Cyber Lawyer Domingo Rivera Discusses Long Trials

Cyber lawyer Domingo Rivera has tried many cases from beginning to end.  For civil cases, this means from the initial demand letter all the way to the jury’s verdict.  For criminal cases, this means that Domingo Rivera has assisted his clients accused of alleged cyber crimes negotiate with the prosecutors before arrest, sometimes even arranging for surrender in a manner that ensures that the client can get an expedited bail hearing.  Domingo Rivera continues to assist these clients all the way through the arraignment, indictment, and sometimes the bench or jury trial.

We are all humans and no matter how much dedication you have to every client and to every case, sometimes you just get mentally tired.  That happened to me, Domingo Rivera, in one of the most visible cases that I have tried.  Our client was accused of being a leader in the most prolific music piracy group in the world.  Read the press release.

At the time I, Domingo Rivera, was retained for this case, I had been a lawyer for only a short few years.  The DOJ attorneys were incredibly smart, well prepared, and motivated, to put it simply, these guys were fantastic litigators.  While I believe my client’s assertions that he hired me for by technical background, sometimes I wonder if he also did so because I was one of the few attorneys crazy enough to say that trying this case was an option.  I did not push for a plea like the majority of the co-defendants attorneys had.  Maybe it was inexperience or that annoying urge not to back down from a good fight.  I questioned that recommendation several times when I felt that we were taking a beating from the DOJ attorneys, which occurred essentially every time we argued a motion.

We were in the Eastern District of Virginia and lost virtually all of our pretrial motions except for one.  While we attempted to transfer the case to California, where our client lived, the judge transferred the case to the U.S. District Court for the Southern District of Texas, where a co-defendant lived.  That meant traveling for pretrial activities and motions.  It also meant traveling to Texas with enormous amounts of paperwork and evidence for a jury trial that would take a yet to be determined amount of time.  

For some large law firms, this may not be that big of a deal.  They have assistants, travel planners, and many more resources.  For Domingo Rivera, that wasn’t the case.  AVM Cyber Law had a full time attorney, a part-time attorney, and an assistant.  That was it.  The task of sifting through what would have been truckloads of evidence had it not been kept in digital form was daunting, to say the least.

The trial started in Texas and it was as hectic as expected.  Jury selection, void dire, opening statements, it was moving fast.  The prosecution brought a group if very smart, some Ivy League educated uncharged co-conspirators, to testify against my client.  The guys were smart, the prosecutors prepared them very well, the trial involved highly complex and highly technical subjects with several cyber investigators and expert witnesses. 

After a few days of trial, I got this unusual feeling that I had not gotten in any previous trials.  I had represented clients in all day trials involving cyber stalking charges, and other cyber crimes.  After a few days of all day trial far away from home followed by long nights of preparation for the next day, it added up.  It happened after lunch.  I felt that my concentration just wasn’t there.  Technical subjects that I can easily dissect on a normal day seemed foreign.  Domingo Rivera was tired in the courtroom.

To make matters worse, the next task was the cross examination of a government witness.  This particular witness was one of the members of the alleged conspiracy.  He was one of the first ones caught and had been working with the government for some time.  This guy was smart, geeky, personable, and loved to talk and explain things in enormous detail.  On a normal day, cross examination would not have been a big deal.  That day, it was just not happening.

I tried to do the cross examination but things started taking a turn south and I was just a bit too tired to get them back on track.  It was also too early in the afternoon to ask for a break, I was just not going to get it.  So, what did Domingo Rivera do?  I got the talker (the witness) to talk, asked the open-ended questions that you should not normally ask of an adverse witness while making sure that the witness could not add unsolicited statements against my client’s best interests.  

Stephen Witt wrote a book about this trial, “How Music Got Free”.  I wondered how he would present what would turn out to be one of the strangest cross examinations that I have done.  The book says that the witness found some of our defenses to be “preposterous.”  The book goes on to say that Domingo Rivera and the witness “got into a heated geek-off about how IP addresses were assigned.”  That is a mild way to describe the techno babble that everyone in that courtroom had to endure that afternoon.   

U.S. District Court for the Southern District of Texas. This is where it happened.

About 2 hours into this cross examination, Domingo Rivera notified the court that he needed about two additional hours to complete the cross examination and proposed breaking until the next day, a request that the court understandably granted.  Everyone, especially the jury, needed a break from this.  On the way out of the courthouse, the client calmly but obviously frustrated, asked “what were you doing?”  I understood and just explained that I was just too tired and that we would get this guy in the morning.  The next morning was a totally different cross examination and the trial ultimately ended with a good result.