शनिवार, 1 जून 2013
वकालत के पेशे में पहले से ऐसा रहा है कि आम तौर पर जूनियर सीनियर के कंजूसी की निंदा करते हैं और सीनियर जूनियर को कामचोर कहते हैं। जिस चैंबर में जैसा अध्ययन सम्बन्धी और व्यावहारिक वातावरण रहता है उसी के अनुरूप आपसी गिले शिकवे भी होते हैं। यह बात उन इक्के दुक्के चैम्बरों के बारे में कह रहा हूँ जिनमें जूनियर को सीनियर से कुछ पारिश्रमिक भी मिल जाता है।
मैंने बार काउन्सिल में registration कराने के बाद वाराणसी के एक जाने माने और दबंग फौजदारी के अधिवक्ता के साथ वकालत सीखना शुरू किया और केवल दो तीन महीने उनके साथ रहा। मैं अंतर्मुखी और अध्ययनशील प्रवृत्ति का था, मुजरिमों, पुलिस अधिकारियों तथा न्यायलय के कर्मचारियों से बातचीत करने के व्यावहारिक गुण मेरे अन्दर नहीं थे। उनके कार्यालय में दस बजे रात तक पुस्तकीय अध्ययन करता था। निस्संदेह, मैं सबसे नालायक जूनियर था। फाइलें वही जूनियर छू सकता था जिसे वह कोई फाईल तैयार करने के लिए देते। उनके चैंबर की व्यवस्था थी कि प्रतिदिन आमदनी का आधा चाय नाश्ते में और लायक जूनियरों, मुंशियों को देने में खर्च करते थे और आधा अपने पास रखते थे। इस दृष्टि से मैं जिला स्तर की वकालत के लिए उनके चैंबर की व्यवस्था को आदर्श मानता हूँ।
बाद में मैं हाईकोर्ट में एक सिविल साईड के कायस्थ अधिवक्ता के चैंबर में आ गया। वे खानदानी वकील हैं। उनके चैंबर में जूनियर को पारिश्रमिक देने की व्यवस्था नहीं थी। केवल एक पुराने जूनियर को एक विशेष प्रकार के मुक़दमे की बहस कर लेने के बाद नाममात्र का पारितोषिक देते थे। मुंशियों को यथायोग्य पारिश्रमिक देते थे। उनकी अनुपस्थिति में उनकी कंजूसी ही जूनियरों और मुंशियों के बीच चर्चा का मुख्य विषय हुआ करती थी। लंच में सबको चाय पिलाते थे, साथ में एक दो पकौड़ी भी। हम लोग हंसी करते थे कि " पकौड़ी एक ही प्लेट (दो रुपये की) आएगी, खाने वाले चाहे जितने बढ़ जांयें"। किन्तु उनका चैंबर अध्ययनशील था। मैं उनके चैंबर में दस बजे रात तक बैठता था। मुंशीजी मेरे सिर के बराबर ऊँचाई की फाइलें मेज पर रख देते, बिना किसी निर्देश के कि किस फाईल में कल क्या कार्यवाही होनी है। उनके चैंबर में फाइलें पढ़ने और बहस करने की पूरी छूट थी। अर्थात क़ानून सीखने-समझने का भरपूर अवसर था, किन्तु आर्थिक सहायता बिलकुल नहीं थी।
घरेलू एवं अध्ययन संबंधी कारणों से १९८६ से १९९६ तक इलाहबाद और बनारस के बीच मेरी बहुत बार उठा पटक हुयी। अंतिम रूप से इलाहाबाद आने पर मैंने पुन: एक जाने माने संवैधानिक अधिवक्ता का साथ पकड़ा। उनके चैंबर में जूनियर को अगले दिन की फाइलें आबंटित कर दी जाती थी। पढने लिखने का पूरा अवसर था और पेट्रोल खर्च के मद में मासिक आधार पर कुछ आर्थिक सहायता भी मिल जाती थी। इस दृष्टि से हाईकोर्ट की वकालत के लिए उनके चैंबर को मैं आदर्श मानता हूँ। अन्यथा, हाईकोर्ट में भी साधारण अधिवक्ताओं में अधिकाँश ऐसे हैं जो जूनियर को पढ़ने के लिए फ़ाइल नहीं देते और कोई आर्थिक सहायता भी नहीं देते, जूनियर के मध्यम से वे केवल तारीख लेने का काम करते हैं।
जूनियर भी पढ़ने में रूचि नहीं लेते , वे चाहते हैं कि सीनियर उन्हें सारी सुविधाएं दे और सिर्फ हाजिरी लगाने के लिए पैसे भी दे और अपना मुवक्किल भी दे दे । उनकी निगाह मुक़दमे के गुण दोष पर नहीं बल्कि मुवक्किल पर रहती है।
शुरू में तो बड़ा वकील बनना और इमानदारी से खूब पैसा कमाना मेरा लक्ष्य था। प्रोफेसरों की मुफ्तखोरी देखकर वकालत को मैं अध्यापन से श्रेष्ठ मानता था। किन्तु ईश्वरविधान ऐसा नहीं था। एक नहीं, अनेक बार पूरी तरह से मटियामेट कर देने तक नियति ने मेरे साथ खिलवाड़ किया और वकालत कराते हुए भी इसके प्रति मुझे निरपेक्ष कर दिया। इसलिए मेरे चैंबर में दिखावटी साज सज्जा और बैठकबाजी बिलकुल नहीं है। पुस्तकें उतनी ही खरीदता हूँ जिन्हें वास्तव में पढ़ सकूँ। फिर भी इतनी हो गयी हैं कि इनके रख रखाव में काफी कठिनाई होती है और एक लाईब्रेरियन या पुस्ताकालय सहायक की आवश्यकता महसूस होती है। जूनियर मित्र अव्वल तो पुस्तकें खोलने से परहेज करते हैं और कभी भूल से उठाकर देखते भी हैं तो उसे दुबारा यथास्थान नहीं रखते।
मरे पास स्टीरियो टाइप या रटे-रटाये शब्दों के आधार पर बहस करने वाले मुक़दमे नहीं आते। मेरे पास आने वाले मुक़दमे अधिकाँशत: नए ढंग के और जटिल होते हैं। कहने के लिए बहुत से जूनियर हैं लेकिन सभी हाईकोर्ट में ही निरर्थक बकवास तक सीमित हैं। मेरे पुस्तकालय/कार्यालय में आकर कोई अध्ययन नहीं करना चाहता। जो आना भी चाहता है उसे किसी दिन पुस्तक थमाकर कोई प्रावधान खोजनेको कह देता हूँ या फाईल पढ़वाने के लिए कुछ देर रोक लेता हूँ तो अगले दिन से वह आना बंद कर देता है। कोई फ़ाइल पढ़ने के लिए देता हूँ तो लगता है उन्हें सजा मिल रही है। केवल इतना चाहते हैं कि यदि कल किसी मुक़दमे को टलवाना हो तो बता दूँ। यदि नया मुकदमा तैयार हो रहा है तो जूनियर महोदय का भी उत्साह अधिक रहता है लेकिन तब तक दूर दूर रहते हैं जब तक फाईल पूरी तरह से तैयार न हो जाय। उसके बाद आशा करेंगे कि वकालतनामे पर उनका भी हस्ताक्षर हो जाय और फ़ीस में हिस्सा मिल जाय; हो सके तो मुवक्किल से मैं कह दूँ कि जूनियर महोदय मुझसे अधिक योग्य हैं अब आगेसे आप इन्हीको मुकदमा दीजियेगा।
एक जूनियर, जिन्हें मैंने विश्वविद्यालय में पढ़ाया भी है और उनकी परिस्थितियों को देखते हुए मैं हर तरह से सहायता भी करना चाहता हूँ, सेल्स एजेंट की तरह से आर्डर लेने आते हैं। मेरे संपर्क में यदा-कदा रहते हुए फौजदारी के तीन सीनियर्स के यहाँ काम कर चुके हैं जिनके पास बड़ी संख्या में स्टीरियो टाइप मुक़दमे रहते है। आने के दस मिनट के अन्दर उन्हें जाने की जल्दी होने लगती है। तीन दिन पहले मैंने उन्हें कुछ देर रोक लिया और बोलकर उनसे एक चिट्ठी लिखवाया। संबोधन में उन्होंने "प्रिय" एक लाईन में लिखा और "महोदय" दूसरी में। इसी प्रकार पत्र के अंत में नीचे काफी जगह रहने के बावजूद मेरा आधा नाम एक लाईन में लिखा आधा दूसरी में। चिट्ठी दुबारा लिखवानी पड़ी। अगले दिन से वे नहीं आये। आज किसी जिले में चले गए- मुवक्किल खोजने। शायद उनके समझसे उन्हें चिट्ठी लिखना आ गया है।
मैं तो चिट्ठी के शब्दों के माध्यम से उन्हें व्यावसायिक नैतिकता और कानून की तकनीकियाँ सिखाना चाहता था। लेकिन उन्हें कौन समझाए? चिट्ठी लिखना आसान नहीं है। अधिकांश मुकदमों में क़ानून की पेंचीदगी चिट्ठियों में ही निहित होती है।
शनिवार, 25 अगस्त 2012
Many students remain under impression that .50 or above marks are rounded off as 1. Many institutions also extend benefit of the rounding off. Legally it is incorrect. Rule of rounding off can not be applied unless the relevant statute/rules/ordinances provide for this. This position has been reiterated by the apex courtin many cases. Recent one is THE REGISTRAR, RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES, BANGALORE VS. G. HEMLATHA AND OTHERS decided a day before yesterday i.e. on 23/08/2012 .
