What goes into trial preparation?
We’re currently preparing a half dozen or so trials for the summer, so I thought it would make sense to discuss a little bit of what goes into preparing a case for trial. On television, a lawyer gets the case one week, and next week has the trial. It’s safe to say that doesn’t happen. In reality handling a trial well, especially if the stakes are high, takes months of careful preparation. This is our process.
Getting the case and investigating it
The first step after we’re hired is carefully examining the facts of a case to determine what defenses are most likely to be effective. Depending on the circumstances, there can be many. Consent, self-defense, accident, mistake, privilege, not guilty by reason of mental disease or defect (insanity), lesser culpability, witness coercion, witness fabrication, it didn’t happen, or it did happen and I didn’t do it. These are just some of the potential trial defenses, not the multiple pretrial steps that are taken in cases, like trying to suppress evidence, or dismiss improperly charges counts. You get the drift, there are a lot of factors to consider.
Once a case is charged, it is important to begin investigating it right away. We don’t start right before trial, that’s way too late. Witnesses disappear, memories fade, surveillance video is overwritten, and evidence that should be available is gone forever if you don’t act quickly. For that reason, we always promptly demand discovery from the District Attorney’s Office and try to talk to every witness, victim, or other person named in the police reports. Just as important is talking to the witnesses not named in the police report, those identified by our client or private investigator. It is also important to visit the scenes of an alleged crime to get a sense of what is being alleged, whether the allegation is plausible, and photograph the scene close to the time of the incident.
If a case will need an expert witness, it is also important to identify that person early on and make sure they are working on the case early enough to be effective. This often requires contacting an expert months in advance to ensure that they will be able to review a case, conduct any appropriate testing, author a report, and keep trial dates available to testify. Some common experts include forensic pathologists, psychologists, toxicologists, cell phone and computer forensic engineers, forensic accountants, and accident reconstruction engineers. Unlike on television, qualified experts need months to develop an effective presentation for court.
Motions and subpoenas
Most trial cases require a large amount of pretrial litigation that isn’t directly related to trial preparation. Common motions include asking to admit ‘other acts evidence,’ evidence of self-defense (McMorris evidence/Castle Doctrine evidence), seeking access to confidential medical psychological records (Shiffra/Green motion), double jeopardy motions, motions to dismiss improperly charged counts or cases, motions seeking to throw out unlawfully obtained evidence (suppression motion), seeking to compel discovery or exclude evidence that was not timely disclosed, and motions to control the flow and presentation of evidence at trial (Motions in Limine). Presenting the best case at trial requires careful litigation of the motions leading up to trial.
Also important is locating witnesses and serving them early. Witnesses tend to move, and some do everything they can to duck service of a subpoena. So we get them early. It never fails to amaze me how many attorneys wait until the week before trial, and end up missing some of their most important witnesses because they weren’t able to locate them. Early subpoenas are crucial to effective trial preparation.
This one should be another no-brainer, but it’s another area where I see a huge difference between attorneys who prepare their witnesses and those that don’t. Simply put, a lawyer isn’t doing his or her job unless they’ve spoken with every witness, ensured that they know what will be asked, and prepared them for what they will be asked on cross examination. This is especially true when it comes to a defendant who will testify. On some cases, we will spend dozens, or even hundreds of hours prepping witnesses to testify and prepare for cross examination, because it is that important.
I love using demonstrative evidence: charts, maps, photographs and recordings. Physical evidence tends to speak for itself and effective tell a story at trial. But using physical evidence effectively requires a lawyer to make sure it is produced in time for trial, property disclosed to opposing counsel, and will work at trial. Every lawyer should take evidence requiring a computer to play or display to the courtroom in question and make extra certain that it will work when it counts. This is a task that can’t be handled at the last minute, and is often completed months before trial.
Also crucial is actually mastering the facts of a case and ensuring that you will know the case better than your opponent. This means that a good lawyer will read the materials in a case. Then read them again. And again. And after you know them by heart, you create outlines for every witness you might encounter. And cite facts and reports right in the outlines in case you need to call out a witness on an inconsistency. Outlines are also augmented with citations to the rules of evidence or applicable cases to deal with anticipated objections or concerns from the court. This takes time, and a lot of it. So does drafting opening and closing statements, and preparing topics to ask the potential jurors about during jury selection. The general rule of thumb is that for every hour in trial, a lawyer spends about eight hours outside of court preparing. I’ve found this rule to be generally true, and as such, trial preparation is a time-intensive but necessary process.
Trial binders are also crucial. In every single case, whether it is a simple OWI or a first degree intentional homicide, we prepare trial binders with every single report, every motion, and jury instructions for every count. That way when there is an issue we can quickly flip to the indexed page and produce what is needed. Attorneys who keep paperwork mashed in a file tend to struggle with impeaching hostile witnesses or producing legal authority to a critical judge.
Lawyers get a list from the Clerk of Court on the month of a trial with every potential juror on it. The lists include name, age and occupation, and sometimes the age and occupation of a spouse. That’s it. So, in many cases we’ll spend time finding out what we can about the people who may decide our client’s fate. Social media and google are standard sources of information and it is important to find out what you can about the juror pool in advance. Of course it is absolutely prohibited to contact a proposed juror, and no ethical lawyer would ever do so.
The last minute stuff
You want your lawyer looking like a lawyer, right? That means someone has to remind the attorneys to have their suits dry cleaned and available the week before, get a haircut, update the courthouse parking pass, and make sure a runner is available to get sandwiches at lunch. None of this happens without planning, and it can be the little things that become the difference between guilty and not guilty.