"Trial Pros: Miller & Chevalier's Barry Pollack"Law360
Barry Pollack was featured as an elite trial lawyer in Law360. In a question-and-answer article, Pollack discusses several of his career highlights. "I think every trial is interesting, but the trial of executives of Enron stands out," Pollack said when describing one of his most interesting trials. "Trials are unscripted. There is a reason people are drawn to reality TV. When something is done live and unscripted, it is compelling. The reason is largely because the unexpected can happen. In nearly every trial I have done, there has been such a moment."
If Pollack could give one piece of advice to a lawyer on the eve of their first trial, he would tell them to, "Prepare thoroughly, but remain flexible. Do not try to be someone you are not. The jury will sense that a mile away. Everyone has his or her own style."
Full text of the article below.
Trial Pros: Miller & Chevalier's Barry Pollack
Law360, New York (March 10, 2016, 10:11 AM ET) --
Barry J. Pollack is the chairman of the white collar and internal investigations practice of Washington, D.C., law firm Miller & Chevalier. He represents individuals and corporations in criminal investigations and trials and in other government enforcement matters, such as U.S. Securities and Exchange Commission proceedings. Pollack also conducts corporate investigations. As a former certified public accountant, a substantial focus of his practice is the litigation of complex financial matters. Pollack has extensive jury trial experience. He obtained the acquittal of an executive of Enron Corp. following a month-long federal criminal jury trial. He also obtained reversals of wrongful convictions in two different homicide cases. In one case, his client served 17 years in prison and in the other, 18 years.
In 2008, Pollack was inducted as a Fellow in the American College of Trial Lawyers and in 2013 as a Fellow in the American Board of Criminal Lawyers. He is recognized by Chambers USA, Legal 500 and The Best Lawyers in America and has received the Mid-Atlantic Innocence Project's Defender of Innocence Award and the New York State Association of Criminal Defense Lawyers' Gideon Champion of Justice Award. He is currently the President-Elect of the National Association of Criminal Defense Lawyers, a member of the board of directors and the immediate past president of the Mid-Atlantic Innocence Project, and a member of the board of directors of Law Students in Court. Pollack is an adjunct faculty member at the Georgetown University Law Center.
Q: What's the most interesting trial you've worked on and why?
A: I think every trial is interesting, but the trial of executives of Enron stands out. At the time, the collapse of Enron was front page news nationwide. The intensity of the feelings about the case in Houston was radioactive. My client was someone who I grew to respect a tremendous amount. Thankfully, he was acquitted. The case was full of interesting and challenging legal issues. At the time, I thought the prosecutions brought by the Enron Task Force would make a fascinating law school case study. I now teach a course in federal criminal trial strategy at Georgetown Law School that is based on the Enron prosecutions. In fact, I teach the class with one of the Enron prosecutors.
Q: What's the most unexpected or amusing thing you've experienced while working on a trial?
A: Trials are unscripted. There is a reason people are drawn to reality TV. When something is done live and unscripted, it is compelling. The reason is largely because the unexpected can happen. In nearly every trial I have done, there has been such a moment. When I was a public defender, I had a witness who I believed would be strong for the defense. He came into court so high on drugs that he literally was unable to find the witness stand. He ended up sitting in the courtroom deputy's chair. In another case, the government put on an eyewitness to identify my client. He described an African American male with a goatee. My client was a Latina woman. In yet another case, I had a jury come back with a note that it was hopelessly deadlocked on all 14 counts after it had been out for a week and a half. As the judge was telling the lawyers he would have to declare a mistrial, there came a knock on the jury door with a new note saying they wanted to continue to deliberate. An hour later, the jury returned a unanimous verdict on all counts -- seven guilty, seven not guilty. The unexpected happens in every case.
Q: What does your trial prep routine consist of?
A: Because the unexpected happens, a trial lawyer needs to be as prepared as possible to react to every contingency. This means knowing the evidence cold. I try to start my preparation as early as possible, reading and rereading everything I can find. I don't start preparing cross-examinations, however, until a few days before the witness is going to testify. Even then, I do not try to script a cross. Rather, I identify subject matters I want to cover, and supporting evidence that I will want to use to confront the witness, in each of those areas. I never finalize a cross until the night before. That way, I can incorporate into the cross all of the unexpected moments that have led up to it. And, lastly, I listen to the government's direct examination as if I am hearing what the witness has to say for the first time. Otherwise, I may miss some unexpected answer or nuance that I can then exploit in cross.
Q: If you could give just one piece of advice to a lawyer on the eve of their first trial, what would it be?
A: Prepare thoroughly, but remain flexible. Do not try to be someone you are not. The jury will sense that a mile away. Everyone has his or her own style. Figure out how to let the jury see who you are and that you believe in your case. Make your client someone for whom the jury will have empathy. Make the jury identify with your client so they can understand that it could be anyone of them who ended up in this situation. Do not shy away from confronting the government's best evidence head on. Just because you ignore it, does not mean the jury will.
Q: Name a trial attorney, outside your own firm, who has impressed you and tell us why.
A: Fewer criminal cases are being tried than ever before. As a result, being a criminal defense trial lawyer is becoming somewhat of a lost art. I am fortunate to have worked with some of the best. My very first criminal trial was with Stan Mortenson, who is now at Baker Botts LLP. It was a six-week trial. I learned more in those six weeks than I did in three years of law school. I have not seen anyone better at cross-examination since. In the Enron trials, I was extremely impressed with Dan Cogdell, a lawyer in Houston. Other than my client, Dan's client was the only Enron executive acquitted on all counts. Dan was great at developing a theme and hammering it home throughout the trial, from his opening, through cross and in his closing argument. Michael Barta at Dechert is a tremendously talented trial lawyer. He is able to take the most complex subject matter and simplify it so that any jury can understand it from his client's perspective. I have a four defendant bribery trial coming up. All of the attorneys involved are excellent. I am really looking forward to being able to stand up in court with them.
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