In this case a nurse of primary Health Center after working for more than 8 years got permission from superior authorities to pursue M.Sc. (Nursing) course. She had obtained 54.71 marks in B.Sc. (Nursing) . Eligibility marks for admission was 55%. She approached the Secretary, Indian
Nursing Council, requesting that a certificate of eligibility be issued to her who in turn communicated to her
that 0.50% would normally be rounded-off to next digit. She was asked to approach the concerned authority of the institute in that regard. Accordingly, she approached the University and the University gave eligibility certificate. She, then, approached the Principal, Navodaya College of Nursing, Raichur, Karnataka, the second respondent herein. With the said certificate she obtained admission in the management quota.
When she was preparing to take the annual examination, she was informed by the second respondent that she was not eligible to take examination as she has secured less than 55% in the qualifying examination. She approached the University for reconsideration of her case. She was
informed that on reconsideration it was found that she was not eligible totake examination. She, therefore, preferred writ petition in the High Court challenging the said communication. She obtained an interim order permitting her to take first year examination. She took the examination but, results were withheld. She was also permitted to take the second year examination by an interim order. Thus, she had completed the PG course by taking both the examinations. Single Judge of the High Court, by applying the rule of rounding-off of numbers, held that 54.71% marks obtained by respondent 1 should be rounded-off to 55%. Thus, respondent 1 became eligible by virtue of the High Court’s order. Learned Single Judge
set aside the endorsement issued by the petitioner stating that respondent 1 was not eligible for admission to the PG course in M.Sc. (Nursing). Letters patent appeal against said order was dismissed by the Division Bench.
The Supreme Court held that, when eligibility criteria is prescribed in a qualifying
examination, it must be strictly adhered to. Any dilution or tampering with it will work injustice on other candidates. The Division Bench of the High Court erred in holding that learned Single Judge was right in rounding-off of 54.71% to 55% so as to make respondent 1 eligible for admission to PG course. Such rounding-off is impermissible.
शनिवार, 26 मार्च 2011
( From "My Experiments with Truth")
Gandhi ji's experience at Bar- Dada Abdulla's case:
I. Facts are three fourth of the law
The year's stay in Pretoria was a most valuable experience in my life. Here it was that I had opportunities of learning public work and acquired some measure of my capacity for it. Here it was that the religious spirit within me became a living force, and here too I acquired a true knowledge of legal practice. Here I learnt the things that a junior barrister learns in a senior barrister"s chamber, and here I also gained confidence that I should not after all fail as a lawyer. It was likewise here that I learnt the secret of success as a lawyer.
Dada Abdulla's was no small case. The suit was for £40,000.
Arising out of business transactions, it was full of intricacies of accounts. Part of the claim was based on promissory notes, and part on the specific performance of promise to deliver promissory notes. The defence was that the promissory notes were fraudulently taken and lacked sufficient consideration. There were numerous points of fact and law in this intricate case.
Both parties had engaged the best attorneys and counsel. I thus had a fine opportunity of studying their work. The preparation of the plaintiff"s case for the attorney and the sifting of facts in support of his case had been entrusted to me. It was an education to see how much the attorney accepted, and how much he rejected from my preparation, as also to see have much use the counsel made of the brief prepared by the attorney. I saw that this preparation for the case would give me a fair measure of my powers of comprehension and my capacity for marshaling evidence.
I took the keenest interest in the case. Indeed I threw myself into it. I read all the papers pertaining to the transactions. My client was a man of great ability and reposed absolute confidence in me, and this rendered my work easy. I made a fair study of book-keeping. My capacity for translation was improved by having to translate the correspondence, which was for the most part in Gujarati.
Although, as I have said before, I took a keen interest in religious communion and in public work and always gave some of my time to them, they were not then my primary interest. The preparation of the case was my primary interest. Reading of law and looking up law cases, when necessary, had always a prior claim on my time. As a result, I acquired such a grasp of the facts of the case as perhaps was not possessed even by the parties themselves, inasmuch as I had with me the papers of both the parties.
I recalled the late Mr. Pincott"s advice-facts are three-fourths of the law. At a later date it was amply borne out by that famous barrister of South Africa, the late Mr. Leonard. In a certain case in my charge I saw that, though justice was on the side of my client, the law seemed to be against him. In despair I approached Mr. Leonard for help. He also felt that the facts of the case were very strong. He exclaimed, "Gandhi, I have learnt one thing, and it is this, that if we take care of the facts of a case, the law will take care of itself. Let us dive deeper into the facts of this case." With these words he asked me to study the case further and then see him again. On a re-examination of the facts I saw them in an entirely new light, and I also hit upon an old South African case bearing on the point. I was delighted and went to Mr. Leonard and told him everything. "Right," he said, "we shall win the case. Only we must bear in mind which of the judges takes it." When I was making preparation for Dada Abdulla"s case, I had not fully realized this paramount importance of facts. Facts mean truth, and once we adhere to truth, the law comes to our aid naturally.
II But mediation is the best advocacy - Gandhi ji narrates his next step as under:
"I saw that the facts of Dada Abdulla"s case made it very strong indeed, and that the law was bound to be on his side. But I also saw that the litigation, if it were parsisted in, would ruin the plaintiff and the defendant, who were relatives and both belonged to the same city. No one knew how long the case might go on. Should it be allowed to continue to be fought out in court, it might go on indefinitely and to no advantage of either party. Both, therefore, desired an immediate termination of the case, if possible.
I approached Tyeb Sheth and requested and advised him to go to arbitration. I recommended him to see his counsel. I suggested to him that if an arbitrator commanding the confidence of both par-ties could be appointed, the case would be quickly finished. The lawyers' fees were so rapidly mounting up that they were enough to doveur all the resources of the clients, big merchants as they were. The case occupied so much of their attention that they had no time left for any other work. In the mean-time mutual ill-will was steadily increasing. I became disgusted with the profession. As lawyers the counsel on both sides were bound to rake up points of law in support of their own clients. I also saw for the first time that the winning party never recovers all the costs incurred. Under the Court Fees Regulation there was a fixed scale of costs to be allowed as between party and party, the actual costs as between attorney and client being very much higher.
This was more than I could bear. I felt that my duty was to befriend both parties and bring them together. I strained every nerve to bring about a compromise. At last Tyeb Sheth agreed. An arbitrator was appointed, the case was argued before him, and Dada Abdulla won.
