losing defense lawyers are wont to do, Scaring had spoken bitterly of the role of the press in his defeat. He said that the defendants had been tried and convicted in the press, and it is true that the press had made the prosecution’s narrative its own. Journalism is an enterprise of reassurance. We do not wring our hands and rend our clothes over the senseless crimes and disasters that give us our subject. We explain and blame. We are connoisseurs of certainty. ‘‘Hey, we got the killer. Don’t worry. You can go to the playground. Nothing is gonna happen.’’