Ten commandments for second-chair counsel

By Mike Holley
First Assistant District Attorney in Montgomery County

Through a complicated and circuitous set of circumstances we won’t take time to discuss here, we have recently discovered a cuneiform tablet from the ancient Sumerian city of Uruk.[1] This tablet, incredibly enough, contains the “Ten Commandments for Second-Chair Counsel.”[2] We now offer these ancient bits of wisdom with brief commentary for your consideration.

Commandment I: Thou shalt always remember that you are the Second Chair and not the First.

There is a wide spectrum of how prosecutors participate with others at trial. On one end is an attorney who is told to sit beside lead counsel simply to keep a seat warm. (“Good morning! So what’s your case about again? Intox manslaughter? Got it. Interested to see what happens.”)

            On the other end—with many permutations between—is the “co-First Chair,” an increasingly popular option for a number of reasons, including optimizing trial stats for each.

            But the ancients, who neither knew nor cared about trial stats, seemed to believe that ultimately one person must be in charge and not two.[3] This is for good reason. Almost every trial has a critical moment (or moments) in which a difficult decision must be made quickly and with confidence. Decision by vote or consensus simply will not do. The decision must be made, and it must be made by the First Chair. If the Second Chair usurps this authority, if there is confusion about this authority, or if there is unnecessary delay in the exercise of this authority, dire results are likely, if not inevitable.[4]

            Additionally, trials are an individualized creative process—a highly intentional weighing and weaving of emotions, issues, and facts into what might be best described as a unique work of both art and science. The creator (First Chair) has a vision for what she’s doing, and she’s likely the only one who knows every facet. Or, if you like, the First is essentially crafting a very particular stew according to a special recipe in her own mind. We know from our own stew-making experiences and modern lore that a second cook (or third or fourth) can often make something that ought to be delicious into something completely unpalatable.

            Finally, if our own great body of wisdom—namely movies—have taught us anything, it’s that in the end, “there can be only one.”[5]

Commandment II: Thou shalt know all of your assigned and particular duties and perform them diligently.

Asking “Should I take this next witness or do you want to?” in the middle of trial is sub-professional practice. Trial is stressful enough (even when done correctly) and contains many unexpected turns and twists. Assigning roles as clearly and early as possible increases the probability of success of any particular task. Let co-counsel know—now—if you want her to open in the trial next week so that she (and her subconscious) can begin work on that task. Just as importantly, by letting a colleague know what her tasks are, you can close a mental loop in your own head and focus on other things.

            Common questions you must answer before trial: Which witnesses do you wish me to take, if any? What types of anticipated defense witnesses should I prepare to cross? Who will prepare the charge? Who will read the indictment to the jury? We all know these tasks must be done, but the assignments still need to occur, and they need to occur as clearly and as early as possible. And, for the Second Chair’s part, when assigned to a trial as a Second, she must be prepared to fulfill it in such a way as to fully accomplish the intent of the First for this particular trial. (And to that end, the more the Second knows about the trial and the First’s intent for it, the better.)

Commandment III: Thou shalt not talk to the First while the First is listening to another, nor shalt thy write to the First while the First is reading something else.

There is an “ear” gate and an “eye” gate into the mind. Two streams of information can enter the mind through these gates, but not through the same gate at the same time. That is to say: One can watch (the “eye” gate) a video on a screen while listening (the “ear” gate) to co-counsel. Similarly, one can listen (ear) to a 911 recording while looking (eye) at a photo, and one can hear what a juror says while looking at seating chart, or one can listen to a juror while watching his body language.

            What one cannot do is listen to a witness while co-counsel whispers into his ear what the next question should be. One cannot watch a witness draw on a diagram while reading a case to support an upcoming objection. That’s because each gate can receive only one stream of information at a time. One stream, one gate. Don’t cross the streams.

            When acting as the Second, then, I should be mindful of this reality. I can slide a note with a suggested question across the table to the First during his questioning of a witness. Or, if he is watching a demonstration, I can quietly tell him that our key witness has arrived and is in the waiting room. One stream, one gate. Now that you know the rule, you can vow to abide by it.

Commandment IV: Thou shalt provide food and water to the First as needed.

Trial is a taxing, arduous experience. The mind can produce only what the body supports, and the body can provide support only to the extent it is properly cared for and nourished. The Second can greatly help by providing the basics—food and water and coffee—for the First. These are the types of things the First should not have to worry about so he can focus on the trial.

Commandment V: Thou shalt keep the lists of exhibits, elements, and witnesses and guard them diligently.

Professionals keep checklists; amateurs wing it. And checklists don’t keep themselves. Keeping lists is a perfect assignment for a Second Chair—it requires careful attention but not creativity. (Leave the creativity for the First.) And part of keeping a checklist is not losing that checklist amongst all the other papers. (Pro tip: The ancient Sumerian bar apparently used a different colored clay tablet for the exhibit checklist so that it stood out amongst all the other tablets on counsel table and could be located quickly. Not a bad idea for us to borrow.)