But that did not satisfy me. If my client were to seek immediate execution of the award, it would be impossible for Tyeb Sheth to meet the whole of the awarded amount, and there was an unwritten law among the Porbandar Memans living in South Africa that death should be preferred to bankruptcy. It was impossible for Tyeb Sheth to pay down the whole sum of about £ 37,000 and costs. He meant to pay not a pie less than the amount, and he did not want to be declared bankrupt. There was only one way, Dada Abdulla should allow him to pay in moderate installments. He was equal to the occasion, and granted Tyeb Sheth instalments spread over a very long period. It was more difficult for me to secure this concession of payment by installments than to get the parties to agree to arbitration. But both were happy over the result, and both rose in the public estimation. My joy was boundless. I had learnt the true practice of law. I had learnt to find out the better side of human nature and to enter men"s hearts. I realized that the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby-not even money, certainly not my soul."
Quoting II part of above statement of Mahatma Gandhi, the Supreme Court of India in SLP (Civil) No. 2896 of 2010 B.S. Krishnamurthi v. B.S. Nagraj decided on 14/1/2011 by Hon. M. Katzu and Hon. Gyansudha Mishra,JJ, referred a case , which is between two brothers, to Bangalore Mediation Center.
बृहस्पतिवार, 4 मार्च 2010
401510 order under Sections 110/111 Cr.P.C. for quashing of notice
401511 order under Sections 107/116 Cr.P.C.
401512 order under Section 125 Cr.P.C. for maintenance
401513 order under Section 126 Cr.P.C.
401514 order under Section 127 Cr.P.C. for alteration of maintenance
401515 order under Section 128 Cr.P.C. for enforcement of order of maintenance
401516 order under Section 133 Cr.P.C. for removal of nuisance
401517 order under Section 145 Cr.P.C. before filing revision
401518 order under Section 145 Cr.P.C. after filing revision
401519 order under Section 145(8) Cr.P.C. for custody or sale of crops
401520 order under Section 146 Cr.P.C. before filing revision
401521 order under Section 146 Cr.P.C. after filing revision
401522 order under Section 156(3) Cr.P.C., to quash the order for investigation
401523 order summoning accused in a complaint case without filing revision
401524 order summoning accused in a complaint case after filing revision
401525 order summoning accused after rejecting final report without filing revision
401526 order summoning accused after rejecting final report after filing revision
401527 for quashing of charge sheet
401528 for quashing of investigation
401529 for quashing of F.I.R.
401530 against summoning order u/s 319, Cr.P.C.
401531 to dispense with the presence of accused
401532 to set aside order of commitment
401533 for stay of arrest
401534 for expeditious disposal of Bail
401535 for disposal of bail on same day
401536 for quashing of criminal Proceedings in State case
401537 order under Section 203,Cr.P.C. dismissing complaint
शनिवार, 13 फरवरी 2010
One of the illustrative cases is - Deep Kamal Savita v. State of UP decided on 28 August 2009 by Hon'ble Ranvijay singh, J. of Allahabad High Court.
बृहस्पतिवार, 5 नवम्बर 2009
To be successful in meeting the challenges of the courtroom, the would be criminal trial advocate must spend time in pretrial planning and preparation. Success as a criminal law practitioner requires an enormous commitment of time and effort. It's nice to be blessed with cleverness, but it's better to be prepared than clever. In the courtroom, information is so integral to effectiveness that without it a clever lawyer can't get started. With abundant relevant information and advanced planning, a less clever lawyer can make more headway.
When a criminal charge is filed by complaint, information, or indictment, only three things can happen: (1) the charge will be dismissed; (2) the case will be tried to a verdict; or (3) the defense will waive the right to trial and the accused will plead guilty or nolo contendere (no contest) either with or without a plea bargain involving sentencing concessions. You'll also need to brainstorm the case and engage in critical thinking about how to ethically steer it through the criminal justice system. Plain fact: you will spend most of your life as a lawyer dealing with pretrial matters than trying cases in the courtroom.
The material in this brief discussion about management of a solo criminal law practice will focus on the complexities of pretrial planning, investigation, discovery, analysis of the police offense report, and development and implementation of case theories, themes, stories, and strategies. At trial, you are the ringmaster. Yet, mastery of your case begins long before trial. It begins at what we call this interval known as the pretrial stage of the criminal justice process. When you truly utilize the pretrial stage to prepare, at the end of all your investigation, planning, and preparing, you arrive back where you started but, for the first time, with full appreciation of the case.
The more experienced advocate obviously has a leg up over the nascent, wet-behind-the-ears rookie in the pretrial process. But competent pretrial practice is not so much about how much you know going in as it is how much you know when the pretrial process is completed. A big part of pretrial practice is: (1) determining what you need to know, (2) figuring out what you already know and what you don't know, (3) conducting investigation, discovery, and legal research to obtain the necessary information that you didn't know, and (4) preparing to present the useful information at trial in a manner that will provide the meat for convincing arguments in favor of your position. You don't have to know much at the start of the pretrial process, but you do have to learn how to gather, obtain, and learn things so you will know a lot by the end.
What factors influence the outcome of a trial? You can look at it from a lot of perspectives. Perhaps the two biggest questions you should ask yourself are: What conclusion do I want the court to draw from the evidence? and What evidence do they need to do it? Here's an expanded list of some issues that you'll need to answer as you begin to prepare your case:
· What happened?
· How did it happen?
· When did it happen? (The Perpetual Calendar will help with the day of the week.)
· Why did it happen, i.e., now that I know what happened, what happened before this to make this happen?
· Where did it happen?
· What else would necessarily or probably happen after this happened?
· Who did what? To whom or what was it done?
· What do I need to prove?
· How do I use the evidence to prove what I need to prove?
· How do I get the evidence I want in front of the court?
· How do I persuade the court that the evidence proves what I want it to prove?
· What evidence will my opponent present to the court?
· What will my opponent argue based on the evidence?
· How do I counter my opponent's arguments?
· How do I convince the court to rule in my favor?
Many professional would say, "A good plan today is better than a perfect plan tomorrow." But, given the constraints of time, you must aim for the best plan possible. And for that, you must ferret out answers to all the above questions. Your mindset should be - I will work on preparing my case to the very last opportunity, as if there were a subsantial chance to lose it if I don't keep preparing.
Organizing the Case File
The goal is to have a file that contains what you need but that is not cluttered with useless information. The devil is in the details - the overall project of getting ready for trial depends on the success of the tiniest components, but the details must be relevant details.
Gathering Information About the Case
It is a capital mistake to theorize before one has data. -
Sir Arthur Conan Doyle
You can't make whipped cream from skim milk. It's impossible to make an effective case or mount an effective defense from poor facts.
*Gathering Information as an Integral Part of Pretrial Preparation: Remember the old proverb that admonishes us not to cross our bridges before we come to them. In criminal cases, this is a disastrous philosophy. Trial lawyers spend considerable pretrial effort identifying the bridges they will need to cross in the courtroom and planning exactly how to cross them. That is what this page is about.
*Learning how to plan and conduct a factual investigation to uncover and discover potential evidence: Recent graduates from law school find it a bit difficult to investigate their client's case. This is understandable because most law schools don't teach this skill. Also, in law school you're typically provided with a given fact situation in an appellate case and asked to apply your analytical skills in predicting and arguing a legal result. In the real world of the courtroom, you learn that there is no a priori given set of facts. You have choices as to what information will be presented to the jury. That choice is informed by the information you gather during the investigation phase of your case. It is also influenced by your choices in selecting, discarding, and ordering information for presentation in court. In order to plan, direct, and, where applicable, participate in factual investigation of your case, every criminal defense lawyer needs to be familiar with the following processes, skills, and concepts:
· Determining the need for factual investigation.
· Planning and prioritizing the factual investigation.
· Implementing the investigative strategy into gathering of factual information..
· Memorializing, sorting, and organizing factual information in accessible form.
· Deciding whether to continue or conclude the information gathering process.
· Reviewing and evaluating the information that has been gathered.
· Reconstructing relevant events.
· Litigating the case at the trial court level.
What Will Be Investigated? First, there must be a person, place, or event that needs investigation. In other words, we must know what it is that we need information about. In criminal cases, we typically need information about people, places, and events that are reflective either of commission of crime or existence of defense to crime. To prepare for trial, you must be able to visualize the way the case will unfold at trial, i.e., what you and the opposing lawyer will do. Before the process of visualization of the trial can take place, information must be gathered.
