May 06, 2014

Would Wyatt Earp Have Been Indicted Today?

More than 120 years ago, the coroner’s inquest into “Wild West” lawman Wyatt Earp ended with no criminal charges filed. Earp walked away scot free in the infamous O.K. Corral gunfight that only lasted 30 seconds, but is remembered as the day “when blood flowed like water,” according to the next day’s newspaper. While that gunfight and the incidents leading up to it have fascinated history buffs for more than a century, there was never a criminal or civil trial instituted against Wyatt Earp.

The gunfight and aftermath leading to no prosecution has long intrigued trial lawyers: How did Wyatt Earp walk away without indictment? Did the prosecution really play the cards at their disposal, or was Mr. Earp’s defense that good? What if here had been a civil trial such as a wrongful death case instituted by family members of those mortally wounded, like Tom McLaury?

At the eighth annual Litigation Institute for Trial Training program, or LITT -- also known as a boot camp for young lawyers – we explored the nuances of an imaginary wrongful-death trial. Our special guest was Wyatt Earp himself, or rather, a descendant of the original Wyatt Earp, who was named after his famous ancestor. Our case was based on the testimony presented at the original investigation of the gunfight at the O.K. Corral. The material we used was created by attorney Jeff Willis of Phoenix, who helped assist in getting the original Wyatt Earp’s descendant to portray his namesake on the witness stand.

I created the LITT program eight years ago, in conjunction with the ABA Section of Litigation, to teach the basics of courtroom advocacy to young lawyers, and more importantly, to inspire them to seek further learning and study of trial, as well as arbitration advocacy. Currently, the LITT program is co-chaired by Dallas attorney Michael Lynn and me, and it was Michael who suggested we use the Wyatt Earp trial as our historical case of the day. We had presented a similar program in Dallas the year before and that event had been presented, to wide approval, before a packed house of 500 young lawyers and law students.

At the LITT program in Phoenix last month, Mr. Earp was joined by some of the leading trial lawyers in the country, many of who gave demonstrations of each facet of a trial, from opening statement, to direct and cross examination, to closing argument.

I won’t tell you whether or not the legal proceedings surrounding the original Wyatt Earp would have ended any differently had he appeared before the “jury” of this year’s LITT program rather than the justice of the peace who presided over the coroner’s inquest, but I can tell you the original Wyatt Earp would have been proud of his descendant’s convincing performance.