I just finished an audio version of Scott Turow’s latest novel: Presumed Guilty. I was looking to try something by Turow, and chose this one at random, having no idea that it was hot off the presses with a January, 2025 publication date. I also had no idea that it would do double-duty. Not only was it a really good legal yarn, but it also transported me back to the days when I was trying jury trials myself.

The story brings back the protagonist from Turow’s first book from the late 1980’s – “Presumed Innocent”. Rusty Sabich is now a 70-year-old semi-retired lawyer living in Wisconsin’s lake country. He has been a prosecutor and a judge, but now tends a low-stress part-time mediation and arbitration practice. Until his fiancée’s 20-something son is charged with the murder of a young woman, and then he is (against his better judgment) talked into defending the boy. The book is worth a read (or a listen) on the merits of the story, but what really grabbed me was Rusty’s 1st person narrative of the jury trial, which makes up a good portion of the story.

During my career as a lawyer, I tried several jury trials. I wrote about my first one here, where I defended against some poor schmuck who thought he could represent himself. It turned out that he couldn’t, at least not successfully. All the other times, probably about a dozen, were against attorneys of varying degrees of skill and experience.

Most times I watch a trial scene in a movie or on television, poor Marianne is stuck listening to me either shout objections that the on-screen lawyers are failing to make, or grousing about the awful questions being asked. This book provided a respite from that kind of thing, with the narrator describing many of the things I experienced at one time or another.

In one chapter, Rusty has prepared in ways the prosecutor has not, and eviscerates a pompous prosecution witness with proof that his testimony could not possibly be true. Most of the time, a cross-examination is not how it looks in the movies. No witness has ever dramatically admitted that they were lying, and the best you can hope for is to poke some holes in their narrative or cast doubt on their credibility. I can tell you that there are few things as thrilling or as satisfying as conducting a triumphant cross-examination that leaves the opponent’s witness almost in pieces. I vividly remember one of those times.

A client had sued a former employee who had started doing side jobs with the client’s customer and keeping the fees for himself. The former employee counter-sued, claiming that my client had interfered with (who he now claimed was) HIS customer. I had spent time poring over the opponent’s tax returns, and after his lawyers guided him through his testimony it was my turn to go to work. In a series of step-by-step questions I got him to acknowledge that he filed tax returns, that he had signed them, and that his signature was a verification that the figures were true. He seemed totally surprised as I walked him through the numbers which showed that the revenue he was claiming as his own was not listed, leading to the conclusion that 1) the money from the client was not really his or 2) that he was a tax cheat who was not declaring income. When I finished and sat down, my client excitedly whispered to me “He was ashen!” I still have the paperweight that the client made for me afterwards, a reduced copy of the judgment in our favor encased in a 3×5 inch block of clear acrylic.

At another point in Rusty Sabich’s murder trial, he filed a Motion to dismiss the case for lack of evidence. I would routinely prepare one of these in the civil trials I defended. These are filed at the close of the Plaintiff/Prosecutor’s case, and the argument is that even if everything proved is true, the proof did not check off every necessary element of the case. Rusty’s Motion gets denied (which is what almost always happens), but I got one granted.

In my case, I was defending a self-serve car wash, the kind where you get out of the car, insert some coins, and use the spray wand. The plaintiff drove into the bay on a cold winter day, and claimed that she slipped on ice that had accumulated over the drain trough, the only un-heated area of the floor. At trial, her attorney presented her entire case, including that she had slipped. To my astonishment, he never once got his client to utter the words ice or snow. When the plaintiff rested, I made my motion. The judge took probably an hour listening to testimony being replayed and eventually concluded that without actual proof that there was something other than water on the floor of the wash bay, he had no choice but to issue judgment for my client. This is one of those things that happens once in a litigation career (if you are lucky) and I never felt better than the night I walked out of that courtroom.

Rusty Savich also rues his occasional mistake – as have I. I remember an early cross-exam of the plaintiff’s doctor, in which I asked one question too many. I had walked the doctor through his report, emphasizing all of the points that could theoretically undercut his opinion. It was all going fabulously until I let my ego and inexperience get the better of me and tried to push him that extra few inches in my favor. At which time he smacked me with an explanation that was so perfectly reasonable that I should have seen it coming. The senior partner I was working with was understanding. He said to me afterwards: “That was almost a perfect cross. You had the ice cream. You had the chocolate. You had the whipped cream. But then you went for the cherry on the top and everything went to hell.” That was a bad feeling, but one that everyone who has ever tried a jury trial has experienced at one time or another.

Another experience Turow and I shared was doing or saying something that would not sit well with the jury. In my second jury trial, I was still quite inexperienced. The senior partner I reported to hired “local counsel” from the small town where the case would be tried. This used to be common practice when we tried a case outside of our own county, and it wouldn’t hurt that the guy’s experience would guide me. It was a serious case in which my client drove a car that hit and killed a child who ran out in front of him on a country road. I had presented evidence that the kid and his older sister were playing a game where they hid behind a bush in their front yard, then took turns running out in front of the rare car that came along. That verdict came in against us. That time it was my local counsel who said the wrong thing. He was more experienced than I was and we were in his county, so we agreed that he would make the final argument to the jury. He suggested that sometimes it is God’s will when a child is killed. I didn’t like the way it came out when he said it. And I’m pretty sure that the jury didn’t either, because the other side got a significant verdict. It was not a good feeling for a young trial lawyer.

I will confess that I really enjoyed the thrill of accompanying Rusty Savich in that murder trial. And I remembered why I am happy that I am not doing them any more. People used to ask me if I enjoyed trying cases. My usual response was: I only enjoy them after the trial is over. Trials are exhausting. Most of mine lasted 3 or 4 days, but I had one that lasted for 7. Turow accurately describes the sensation as being like that of a fighter pilot constantly on the lookout for incoming threats, ready to react or evade at any moment. It was really hard for me trying to think two or three steps ahead while having to be hyper-focused on what was happening in the moment, when every single thing matters. When you are in the last days before or during a jury trial, you don’t have the mental bandwidth for anything else – that case is all there is.

Some lawyers really love trying cases. And I will admit that there are few times that lawyering can be such a high-wire thrill. But I was not one of those lawyers. I was pretty good at it, and won more than I lost, but I took on too much stress. A client (even if it was an insurance company with lots and lots of cases in litigation) was relying on me to make the best of a case, and I always felt like the client expected a perfect defense. In truth, they probably did not but that doesn’t really matter when I would take on that responsibility anyway – and always fail because the perfect defense is impossible in the way a perfect anything is impossible.

But I am now retired from that life, and find an occasional seat at counsel table (through a good novel) a treat. “Presumed Guilty” gave me the chance to re-experience the soaring highs and the crashing lows of a lawyer during a jury trial. And it was great fun – because I was not the guy who had the responsibility to reel in the win.