What Information Will Be Gathered? There is a mountain of information surrounding every event. Theoretically, with enough time, you could gather all conceivable information surrounding an event and sift through it for data that might be legally relevant as potential evidence. In practice, the investigation of people, places, and events is guided by: (1) your understanding of what needs to be investigated, (2) available resources, (3) laws and procedural rules, e.g., the substantive law of crimes, criminal procedure, and the rules of evidence, that define crimes and defenses and limit what information can be introduced in court, and (4) a good measure of common sense.
What Is Your "Theory of the Case"?
The information that is gathered about the people, places, and events will yield a tentative theory of the case (Scientist call it a "working hypothesis."). In the early phases of pretrial investigation, your theory of the case is tentative. You never develop your theory of the case in a vacuum. You never try to shoehorn an impossible factual story into your theory of the case. Sherlock Holmes taught us that "it is a capital mistake to theorize before one has data; insensibly, one begins to twist facts to suit theories, instead of theories to suit facts." If credible new information surfaces that is inconsistent with your theory of the case and it cannot be satisfactorily explained away, you must be willing to regroup, rethink, and form a new theory. In other words, if your theory of the case doesn't hold water in light of the potential evidence, form a new theory, and test it. As your tentative theory is weighed against the developing facts and passes, it ceases to be tentative and becomes the operative theory. The operative theory of the case leads logically and emotionally to a conclusion of why the accused is either guilty or not guilty. It is this operative theory of the case that constitutes the taproot of your pretrial investigation, planning, and preparation. At trial, your operative theory of the case is the one paragraph explanation of why you should win.
What Story Adds Flesh and Bones to Your "Theory of the Case"? People, places, and events tell a story. But trials are not always about the same story. Some events tell one story. Other events tell another story. For example, the prosecution's story may focus on D intentionally or knowingly engaging in certain prohibited conduct, e.g., taking money from a bank teller at gunpoint, or causing a particular proscribed result, e.g., shooting a person to death. The defense's story may focus on events antecedent to or during the alleged crime that may excuse or justify D's otherwise criminal behavior, e.g., an accused bank robber might show that he was forced to commit the robbery or have his wife and children killed by the real robber who was holding a gun to their heads or an accused murderer might show that based upon previous threats by the deceased coupled with an apparent deadly attack, he responded reasonably by using deadly force for self-protection. It's your analysis of provable events and how you will reconstruct them in court that provides your story of the case and your theory of prosecution or defense. To come up with a viable theory of the case, you must know the law and the facts.
Information You Need & Why
Types of Information: What types of credible information may be relevant to your case? Possibilities include: (1) information surrounding the event(s) in issue; (2) information that explains why the event(s) occurred, e.g., evidence of motive, prior relationship between the parties, etc.; (3) information relevant to previous events that may form the basis of a defense, e.g., prior threats of the complainant in a self-defense case, prior law enforcement inducement in an entrapment defense case;etc., (4) evidence that impeaches or bolsters the credibility of the witnesses, the victim, and/or the accused. You also want information about your adversary. Who is your opponent? Remember the wartime advice: To fight an enemy, it's important to know his numbers, but it is more important to know his philosophy.
Why You Need Credible Information: You need believable information for purposes of offense and defense. On offense, information is the meat of your story of the case. On defense, forewarned is forearmed. That is, if you know what information is coming from the other side at trial, you will be better prepared to employ your lawyerly skills to confront and neutralize it than the advocate who does not know what is coming around the corner.
Two Ways to Obtain Information - Discovery and Investigation
Methods of Gathering Information Useful to Your Defense: As the old saying goes, "Forewarned is forearmed." If you know what is coming from the other side, you will be better prepared to deal with it. Defenders and prosecutors must be familiar with the basic methods of gathering and developing useful information and the cost/benefits of each method. The two methods are discovery and investigation.
Discovering Information Gathered or Generated by the Other Side: The prosecution gathers information by dispatching paid government agents who are trained to investigate possible crimes, gather potential evidence, and be prepared to testify to their efforts at trial. The government also builds laboratory facilities and employs forensic analysts to examine and test tangible material that has been gathered and testify as expert witnesses at trial. We can generally be sure that if the government charges a defendant with a crime, the government will have information that it has gathered in support of the allegation. So, one way the defense can gather information to prepare for trial is by obtaining formal (by the book) and/or informal (discretionary) discovery of the information upon which the prosecution bases the accusation.
Informal Defense Discovery: Informal defense discovery requires cooperative communication with the opposition. Sometimes, sleeping with the enemy is the best way of picking its mind. Prosecutors may be loathe to reveal anything more about their case than is required by law. Yet, to take a hardball, do-it-by-the-book attitude in every case would be to discourage guilty pleas, something that the prosecution cannot afford. As a matter of practicality, many prosecutors will informally provide defenders with information about the prosecution's case with an eye to encouraging a guilty plea. Prosecutors also like to avoid the extra work involved with responding to formal discovery requests. It's generally proper practice to resolve a case by good faith mutual agreement of the parties. So, don't turn up your nose to the prosecution's "open file" policy that shows you all of it's cards. Make a good faith effort to resolve your discovery demands by agreement before presenting them to the court. On the other hand, if a prosecutor knows that a case is going to trial, the game may be hardball from the outset. In such event, your remedy is formal discovery.
Formal Defense Discovery: Formal defense discovery in a criminal case occurs when the defense seeks and obtains a formal court order instructing the prosecution to reveal investigative information to the defense. Informal discovery occurs when the prosecution voluntarily reveals investigative information to the defense without formal court order. Every jurisdiction will have its own statutes and rules governing the pretrial and trial discovery process in criminal cases. In some jurisdictions, e.g., federal court, there are rules of counter-discovery that allow prosecutors to have discovery of defense information as a condition to statutory discovery by the defense of information in possession of the prosecution.
Reading Police Reports and Other Documents: Effective discovery requires that the recipient of discovered information be able to understand it. For example, defense lawyers must know how to read a police offense report and recognize and analyze documents, e.g., medical records, that are relevant to the case. What do you look for when reading police reports? Here are a few suggestions: Look for the report of the first officers on the crime scene. What descriptions did the arriving officers give of the conditions of the scene - this includes the position of moveable objects and alleged victims. What did the first officers on the scene do upon their arrival, e.g., where did they go, what did they do to secure the scene? If there was a victim, did the first officers have contact with the victim? Were EMT (emergency medical technician) personnel involved with the scene? If so, who called for the EMT's? How many EMT's arrived? What were the movements of the EMT personnel at the scene? What observations did the EMT's make concerning the victim and the victim's surroundings? What was the condition of the victim? If deceased, who pronounced the victim dead? If alive, what efforts were made to deliver first aid to the victim? Did the EMT personnel move the body? When? Where? Was the victim conscious? Was any effort made to communicate with the victim? Was the victim transported to a hospital (morgue)? Did detectives arrive at the scene? Did they conduct a further investigation? What did they observe? What did they look for? Did the detectives take measurements and or make diagrams of the scene? How many diagrams or sketches? Of what? Did the detectives talk with witnesses? Who? When? Where? Were the witness statements recorded, e.g., written, tape-recorded, paraphrased into the report? What did the witnesses say? Were photographs taken? Who? When? Of what? How many? Did CSI (crime scene investigation) personnel report to the scene? Who? When? Where? What did CSI do? Were samples, e.g., fingerprints, trace evidence, collected? Who collected what and from where? How was the collected evidence transported to the crime lab or other repository? What reports did CSI make? Is there a log reflecting each item collected? Did a criminalist or other expert subsequently examine the items collected at the scene? Were there laboratory reports? What do those reports say? What were the results of tests run by the lab? Does any portion of a sample collected for testing remain for analysis by a defense expert?
