I studied International Relations as an undergraduate at Tufts University. I was intrigued by its academic rigor and the hope for the world that it provides (in theory). I was mystified by the way diplomacy was conducted. I was living in a liberal world and I was a conservative vold warrior. I was energized by Pat Moynihan who was willing to call out the Russians while the US Ambassador to the UN and I was not "Diplomatic" as many of my classmates were. I was seen as a "hawk" and a "bull in the China shop". Not diplomatic material in a staid world of international diplomacy. I was called "jingoistic" because of my unbridled position "My country right or wrong." Of course that was before President Reagan showed us all what it meant to be an American. I am perfectly good with criticism of my country from within it. In fact I think such criticism is part of being a good citizen. I will not however take it easily from some outsider who has no idea what it means to even be an American. So naturally I became a trial lawyer.
I have been enjoying the HBO Film "The Girl In The Cafe" which is technically about the "needs" of the worlds rich nations to forgive the debt and energize the poor nations of the world. It is set at a G8 Summit. The comedic part of the movie is how a British "commoner" gets into the summit and calls out the stuffy diplomats, using the plain talk and basic understanding of "the people." I am not writing to endorse or criticize the politics of the film. Rather I want to teach the power of the example it sets in the behavior of the commoner: the "Girl" in the cafe. Our usual Juror.
One of the lessons in the movie is the importance of making even the most difficult issues bite size and understandable while keeping them compelling. A second and even greater challenge is the need to acknowledge the "elephant in the room" in other words drop the veneer of Political Correctness and say exactly what needs to be said. It is both funny and painful to watch the Bigwigs in the film squirm when put on the spot by the "Girl's" simple questions. They don't want to give the simple answer which (in the film) is "we don't have the will to rid the world of poverty."
Now forget the political message of the film, and imagine a courtroom. The "Girl" is asking simple leading questions to which the only answer is "because we don't want to." However that answer is devastating to the position of the proponent of the answer. They try to evade it, by complicating it. She keeps asking the simple question. They say it is not that simple. They suggest she is dangerous because she has too little knowledge. She suggests too much knowledge keeps them from seeing the real problem. She keeps asking and soon enough everybody has to acknowledge the "Elephant in the room."
This happens in court all the time. Often we are just too polite to call out someone that needs calling out. I had a judge who was well known for turning his back on the jury when he gave the reasonable doubt jury instruction. No one knew what to do about it. He was a really cantankerous guy to begin with, and few young lawyers (or old ones for that matter) wanted to take him on, fearing losing the jury. One day while dishing about it at our local watering hole, we decided that the jury, the spectators, and God could see just what he was doing. The only people who wouldn't know about it were the judges of the appellate court. We decided that we would put it on the record the next time he did it. Not at side bar, but right there in front of everyone. He denied he was doing it for the record and he yelled and screamed at the lawyer but, he didn't turn his back on the jury when he gave the charge on any case where the lawyer had called him out on it. Just as it was uncomfortable to watch the "Girl" in the movie make social faux pas after faux pas, it was uncomfortable to have to call out this judge. It was also the only way to force the issue.
In Vior dire I see this failure to acknowledge the "elephant in the courtroom" a lot. For example: not wanting to offend, the defense attorney tells the jury they are going to hear some rough language on tapes and coming from the mouths of witnesses. Can they still give the defendant a fair trial even though they may believe he said some of those things? The jurors all say yes expecting to hear the venacular, the usual cuss words. Then a black juror hears the defendant refer to a black girl as a N---er ho, and he cannot forgive the defendant and the guy goes down because the juror was not faced with the fact he was going to hear the infamous "N word." Everyone in the trial knew the word was coming. It was the elephant in the courtroom. It has to be acknowledged.
Acknowledging the elephant in the courtroom is a way to make the jury believe in you. They do not understand much of what we are doing or why we do it. When we dance around the issues and do not go right for the point they realize we are either afraid of it, don't know it, or worse. It gets them off point and it allows the another player in the trial to misdirect their attention. Learning to deal with the unpleasant stuff upfront will make you the more trusted and believable advocate.