There’s a difference between learning a legal concept like the art of cross-examination and understanding its merits and why it’s used.
That’s what litigator Dan Small realized on his trips to Uzbekistan.
Small traveled to the Central Asian country three times to work with Uzbek attorneys, prosecutors and judges pushing for changes to the justice system.
Working pro bono, the Holland & Knight partner went in 2013, 2017 and again in June for the Slovenia-based Regional Dialogue nongovernment organization, which aims to promote the exchange of ideas and knowledge in Central Asia.
The delegations have been small — first with two judges, the second time with another lawyer and most recently with another lawyer, a judge and a representative of the U.S. Justice and State departments.
Uzbekistan has a Byzantine-era judicial system with less emphasis on adversaries presenting a case. Instead, the judge holds the most authority, receives investigative findings and decides how to proceed, according to Small.
“The inquisitorial system’s view is there’s only one truth and the judge can find it and doesn’t need lawyers getting in the way,” he said.
The effort to overhaul the system has been mainly led by young Uzbek attorneys, Small added.
It has gained momentum in part from the 2016 election of President Shavkat Mirziyoyev, the republic’s second president. Islam Karimov held the office for 25 years after the country emerged from the shadow of the Soviet Union.
“The new president has been open to change in all aspects of their society — in political, economic and social and the judicial system,” said Small, who splits his time with Holland & Knight between Miami and Boston. “It has been a process that started slowly and accelerated. Some would say it still is moving slowly, but I disagree. I think they have made enormous strides. How do you create a whole new system? It’s not easy.”
It’s not just about teaching Uzbek attorneys and judges things like Miranda rights, the right to plead the equivalent of the Fifth Amendment and the nuances of cross-examination. It’s about teaching them why they are done.
“One of the things we found is that we not only have to teach them what cross-examination was, but we very much had to sell the idea of cross-examination,” Small said.
Small described the time his Uzbek students were preparing for a mock trial with judges, prosecutors and attorneys assigned different roles. Before the trial, the team playing the prosecution quit, Small recalled.
“They said to me, ‘We can’t do this. We can’t try this case. We might lose.’ Prosecutors there have no sense of losing a case. Their job is to prepare a file and present it to a judge,” Small said. “If the file isn’t adequate for a conviction, it’s their fault and they could get fired.”
To motivate his students, he launched into his “best Vince Lombardi” inspirational speech, he said, referring to the late National Football League coach.
Then, there was the time one of Small’s students asked him during dinner if they really were going to call government employees as witnesses during a mock trial.
“It takes awhile to get people to figure out how that works and whether and to what extent they want us part of their system,” Small said.
Indeed, Small emphasized his teachings weren’t meant to create an Uzbek legal system that mimics the U.S. system, but to present a menu of what the legal system has to offer so they can select what works for them or perhaps tweak it.
It’s fitting that Small has been imparting his wisdom since he originally wanted to be a teacher.
After graduating from Harvard College, he took graduate courses in education in Colorado, but a teaching job he had counted on back in Massachusetts didn’t pan out, he said.
“I decided maybe law school combined those things I loved and also allows me to teach,” he said.
Small had plenty of experience to draw from when teaching his Uzbek counterparts.
He was defense attorney for two former governors, prosecuted Georgia sheriffs and accused murderers in Texas as a Justice Department attorney, and prosecuted two executives after a deadly grain elevator explosion in Galveston, Texas, in 1977, among other cases.
Small represents the sisters of Linda Carman, who in 2016 set sail with her son Nathan but was never found after the boat sank. Her son was rescued about a week later. Nathan Carman is a person of interest in the death of his grandfather, John Chakalos, who left a $44 million estate. Small is suing on behalf of Carman’s aunts to block him from inheriting the estate.
“It’s very much about justice for the family and not about money,” Small said. The aunts “want justice, they want some resolution, and they don’t want Nathan to profit by his crimes.”
Small was part of the trial team that successfully argued there was no quid pro quo when former Virginia Gov. Bob McDonnell and his wife accepted gifts from a businessman.
“We said, ‘OK, there were a bunch of gifts and maybe the governor made a mistake and shouldn’t have accepted, but that wasn’t illegal,” Small said.
Born: Boston, 1954
Children: Bailey, Schuyler and Gabrielle
Spouse: Alix DeSeife Small
Education: Harvard College, J.D., 1979, B.A., 1975
Experience: Partner, Holland & Knight, 2004-present; Partner, Duane Morris, 2003- 2008; General Counsel, InPhyNet Medical Management, 1993-1995; Assistant U.S. Attorney, U.S. Department of Justice, 1983-1989; Deputy Chief, Public Corruption Unit, U.S. Attorney’s Office, 1983-1988