Obtaining Medical Records: Is the alleged crime one of violence where medical records exist? If so, obtain them from the opposition or the medical facility that generated them.. What treatment was afforded to the patient? Was the patient transfused? (This can be important in cases involving subsequent DNA analysis.) Speak with the attending physician(s). If this is an alleged criminal homicide, obtain the medical examiner's official report (autopsy protocol). Also, obtain the report of the medical examiner's investigator who attended the crime scene. (Medical examiners typically do not personally visit crime scenes. Instead, they send trained ME investigators to observe the body at the scene and gather scene information.) Also, obtain (subpoena, if necessary) copies of the autopsy surgeon's notes and tape recordings dictated by the surgeon while the autopsy was taking place. Read the medical records, including supplementary reports, e.g., toxicological reports. What was done? Was it done properly? What was not done? What conclusions were made?
Conducting Your Own Investigation: Rather than limiting yourself to trying the case solely on information discovered from the prosecutors file, defenders should conduct their own independent factual investigation of the case. Client Contact: Some of the information about what happened or didn't happen will come from the client. You will need to interview your client on more than one occasion and communicate regularly.
Gathering Information About the Complainant: What can you learn about the complainant / complaining witness / alleged victim? Quite a bit, if you have the time, the need and the financial resources to make the investigative effort. Aside from basic personal facts such as sex, race, age, marital status, personal appearance, education, socioeconomic level, residence, vehicle, prior criminal record, etc, you may be able to develop a reasonably accurate profile of a complainant's childhood history, lifestyle, intelligence, and personality.
Interviewing witnesses as Part of Case Investigation: In trial work, what you don't know can hurt you. Ignorance is not bliss when it comes to information that witnesses may possess. It is folly for a defense lawyer not to identify and locate witnesses and see to it that they are fully interviewed. Witnesses come in three flavors: friendly, neutral, and hostile. (Adverse witnesses, either the opposing party or witnesses identifying themselves with the opposing party, are almost always hostile.) Witnesses come in different brands: a fact witness knows something relevant about what happened or didn't happen, a character witness knows something about a relevant and admissible character trait of the accused, another witness, or the alleged victim, and an expert witness has knowledge about relevant matters that will be helpful to the jury in understanding the evidence. It is usually foolhardy for the defense to dash out to interview witnesses willy-nilly in the absence of some knowledge of the prosecution's theory of the case, i.e.,. what the government claims happened and knowledge of the possible defense available in the jurisdiction. If you are doing your own investigation you will have an investigation plan before you contact witnesses. If you are using a private investigator, you must brief the investigator on the sort of information you need. Otherwise, your investigator won't know what questions to ask and which answers to pursue. You can't depend on lay witnesses (and sometimes even experts) to know what information is relevant. So, prior to interviewing witnesses, you'll have to develop skill in rapidly discovering the basics of the prosecution claims and forming an investigative plan. You want to obtain all the relevant information possible, but you don't want the relevant information to be buried in a mountain of irrelevant detritus.
Locating and Engaging an Expert Witness: In some cases, as part of the pretrial preparation process, you will need to locate and engage an expert. The defense may find it useful to have its expert analyze evidence seized by the prosecution agents. If the defense is successful in gaining access to evidence for testing, the prosecution typically will ask that the defense pay for transport costs incurred in maintaining the chain of custody. In some instances, where the quantity of a sample is limited and may be consumed in prosecution testing, the defense will want to request a court order permitting the defense expert to observe and record the scientific testing conducted by the prosecution's expert. The defense may also want to have its expert present to observe and record when prosecution agents, e.g., criminalists, police, etc., conduct a search of seized or impounded property.
[Tip: If your expert does conduct a scientific examination or analysis of evidence in the prosecution's possession, be aware that the prosecution's chain of custody representative, e.g., the detective with case responsibility for the evidence, will probably try to get your expert to talk. Also, if your expert observes and records examinations or analysis done by a prosecution expert, the opposition's expert will try to get your expert to talk. Whatever your expert says to these folks may come back to haunt you in court. So, be sure to warn your expert not to say anything revealing, e.g., information or opinion that s/he wouldn't want aired in cross at the trial. On the other side of the discovery and impeachment coin, you may want to advise your expert to get the other side's witnesses talking in these encounters.]
Visiting the Relevant Scene(s) and Gathering Useful Information: To comprehend and understand a scene and what may have happened there, you must visit it. When you visit a scene, take a supporting (prover) witness who can gather potential evidence and testify as an authenticating witness, should the need arise. Become personally familiar with the environment of the scene. Walk it. Gather tangible objects that could be potential evidence. Do not contaminate the object. Use gloves, and document the retrieval and storage of the object. Make detailed notes. Make a diagram. Include relevant measurements. Record the scene by photographing and, if useful, videotaping it. To record scenes properly, read tips about taking better photos, how a camera works, photography, how to buy equipment and take photos, and crime scene photography, e.g., angles, panning, lighting, etc., in your spare time before you embark on a crime scene visit. If you use a digital camera, you can afford to take a lot of pictures. Professional photographers get one good shot for every 36 they take. Before investing in a new camera, digital, digital SLR, analog, or other, check out the reviews in PC magazine.
[Tip: If you are a defender, when you visit a crime scene and make photographs of potentially relevant aspects of it, take a supporting (prover) witness. Take three photos of every relevant scene, one with yourself in the scene, one with your supporting witness in the scene, and one of the scene by itself. When you or the supporting witness appear in the scene photograph, do something relevant to the photo such as holding a pointer or a ruler or a tape measure. At trial, you may want to introduce the photo that includes you. The reason would be not only to subtly show that you have personal knowledge about the scene in question but also because the photo is graphic proof that you care enough about your case to do you own investigation. If the authenticity of the photo is questioned or you need the supporting witness to qualify it, you may choose to introduce the photo that includes the supporting witness. If the prosecution successfully objects to a photo that includes you, you will have the plain scene photo as backup evidence. ]
Assembling a Pretrial Investigation Kit: If circumstances dictate that you conduct your own investigation, you will need to assemble some hardware. These material should be gathered together and kept in an accessible place. Your pretrial investigation kit should include the following:
- carrying case
- 50 ' retractable coiled measuring tap
- portable high quality tape recorder, & extra tapes [Consider buying a digital recorder.]
- Polaroid camera and extra Polaroid film
- digital SLR camera (1 - Consumer Reports 2008), (2), (3), (4), (5), (6 - great info re buying and using digital cameras and other electronics, as well as software, components, systems, peripherals, etc.; 6 megapixels resolution should be the absolute minimum for your camera, 10 is great, e.g., the Fuji FinePix Z200fd at $300; buy a digital camera that accepts a secure digital memory card that will store photos; phone cameras currently don't provide sufficient quality.)
- hand-held digital camcorder (records video and takes photos) [Note: If you have the $, consider the NikonD90 combo of single-lens-reflex and video camera; at $1300, it's the best. the Flip Mino is a new low-cost ($180) one-button 3.3-oz. video recorder with 60 min. of VGA quality video.]
- extra batteries for battery operated gear
- disposable rubber gloves to prevent contamination of tangible objects
- expandable pointer
- roll of masking tape
- glue stick
- bottle of glue
- large binder clips
- extra pens, pencils,
- magic markers (black, red, blue, yellow, hot pink, etc.)
- letter and legal sized tablets
- post-it note tablets
- flashlights - big and little
- business cards
- PDA - e.g., Blackberry
* Know the the Judge- his liking ,disliking, practices, habits and his particular rules or system of working , the Courtroom Layout, and the Local Rules.
* Know the opponent's practices and habits.
* Know the opposition's experts. Many crime labs have protocols of standard procedure for testing. Secure and read them.
* Coordinate with Co-Defendant's Counsel in Multi-Defendant Case
* Investigative Resources On the Internet: You'll find numerous investigative resources on the Internet.
* Ceasing Investigation: When do you stop investigating? If inconsistencies or ambiguities in the gathered information develop, further investigation may be warranted. But at some point, active investigation must cease. You will decide, often using a cost benefit calculus, when to stop investigating. When you do stop investigating, you will be proceeding to trial with the information you have collected. The next step will be to organize, interpret, strategize, plan, and prepare, using the information gathered through informal and formal discovery and investigation.
Analyzing and Interpreting Information - Generating a Supportable Story of the Case
Somewhere in the gathered information are the building blocks that will form the story of your case and support your theory of the case.You build that from what information reveals and what it doesn't reveal. A workable story has to have a strong rational foundation. It's got to hold water, i.e., it has to make sense.
