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The Importance of Emotional Factors in DUI/OWI Trials

By Andrew Mishlove on March 16, 2012


Consider the case of a lawyer who has an exceptional analytic mind – a full-fledged scientific genius. He understands analytic chemistry, statistics, probability theory and forensic science better than all but a very few people. These are extremely valuable attributes for any lawyer, especially a DUI defense lawyer.

Now, consider how this lawyer might handle this DUI case.  As is very common, the state will rely on badly flawed chemical test evidence. The lawyer knows the evidence inside out, backwards and forwards. At a technical level, his knowledge is far superior to any of the state’s experts. He is absolutely correct that the state’s test was worthless.

He may still lose the case.

Why? Because trial advocacy is not only about technical evidence; it is more than anything else about communication and persuasion. These things are not driven by technical analysis; they are driven by emotion and instinct.

Gerry Spence and Andrew Mishlove - Wisconsin criminal lawyer

For example, think back to the last election. Ninety percent of those voting chose the candidate they FELT better about. Analysis of the issues (taxes, health care, etc) was driven by feelings, not the other way around. Politicians know this very well; and, political messages are quite calculated to appeal to emotion rather than reason.

Even as a beginning trial lawyer 31 years ago, I knew that the client’s image is the key to the case. It is the first of my “Seven Key Factors to OWI Defense.” I now take this several steps further. Why is this central to the case? What aspects of the jurors’ psyche are involved in judging the client and case? How do we communicate to that aspect of the jurors’ psyche?

Psychological research and experience teach us that there are basic human drives that overpower all other thought processes: the survival instinct, the instinct to procreate and protect our young. These are our most basic and powerful motivators – drives that we share with all living creatures. They are, by far, the most powerful factors in all of our affairs. Humans, of course, are complex, with high-level and nuanced emotional and thought processes; but these are driven by our basic instinct. Trust, love, empathy and affection are expressions of this. So are fear, mistrust, anger, hatred, and so on.

So how does this relate to DUI defense? The simple reason that prosecutors view these as easy cases (and the reason they win cases that they should lose) is FEAR. Drunk drivers are a threat. They will kill you. They will kill your children. They are evil. Jurors fear them; and people want to kill what they fear. The image of the drunk driver plays on the most basic human instinct to survive: to kill the predator that threatens our own survival. This is the jurors’ basic underlying motivation when they listen to the evidence about whether or not the chemical test result is based on a reliable statistical method of calculating the probability of uncertainty.

So how is it that any lawyer ever wins a DUI case? How is that that some lawyers (including myself, my associate Lauren Stuckert, and the great lawyers of the NCDD and Trial Lawyers College) win many of these cases? That is the science, art and craft of the master lawyer. It comes to some lawyers naturally and some lawyers never get it. It can be learned and practiced; and it is what separates good lawyers from great lawyers. So, let’s take a look at the methods of one of the great lawyers.

I recently had the great pleasure and honor (and it is not an understatement to say epiphany) of attending a seminar hosted by one of the greatest lawyers: Gerry Spence. In his eighties, he is still vital, sharp and charismatic. He has always been a hero of mine, and I now have the honor of saying that he is a mentor. Gerry Spence emphasizes the underlying instinctive and emotional factors in trial advocacy. Spence has taken that aspect of trial advocacy and made it central to the craft -- raising it, ironically, to a scientific level.

One of Spence’s most powerful revelations is that in order to touch the jurors deeply, we must be in touch with ourselves. If we want the jury to accept us as trustworthy, genuine, adequate and sincere, we must also do so for ourselves. It is not a matter of guile or sophistry; but rather, is a matter of sincerity, enthusiasm and genuineness. It is our humanity itself that touches the jury as we explore the basic themes of trust and fear that underlie all trials. How do we do that in a DUI case? How do we communicate to that aspect of the jurors’ psyche?

As noted above, the client’s image is the most important factor in winning a case. That is because unless we can humanize our clients, get the jury to know them as a real person instead of merely a threatening stranger, we have no chance of getting the jury to critically analyze the driving, field sobriety test or chemical test. We must dispel their underlying fear of “the defendant” and replace it with a bit of trust.

Unless we, as lawyers, are open, sincere, candid and trustworthy, we cannot create a bond between ourselves, the jury and our client. Creating that bond is the highest level of great lawyering.

The other side of the equation is trust of the police. Part of our basic instinct to survive is trust of our protectors. As a small child, our mother protected us from danger. If we saw a frightening stranger, we hid behind our mother. That is built into our DNA at the most basic level.

In a DUI case, the prosecutor wants the police to represent the mother and portray the defendant as the frightening stranger. A great DUI lawyer is an artist at displacing the fear of the client and exposing the threatening nature of police power. In our deep psyches, we want them to be the protector.

We are, however, all aware that the government and the police can also be the frightening stranger – the threat to our survival. Our Founding Fathers understood that when they drafted the Bill of Rights. It is a basic theme of our democracy and a fundamentally patriotic idea.

When the police and the government act appropriately, follow the rules, adhere to proper procedures and respect our rights, then they are our protectors. When, however, the police and the government act as though the ends justify the means, bend or break the rules, only follow procedures that are convenient and put our rights at risk, then they are the threat. They are, then, no longer our protectors; they become our betrayers.

This is not a personal attack on police -- most of whom are decent, likable and honorable people. This is an exposure of the threatening nature of government power.

Survival is the driving instinct of all life. It drives all decisions, including jurors’ decisions. It drives DUI trials. Trust and fear are the emotions that flow from that instinct; they motivate jurors’ thought processes when they analyze the evidence.

While great DUI lawyers are experts on evidence (Standardized Field Sobriety Testing, chemical testing, technical law, etc), the primary skill of a great lawyer is communication. Communication comes from touching jurors at the most basic levels of the human psyche.

It is our own honesty, candor and self-acceptance that invite a jury to listen to us and see our client as a real person. The wonderful paradox is that to be a truly great advocate for another person, we must always strive to be truly ourselves.

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