Commandment VI: Thou shalt oversee exhibits, witnesses, mints, instructions, kerchiefs, sticky notes, the stylus, and the clay.

There are a lot of moving parts in a trial, and many of those moving parts are little things—but important things. Documents. Highlighters. A safety pin for a rip in a blouse or trousers. A binder clip for a list of exhibits. A disk with a video. A good Second has those things at hand and under control.

            Along those same lines, the diligent Second ensures that the exhibits that actually go into the holy of holies—the sacred deliberation room—are what they ought to be, and no more nor no less. Other moving parts of a trial are, of course, the people, and the good Second is a witness wrangler “par excellence.”

Commandment VII: Thou shalt take notes with utmost care, especially when the First speaks to jurors.

As soon as testimony is uttered, it dissipates. A witness says four things, and the prosecutor hears three, remembers two, and repeats one. Notes make all the difference: “The faintest ink is more powerful than the strongest memory,” as the ancient Chinese philosopher Confucius probably didn’t say. But notes really do matter, and they matter a great deal. The Second is ideally situated to take notes when she doesn’t have to focus on formulating the next question or objection. This is particularly and uniquely true in voir dire where the First can ideally focus on speaking to, listening to, and carefully watching jurors, which he cannot do if he is frantically writing down the (often complicated) comments of a juror who has taken to heart the urging of counsel to “freely speak your mind.” The same is true of witness testimony.

            Simply put: A Second who takes good, clear notes in such a way as to make information later accessible in trial is worth her weight in goats. [6]

Commandment VIII: Thou shalt not distract the First nor impede his efforts in any way.

The First must be singularly focused—all the burden of the battle rests ultimately on his shoulders. There are many, many distractions in trial, but the Second cannot be one of them. Questions, suggestions, and comments should be reserved unless and until they assist the cause. The best Second is present when needed and invisible when not. The Second also should not be easily offended by the direct nature of the First under fire. (Thick skin is essential equipment for a trial lawyer. Remember that. A trial is often a knife fight, not a high-school debate.) The Second should bring no additional drama to the table as drama is already present in abundance.

Commandment IX: Thou shalt freely offer encouragement, hope, and humor  but shall avoid negative comments at all costs.

Trials are inherently emotional experiences performed by emotional actors in an emotional setting. The roller coaster nature of trial inherently possesses many difficult and diverse challenges to the prosecutor’s mental fortitude.[7] The Second should be there to bolster, not burden, the First. A joke at the appropriate time (but not an inappropriate time) does wonders. Encouragement from the Second is like “apples of gold in a setting of silver.”[8] Advice, especially when requested, can make all the difference in an outcome and will be forever remembered and cherished. The one thing the Second cannot do—even if she feels it deeply herself—is to say or do anything that would discourage the First. Plenty of others are willing and able to take up that task already.

Commandment X: Thou shalt show but one face toward the adversaries and all observers.

There is an aspect of warfare in trial work. Adversaries (and jurors) intently study counsel at the table, and they may value the observations they make themselves over the evidence fed to them.[9] So, for example, a Second who is texting away, oblivious to testimony, or clearly bored with the proceedings, sends a powerful message to jurors—and it’s not a good one! When a Second appears shocked by devastating and damaging testimony from a defense witness, the jurors notice—and the damaging effect is amplified.

            More significantly, any obvious disagreement between the First and the Second invites aggression and agitation from opposing counsel and sows doubt and distrust in the hearts of the jurors. Therefore, the First and Second must always, always maintain a unified front between them even if strong disagreements occur behind closed doors. And they might.

Conclusion

And there you have it—ancient wisdom for modern times. Whether or not these commandments are unreasonably ideal or always appropriate for every office or trial will be up to you to decide!

Endnotes

[1]  Uruk was one of the most important cities in ancient Mesopotamia. It was founded by King Enmerkar around 4500 B.C. https://www.ancient.eu/uruk.

[2] This is not true. I made this up.

[3]  “A multitude of rulers is not a good thing. Let there be one ruler, one king.” Homer, The Iliad, circa 750 BC.

[4]  There is, of course, an exception for a supervisor who must prevent a disaster.

[5]  Unless we are talking about Highlander II: The Quickening, which is a terrible, terrible movie. So let’s not talk about it.

[6]  Goats were very, very valuable in ancient Sumer. Probably.

[7]  The typical pattern is this: I cannot lose this trial. I cannot win this trial. Throw up. Repeat.

[8] Ancient Hebrew, circa 700 B.C.

[9]  Some of these observations occur in the hallway or the parking lot.