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My Cousin Vinny IRL

Brett Clark//April 7, 2011//

My Cousin Vinny IRL

Brett Clark//April 7, 2011//

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By Brett Clark

A New York lawyer with a degree from a little-known law school who has never tried a case in his life ends up defending a man accused of murder before a jury down south.

In Hollywood’s version, he comically bungles the case at first and finds himself in contempt of court due to several cultural misunderstandings before finding his rhythm and ultimately proving his client innocent through his vast knowledge of auto repair.  In real life, things don’t go according to the Hollywood script.

New York-based (and New Jersey-licensed) attorney Joseph Rakofsky took on the defense of Dontrell Deaner of Southeast Washington, D.C., in a trial for a fatal shooting.  According to the Washington Post this week, the Superior Court judge presiding over the matter declared a mistrial due to Rakofsky’s poor “grasp of legal procedures,” possible ethical violation, rambling hour-long opening statement and-most incredibly-his announcement to the jury that he had never tried a case before. [wince]

There are several lessons for new attorneys in Mr. Rakofsky’s story, some of which are hopefully self-evident.  Chief among them-never take on something like a murder trial for your first trial, especially if you’re practicing by yourself.  If you prevail, it could be a great start to a career.  But if something goes wrong, which is far more likely, then you could find yourself in a similar predicament.  According to the Post, Rakofsky not only took on a murder case for his first trial, but did so in an unfamiliar jurisdiction.  The article does not flesh out the details, but makes clear that the judge took umbrage with several procedural errors in his representation and that Rakofsky had multiple disagreements with his local counsel.  So in other words, not only was Rakofsky flying solo in a murder trial as a novice attorney, but he also rejected the advice of his more-experienced local counsel in the process.

Second, prepare your opening statement.  Plan it out.  Keep it relevant, efficient and brief.  Jurors do not generally enjoy listening to long-winded lawyers for any longer than they have to.  Instead of briefly laying out the case for his client’s defense, Rakofsky apparently left the yard:

[Judge] Jackson said the most evident sign of Rakofsky’s inexperience came during his rambling opening statements before the jury Wednesday, which lasted more than an hour, more than 30 minutes longer than most attorneys’ openings. During his opening statements, Rakofsky repeatedly made reference to children playing “in the projects of Southeast D.C., where there was always gambling, guns and drugs.”

“There are drugs in the projects of Southeast D.C. There are guns all the time and drugs,” Rakofsky told the jury.

The prosecutor repeatedly objected over the relevance of Rakofsky’s statements. Rakofsky said the “children” were a symbol of what his client had endured growing up in that neighborhood. Jackson told Rakofsky to focus on the case, especially because none of the “children” he referred to was scheduled to testify.

But no matter what, whether your first trial is a murder case or a dog bite, an attorney should never, ever, under any circumstances, tell a jury that he is trying his first case:

Later during his statement, Rakofsky informed the jury that the case was his first trial. The revelation shocked Jackson, the judge revealed at Friday’s hearing. “I was astonished someone would represent someone in a murder case who has never tried a case before,” the judge said.

Things are bad enough at this point, but it gets even worse:

What angered Jackson even more was a filing he received early Friday from an investigator hired by Rakofsky in which the attorney told the investigator via an attached e-mail to “trick” a government witness into testifying in court that she did not see his client at the murder scene.

According to the filing, Rakofsky had fired the investigator and refused to pay him after the investigator refused to carry out his orders with the witness. The filing included an e-mail that the investigator said was from Rakofsky, saying: “Thank you for your help. Please trick the old lady to say that she did not see the shooting or provide information to the lawyers about the shooting.” The e-mail came from Rakofsky’s e-mail account, which is registered to Rakofsky Law Firm in Freehold, N.J.

Everything up to that point, assuming the facts as they’ve been described, can at least be chalked up to inexperience.  But the consequences of attempting to procure false testimony from a witness will ruin his day.  An e-mail like this will at a minimum result in the matter being referred to the office of professional responsibility, both in D.C. and New Jersey. “Please trick the old lady” is just about the worst sentence an attorney can string together on paper, following closely behind “Please steal from the old lady.”

But the final and most important lesson to be learned from Mr. Rakofsky’s situation is this:  If you do manage to take each of the missteps described above, always, always have a Marisa Tomei-esque fiancee there to save the day.

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