How do you analyze and evaluate the information that you have gathered? You will have to identify information that is inconsistent with other information. You will determine the facts that are truly in dispute. You will also have to develop the skill of recognizing factual information that that is beyond dispute and learn to visualizing the differing conclusions that can be drawn from facts that are beyond dispute. One can put different spins on the same facts, depending on the premise. For example, if the facts show that the perpetrator of a robbery threatened the victim with a handgun, the prosecutor's premise may be that the victim's fear heightened her awareness and ,thus, made the subsequent eyewitness identification more reliable. The defense premise from the same facts may be that the victim's fear for her safety blocked or dulled her perception and made the subsequent eyewitness identification less reliable. The point is that we must explore the various logical inferences that can be drawn from facts that are beyond dispute.
Brainstorming and Thinking Outside the Box with a Team Approach
What is brainstorming? Maybe it's best described as free thinking. They say that there's always a better way to do things, if only we can find it. But new ideas are always delicate things. They can die in the draft of a doubtful sigh or an off-hand comment. The theory underpinning brainstorming is that we may find an easier way to solve a seemingly difficult problem if we uncritically open our minds and think about the situation in different and imaginative ways. We brainstorm because we accept the possibility that if we've always done it that way, "that way" may be wrong. To brainstorm effectively one must be willing to raise new possibilities and look at old problems from new and untraditional angles. For example, with opening statement and argument, the brainstormer might ask, "What could I conceivably say?" Concerning substantive proof, one might ask, "What evidence could I conceivably introduce?" In each instance and before making any judgment, the brainstormer would list all the possibilities, good and bad.
Brainstorming is also based on the theory that, when examining a problem. two heads are usually better than one. A team approach to planning, investigating, and preparing a case is usually better than the solo method. If you have to brainstorm by yourself, so be it. But there is synergy in brainstorming your case with colleagues. The old saying "Too many cooks spoil the broth" doesn't apply when you are brainstorming. No single person in your circle of advocate friends is as smart as the group as a whole. The whole point is that you get a superior result with combined input and suggestion. We have only to look at the pretrial process to see this principle in practice. Teamwork is indigenous to the investigative and litigative process. Detectives and crime scene investigators typically work with a partner. Prosecutors and public defenders assigned to a particular court or division, e.g., organized crime, family violence, usually office together. They constantly talk about their cases and engage in "skull sessions" with their office mates, planning and preparing their cases. Prosecutors and P.D.s typically try important cases in teams, with one lawyer sitting "first chair" and the other "riding shotgun." When a trial judge appoints defense lawyers to represent an indigent in a very serious case, two or more lawyers may be appointed.
If you are a private defender working with a partner or associates, you can bounce your case off of them. Solo criminal defense practitioners should try to develop a trusting relationship with a colleague(s) or a mentor who can be used as a sounding board for ideas. If you are a solo practitioner and can find someone, particularly a more experienced defender, with whom to talk about your case, you may be able to avoid some major mistakes. [Never discount experience.You may not be able to teach an old dog new tricks, but an old dog can often teach you some old tricks.]
If you have to brainstorm on your own, one of the best places to do it is while commuting to work. In this day, many city defenders have at least a 30 minute commute. Use the travel time to think about how you are going to try your case. Use voice to text software package to covert a copy of your written investigation into voice form on a CD and listen to it on an MP3 player during the commute. You can do the same with other written material, such as your planned voir dire ,opening statement, cross, argument, etc.
So, what is the procedure for a brainstorming session? First, you gather your brainstorming group. It is best if everyone is familiar with the case. Second, put a time limit on the session. Third, you, as the prompter-facilitator, open the session by asking the group, "What is this case about?" Start a written list of the responses. Put every response on a separate piece of paper, preferably a Post-It note. Keep the notes to the side, and don't try to organize them or make them consistent. The Post-It notes are good because they allow you to organize the responses at the very end of the session. When you have gathered all the answers to your first question, pose other questions seeking reactions, facts, ideas, relevant examples and stories, etc. When the session is complete, take the stack of notes and organize them into broad categories. Then, prune the contents of each category for the thoughts that make sense in terms of consistency, continuity, clarity, and credibility.
Note that CaseSoft has several brief articles on trial preparation, one of which discusses brainstorming your case. See also Creating Minds.
Developing Your Case Theory
The theory (thesis) of your case is the answer you would give to someone in an elevator who asks you, "Do you have a good case?" Your answer should be no more than a short paragraph explaining what your case is about and why you should win it. If your oral elevator speech is less than a minute and has consistency, continuity, clarity, and credibility, you've got your case theory. If you can explain it in 25 words or less it's probably a splendid theory. [Note: Theory of the case differs from theme of the case. See below. (1)]
Sound simple? Your nutshell version of what you claim happened needs to be simple, but distilling the case to this level will cost you some sweat, shoe leather, and skull sessions.
For the defender thinking about a defensive theory the cardinal rule is: Bad excuses are worse than none at all. When you rely on a lame excuse or justification for your client's crime, you make the crime seem even worse in the eyes of jurors. Most of us had a survey criminal law course in our first year of law school where we learned a bit about the various common law defenses to crime. The training is always superficial. Once in practice, we must revisit the law and study our state's crimes and defense with much greater intensity.
Integrating Storytelling Techniques Into the Roadmap of Your Case
In the courtroom, the lawyer who presents the best story usually rules. See Deciders Perceive Whole Stories. A story is a recounting of past events. To be an effective trial lawyer, you must learn to be a storyteller. The oral tradition of American trials where witnesses recreate true life events with testimony keeps the value of old-fashioned storytelling alive. Trials are primarily narrative stories, that are presented by lawyers seeking to evoke in he jurors both a belief and the will to act on that belief. The trial story is the principal vehicle by which the courtroom lawyer seeks to influence the juror's mind. Other things , e.g., the lawyer's appearance, the witness' character, may sway the ultimate decision , but the presentation of case story is the key to success. The degree to which a juror's mind is influenced depends on the scope and content of the trial story and how it is told. A good trial story must be a shared experience between the storyteller and the listening jurors. If the trial story is not about the jurors, if it doesn't involve them and make them part of the moment, they won't listen. They'll tune it out and sit in the jury box making up their own stories, i.e., daydreaming. Gripping trial stories are about facts and inferences, but they are also about matters close to the heart. Lawyers don't win jury trials simply by cold analytical logic. The jurors minds must be won over by your facts but their hearts are captivated by the impact of emotion that flow from the story.
Before you can become an accomplished storyteller, you must become a proficient story organizer? Criminal trials typically involve at least two stories of the case, one consistent with proof of guilt, e.g., "convenience store hijacker binds, gags, and shoots two bound witnesses execution-style," and the other inconsistent with proof of guilt, e.g., "wife shoots drunken, abusive, knife-wielding husband in self-defense." When the defense is unable to find an affirmative story, circumstances may limit the defense to muddling the middle of the prosecution's story in an effort to create reasonable doubt of its verity.
In a single trial, there are often multiple, interlocking mini-stories each focusing on different time, place and space, but comprising the "big picture." The way you organize and tell the story of your case may not always determine the verdict. It will always have an influence on the outcome. Every story has plot, place, and characters. Not only must the story of your case be well told with a plot, setting, background, conflict between a protagonist (hero) and an antagonist (villain), a victim, interesting characters, obstacles, goals, mood, and a proposed final resolution - it must be told in a manner that moves the jurors. If you can learn to tell a good story, you will turn the jurors' ears into eyes.
So, how do you convince the jurors that to accept your story is better than the opposition's. How do you put yourself in the position to remind the jury in final argument: "Here's why our story of the case - our evidence and our witnesses are better than theirs"? Start developing the story of your case by determining the premise upon which it will be based. You'll need to understand the cast of characters. You'll need to identify and develop the drama of your story. The dramatic parts of the story are the parts that aren't dull, the parts that have action and in their way are entertaining. Your trial story also has to be about human relationships. Where is the conflict? How is the conflict resolved? You will need to visualize and construct in storybook form each of the key scenes or mental images that will be presented by evidence. The key scenes are the ones you want the jurors to accept as gospel fact and carry with them into the deliberation room.
