We’ll be featuring a profile of James Lobsenz, a criminal defense and appellate lawyer with Carney Badley Spellman in Seattle, and the ACLU’s cooperating attorney in the Witt v. Department of the Air Force case, in the next issue of Washington Super Lawyers. But we had such an interesting conversation with Mr. Lobsenz we couldn’t include it all in the story. Here’s part of what was left out.
Do you prefer arguing before juries or judges?
I don’t know if prefer enters into it exactly. Is that a different way of asking do I prefer trial work or appellate work?
Juries can’t talk back. Which can be a slightly good thing but is mostly a bad thing. Because you don’t know what they’re thinking. If they could only talk to you, it would be less like you’re in the dark.
You talk to them and talk to them and talk to them, and they sit there. There are 12 or 13 people in the box there. Sometimes the heads are nodding up and down like this. Sometimes they’re [folds his arms] arms folded and they’re squinting at you. So you end up concluding that the ones who barely have their eyes open–and when they do have their eyes open seem to have a scowl on their faces–are just not buying a word you say. And the ones whose heads are nodding up and down, you think, “Well, they’re with me.” And you go off, thinking, “I counted four heads nodding with me, and two people scowling at me, and the rest of them aren’t saying a thing and I wonder where we are.”
Then it turns out the one whose head was nodding up and down, the one you really thought bought everything you said, he thinks your entire case is ridiculous. And the scowler is on your side.
If they were allowed to talk back and say, “Hey, fine, Mr. Lobsenz, but what about this?” we would have more of a dialogue. It wouldn’t be such a complete surprise half the time what some of them were thinking. And it would be more meaningful in some ways.
Well, you get that with judges. That’s great, you get that with judges. They sometimes interrupt you and ask, “What do you mean by this?” or “What do you mean by that?” and you can get in a real dialogue. And that’s good. Kind of. Sometimes you find out, “I’m not persuaded by that at all; that sounds ridiculous.” [Laughs]
So it’s good and bad. Jury trials have a certain heightened amount of tension: more people there; somewhat more formal. In a bench trial things are a little more relaxed. I don’t know that I prefer one over the other. They’re just different.