There is a methodology to storytelling. Stories need order. If you tell you story in snippets, the snippets must be connected to the whole. Generally you tell your story in a linear manner, from start to finish. Think about a tray-based slide show in which the slides and accompanying narrative are arranged haphazardly. The story doesn't appear. A linear story flows better because its the way things happen in real life. A story may be linear and yet somewhat confusing to the ear when there are digressions and disruptions of the storyline, e.g., where the storyteller editorializes with asides or flashbacks. Non-linear storytelling can be effective on the big screen, but it won't work well in court, even with electronics. Flashbacks are also easier in film because they can combine sound, picture, and written notice, e.g., "Four years earlier." Authors may get away with flashbacks in novels, though some experts, e.g., Stephen King in his On Writing, think they are corny. As a courtroom storyteller, you don't want your jurors to labor to understand what is going on. Why? Because you risk losing their attention during the important parts. The fact that things may finally become clear at the end is no solution if your jurors tuned out in the middle of what appeared to be an incomprehensible story.
The story of the particular case on trial is not the only story that will emerge in the courtroom. Every competent prosecutor and defender will have a bundle of good demonstrative stories. These are oral accounts of a real or fictitious occurrence that help make a point. Often they are told in jury argument. The anecdotal stories are separate and apart from the factual story of the particular case. Anecdotal stories help the advocate substantiate key points and/or endorse certain human values. As your trial lawyering skills grow, you'll learn, for example, how to turn personal experiences into stories that make a point; you'll also learn how to adopt and adapt parables, legends, literature, metaphors, current events, etc., into brief stories that illustrate your point. Start yourself a "story bank" of concise stories, no more than a minute or two in length, that can be used to illustrate and illuminate key points that recur in criminal cases. Chose the words carefully. Practice telling them over and over. Keep the stories that fit comfortably in your repertoire.
A properly prepared and presented trial story will involve characters who are animated by emotion. The story will also seek to generate crucial emotional feelings in the jurors. There are many emotions that can flow from your story and its characters. These include: anger, admiration, annoyance, anxiety, apathy, concern, confusion, contentment, curiosity, desire, despair, excitement, fear, forgiveness, fury, gratitude, grief, guilt, happiness, hate, hope, hostility, jealousy, love, passion, pleasure, thrill, revenge, sadness, shame, surprise, suspicion, sympathy, worry, etc. To plumb and evoke an emotion or feeling, you must develop its specific fact based aspects. Don't just ask the witness if a particular character entertained a particular emotional feeling, e.g., "Did the defendant hate the alleged victim?" Present specific facts showing the jurors that the character entertained the emotion. Some times you may want to use direct and cross to explore the facts that reflect the emotion without asking the witness to label the emotion. Let the jurors rely on the facts to draw the conclusion that a character had a particular emotion. Don't ask the jurors to admire or dislike a character in the story. Give them specific factual reasons for the desired feeling. As you might imagine, prosecution stories are often about the accused's wickedness and the victim's loss. Such stories may engender emotions such as anger, empathy, grief, hate, sorrow, vengeance, etc.
Aside from factual proof, other influences that affect the palatability of your case story emerge during a trial. These influences include the courtroom behavior of all the witnesses, the accused, and the lawyers, and, very importantly, the fundamental attitudinal mindsets of the jurors themselves.
The same story may influence people differently. Why? Because society is a mixed salad. As a result of informal and formal acquisition of knowledge in a multi-cultural world, every adult among us has developed fundamental individual views about how the world works. These personal beliefs are relatively fixed, moreso as we age and to the extent that we feel emotionally attached to them. From time to time, we may revisit our beliefs and readjust them. But the process of changing the way we we think is a slow one, hardly likely to change during a trial. So, for any trial lawyer to believe that s/he can change entrenched beliefs of a heterogeneous group of jurors during a brief three or four day trial is ludicrous.
On the other hand, some stories evoke similar logical and emotional responses in most of us. We may all laugh at the same juncture during a comedy, just as we all may simultaneously fight back tears or dab at our eyes during a "tear jerker." There are some shared values and common motivators that unify and move almost all of us. For example, most of us don't cotton to betrayal, cowardice, dishonesty, treachery, etc. On the other hand, we may value charity, dignity, fairness, faith, friendship, forgiveness, humility, etc. If you want to rely on emotion, you typically find it in the story not in the jurors. Jurors react to the story, the story doesn't react to the jurors. The message for lawyers is this - form, tell, and argue your trial story around one or more values shared by the jurors and that story will influence and persuade them to action.
Always remeber that in every instance where a good story is presented, the Judge in your case, must be able to see the forest despite all the trees, i.e., there is a unifying theory that makes sense of all the constituent elements. Some trial stories are difficult to tell. Some are difficult to hear. Yet, they must be told.
Pretrial Readiness to Be A Trial Advocate
It almost goes without saying that you must have a handle on the substantive law of crimes, criminal procedure, and the rules of evidence when you enter the trial court to litigate a criminal case, whether from the prosecution or defense table. You must be able to perform the tasks of the trial advocate, e.g., engage in motion practice, participate in jury voir dire, open your case, conduct a direct examination of your witnesses, establish necessary foundations (predicates) for introduction of your evidence, make and respond to objections and offers of proof, cross-examine opposition witnesses, deal with expert testimony, and argue your case. In short, your trial advocacy skills must be up to snuff when you enter the courtroom. How do you hone your courtroom skills without being in the courtroom? After all, you learn it by doing it, practicing on your clients, making lots of mistakes in your early days and, hopefully, learning from them, as you go along. Can you get ready to be a trial advocate before the trial begins?
· Develop your skills in the field of trial tactics, court selection (if you can) , opening, direct, cross, expert testimony , objections, courtroom technology, exhibits, identification, motions, and criminal evidence and criminal procedure .
· Your demeanor is vital to courtroom success. What you do and say and how you do it can turn the judges off or on. Try to get it right.
· Plan your mode of dress for each day of trial. Give thought to your wardrobe and its influence on the way the judge will perceive you and your case story.
· Think about how you will present the story in opening and closing, e.g., gestures, nuances, accents. This requires practice as well as planning .
Legal Research - Law on the Internet
To do your job in the courtroom, you must be prepared. To be prepared you must know how to identify relevant legal issues, analyze them, and posit answers to them. Boiled down, you must know how to perform legal research and legal writing .To perform these two skills, you must have access to legal materials. The following material is designed to help the new criminal lawyer without substantial financial resources traverse the minefield of accessing information on the Internet. Tip: If you do legal and factual research on the Internet, be sure to obtain high speed Internet access connections, e.g., DSL. Dial-ups are way too slow for web-based research work.
Openings and Arguments
Learning How to Speak Directly to the Judges: In presenting the arguments, what do you say (intention), what order do you say it in (sequence), how do you remember what to say (memory), how do you say it well (delivery style), and how do you you use non-verbal communicators to enhance your verbals (kinesics)? Your linguistic practices play a big role in how persuasive you are when you are given the opportunity to speak directly to the jurors. You'll need to know how to use figures of speech, e.g., analogies and rhetorical questions that won't backfire. You'll need to know how to construct a hook or grabber to gain the attention of the jurors at the outset of your openings and arguments. You'll need to know how to dovetail facts into the instructions of law and how to argue logical inferences, rather than unsupported conclusions. Rather than spouting law school legalisms like an arrogant popinjay, you'll need to use expressive language that underscores the strongest points of your case and reduces the issues to the level common sense. You'll need to learn to sort out and focus your argument on the issues that are in controversy rather than those that are undisputed and indisputable. You'll need to learn how to tell important parts of your story in the present tense, rather than the past. You'll need to learn how to smoothly make the transition or "change gears" from one topic to another. You'll need to learn how to present and argue credibility issues when they are pertinent.You'll need to know how to repair the weaknesses in your case and confront and neutralize the strengths or your opponent's arguments.
Litigation Strategies & Tactics
Creating a Journal Filled with Thoughts to Jolt Your Introspectivity and Furnish Strength to Go Forward into Trial: Much like the 12-step program members who read an inspirational passage at the beginning of the day to bolster their efforts to live a clean and sober life, you may find it useful to collect and read inspirational thoughts as a way of getting yourself properly psyched to carry the torch at trial. It's simple. Just begin a little collection of thoughts that inspire you: I have a whole journal filled with brief insights that I find inspirational, e.g., You are the hammer, not the anvil. / Boldness augments courage, hesitation augments fear. / A confrontational approach is not always best. There is more than one way to skin a cat. / As Napoleon said in discussing war," We often get in quicker by the back door than the front." / Divide the fire and you can put it out easier. Within the bounds of ethics, create numerous barriers for your opponent and few for yourself. Stretch the opposition thin.
Strategize: Read as much as you can about trial strategy. There are numerous basic rules, e.g., don't call the defendant as a witness in his own behalf if you are ahead when the prosecution rests, and lots of sophisticated musings in the voluminous advocacy literature available to you. A lot of trial practice is played in a six-inch courtroom, the forum between your ears. Sometimes you will find good strategies in unlikely places. For example, the thirteen chapters of The Art of War by the great general Sun Tzu contain numerous stratagems for both conquering an enemy and remaining unconquerable in time of war. The general felt that "all warfare is based on deception." Although your courtroom foe is an adversary not an enemy, you may find some of Sun Tsu's suggestions applicable to courtroom battles, e.g., if the opposition is rested, force them to exert themselves; whoever occupies the battleground first and awaits the enemy will be at ease, and whoever must race to the conflict will be fatigued; if they are angry, perturb them; if they are united, cause them to be separated; be deferential to foster their arrogance; determine the enemy's disposition of force and concentrate where they are fragmented; attack where they are unprepared; don't let the enemy know where you will attack him because if your point of attack is not known, the enemy must prepare to defend all his positions; go forth where they will not expect it; although you are capable, display incapability to them; when employing your forces, feign inactivity; when you objective is at hand, make it appear distant; if your enemy is fording a river, let half of it pass to the other side before attacking it; when engaging the enemy on foreign ground, one who does not employ local guides cannot gain advantage of terrain; before engagement, determine whether the majority of factors are in your favor; if you cannot be victorious, assume a defensive posture; know yourself and your enemy - if you know yourself and know your enemy, you will be victorious; if you know yourself and do not know your enemy, you will sometimes be victorious; if you know neither yourself nor your enemy, you will be defeated.
Trial Tips: Here are some defense trial practice tips for preparing your case:
Human memory is fallible. It's not possible to remember everything that you need to do in preparing your case. One solution is to develop and use checklists. Many defense trial practice books contain checklists. You may even find checklists on the Internet. ( 1 - checklist for handling capital cases). Checklists come in handy in a variety of situations, e.g., motions, proof, predicates. Like a pilot before takeoff, you can use your checklists to ensure that you don't overlook important matters. It's not particularly difficult to develop checklists if you are a skilled and seasoned practitioner. If you are a new criminal defense lawyer, you may have to sweat bullets to develop your own first series of checklists. The value of creating case checklists is that if forces you to step back and take a hard look at the way you want to approach your cases. Once you have a checklist ,you can save it, improve it, and use it over and over. Just document the general and specific steps that lead up and into trial, e.g., investigation completed, formal and informal discovery completed, lay and expert witnesses interview and prepared, pretrial motions prepared and presented, trial motions readied, notices filed, voir dire-opening-cross-summation prepared and practiced, file (pretrial and trial notebooks) organized, exhibits prepared and reviewed, exhibit list completed, demonstrative visuals prepared and reviewed, subpoenas issued, witnesses alerted, etc. Within each segment of the trial, e.g., voir dire, opening, direct, cross, experts, exhibits, summation etc., you can prepare standard checklists that can be modified for the particular case. For example, your standard voir dire checklist might include some of the following: introduce parties, reason for voir dire, length of trial, explain defense, acquainted with parties or witnesses, knowledge of case, burden of proof, presumption of innocence, reasonable doubt, personal data of juror (occupation, length, duties, marital status, spouse's occupation, children, civic organizations, previous involvement in criminal cases,etc.) and so on.
Notebooks to Help Manage Your Case - Pretrial and Trial
Using Case Specific Pretrial and Trial Notebooks and a General Trial Workbook: Your plan of attack and defense should appear in black-and-white in your pretrial and trial notebooks. The notebook can be paper or electronic. Most new lawyers should go with the electronic trial notebook. You should also construct a single trial workbook that contains useful documents, e.g., the rules of evidence, a list of common objections, a ZIP code map of the locale, etc, that you can use in every case.
Managing Your Case with an Electronic Trial Notebook:There are a number of support software packages that can help with litigation and investigation management of your case. Two of these information management systems that have received some positive plaudits are Casemap/Time Map (two separate software packages from CaseSoft, the first being litigation support and the second being a time-line developer) and WinForce (designed for criminal cases by a former federal prosecutor and billing itself as storing and organizing needed data and continually updating itself with notes, interviews, and testimony). There are imaging and online database service providers that can help with the management and security of documents. When you are preparing to provide the opposition with discovery or counter-discovery and want to number the pages you are delivering or scanning, it may be useful to try a software program that numbers each page as you run them through an ink-jet printer.
Using Topic Dividers for the Paper/Electronic Notebook : Your pretrial notebook should contain separate tabbed dividers. The subjects may vary, but a common approach is to have dividers with such subjects as: Things To Do , Client Information, Fee Agreement, Police Reports, Witness Statements, Preliminary Hearing, Grand Jury, Pretrial Brainstorms, Discovery, Pretrial Motions, Research, Exhibits/Visuals, and Game Plan. If you have a separate trial notebook for trial, it should contain dividers covering such basic subjects as: Jury Selection, Opening Statement, Experts, Prosecution Witnesses, Defense Witnesses, Jury Instructions, Argument, Punishment, Errors for Motion for New Trial. Here are a couple of lawyer generated articles describing how to prepare and utilize a trial notebook: (1), (2).
Getting Ready for Each Witness : Use a pocket divider in your three-ring binder paper notebook to store your planned questioning of each witness.Have a section for each witness in your electronic notebook.
Preparing Exhibits, Visuals and a Trial Kit for Courtroom Presentation
Planning the Visual Aspect of Your Case Story : Some things are beyond the realm of words. Some things can only be understood by being seen. Like it or not, defenders and prosecutors alike must present something more than a case of words. Visuals are a necessity. This is good because visuals can make a good case theory more understandable and palatable. You'll need to plan and prepare your visuals well before trial.
Learning How to Use Technology to Assist Your Presentation : Check the technology page for help in preparing electronic visuals. PowerPoint seems to be the linear software of choice for those who first put their toes in the water by plugging their computers into the electronic courtroom, though there are other linear software packages that do an equally good job, e.g., Corel Presentations. For those who like the flexibility of moving electronically at will from one item to another, rather than progressing in a linear fashion, the most popular choice from anecdotal reports appears to the Sanctions II case presentation software from Verdict Systems in Tempe, Arizona. Prosecutors rave about the most recent version of Sanctions II; it seems to run around $600, plus an additional fee for annual support. Defenders with presentation savvy should definitely check it out.
Preparing a Trial Kit for Courtroom Support: You will need a trial kit that contains some hardware. Most of the items will fit in a large briefcase. Depending on the accessories provided by the court, you may need a portable easel, flip chart, dry erase board, overhead projector, video document camera, etc. But you will probably always need the following:
pens (red, black)
pencils and portable pencil sharpener
tabletop pencil/pen holder
colored magic markers
colored dry erase pens and an eraser
laser pointer (preferably green rather than red) & batteries
coiled measuring tape (50' or more)
a cheap plastic tarp (Wal-Mart or Sears/K-Mart variety)*
stapler & staples
roll of masking tape
roll of clear tape
blank overhead transparencies
artist's portfolio carrying case for charts
portable tape recorder & extra batteries [Note: Some time ago, the FBI and DEA switched to digital recorders for undercover work; police undercover agencies are also doing so; you should definitely consider buying digital rather than analog.]
Polaroid camera & film
bottle of water
trial workbook with documents that you need for every case
Source: Roy Moses, http://criminaldefense.homestead.com/Pretrial.html